1602075 (Migration)

[2016] AATA 4318

1602075 (Migration) [2016] AATA 4318 (2 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Apenisa Tuivai Vueti
Ms Kelera Soli
Miss Kelera Grace Vueti

CASE NUMBER:  1602075

DIBP REFERENCE(S):  BCC2015/3724651

MEMBER:Jennifer Ciantar

DATE:2 September 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 02 September 2016 at 3:04pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 February 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8107 of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The applicants appeared before the Tribunal on 10 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Marsha and Andrew Chavasse.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 was attached to the applicant’s visa. This condition requires that the applicant works only in the occupation listed in the most recently approved nomination for the holder and if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

9. The applicant gave evidence to the Tribunal that he ceased employment with the sponsor, Red Hot Electrical Pty Ltd atf Ritchings Electrical Trust, because the business closed down. He and about eight other electricians lost their jobs, although a number of these electricians had set up their own businesses and become subcontractors prior to the sponsor closing down. The sponsor had given the staff about two months’ notice that the business was going to close down and the sponsor had tried to assist the applicant to find alternative employment but without success. The applicant ceased work on 14 August 2015, which was the date that the sponsor notified the Department. The applicant has not worked since.

10. On the basis of the oral evidence provided at the hearing the Tribunal finds the applicant ceased employment with his sponsor on 14 August 2015. He has not returned to work for the sponsor or an associated entity of the sponsor since that time. The Tribunal finds that the applicant ceased employment and the period has exceeded 90 consecutive days. He is therefore in breach of condition 8107.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

13. The Tribunal has taken into consideration that the closure of the business and therefore the applicant ceasing employment are factors beyond his control. The Department’s file indicates that the company officially ceased operation on 14 August 2015. The delegate gave weight to finding that the applicant had had 5 months to find a new sponsor but had not done so. However, the applicant gave evidence that the sponsor had tried to assist him to find new employment but without success. Therefore the applicant decided to apply for his Queensland Electrical licence which would improve his employment opportunities. He had to sit some theoretical and practical tests with Skills Tech Queensland and also apply for a skills assessment, and this took about eight weeks. The Department’s file contains a positive skills assessment from Vetassess for the occupation of electrician, dated 22 October 2015, which supports the applicant’s oral evidence.

14. The Tribunal accepts the applicant’s evidence that after he obtained a positive skills assessment and license he approached many electrical companies not only in Mackay but also in Rockhampton and Cairns, in order to find employment. Due to the downturn in mining, it has taken him some time to find a new sponsor. He has now been nominated by a new employer, Pioneer Families Pty Ltd T/A Chavasse Electrical, for the position of electrician and the nomination application was lodged with the Department on 23 April 2016. The proposed employer attended the hearing and gave evidence that they have offered the applicant the position of electrician as they believe that his skills set matches their organisation’s needs. They operate an electrical business which has been running for about four years and they have been looking for a suitable electrician since October 2015.

15. The Tribunal allowed the applicant time to provide information to show that the nomination had been approved. On 26 August 2016 the applicant confirmed that the nomination application lodged by Pioneer Families Pty Ltd T/A Chavasse Electrical had been refused. However, the applicant’s representative told the Tribunal that the refusal was due to an error in the application and a new application was lodged on 18 August 2016. The Department had undertaken to give the new application priority.

16. In regard to the degree of hardship that the cancellation may cause, the applicant stated that since his visa was cancelled, he, his wife and six-year-old daughter have had to rely on his wife’s income as a full-time cleaner at an aged person’s home where she has been employed since November 2015. The applicant stated that it would cause him and his family financial hardship if he had to return to Fiji. He is not sure if he would be able to find employment or how long it would take to do so. Because he has been living in Australia for more than seven years, he and his family have adapted to the Australian lifestyle and culture. The applicant stated that his daughter has settled into a local school and has made friends. The applicant’s wife stated that it would be difficult for her to find employment in Fiji as she is not qualified compared to her husband. They would probably have to live in the village where their families reside, which is about an hour’s drive from the nearest big town. The Tribunal accepts that the ongoing cancellation of the visa would have a negative impact on the applicant and his family financially as their employment prospects are better in Australia. The Tribunal also accepts that the applicant’s daughter has settled into school in Australia and it would be disruptive for her if she had to return to Fiji although the Tribunal notes that she is young and only commenced school recently.

17. The Tribunal also accepts that the applicant and his family make a positive contribution to the community. The applicant stated that he and his wife have been providing family members in Fiji with some financial assistance as they suffered damage to their accommodation as a result of Cyclone Winston. The applicant has provided evidence that he  is a minister with Revival Ministries Australia and he runs various workshops and training programs, and also coordinates house and church services in the area. He is also the secretary of the Fijian Association in Mackay and liaises with the Mackay Regional Council. He recently co-ordinated cyclone relief for Fiji and a container of food was dispatched from the Mackay area. He also liaises with local sporting groups such as the AFL.

18. The applicant also stated that the Subclass 457 visa he held was the second 457 visa he has had and it was due to expire in May 2017. He had planned to lodge a Subclass 189 skilled visa but although he obtained a positive skills assessment, he has been unable to achieve the required IELTS result. There is no evidence before the Tribunal that the applicant has failed to comply with any other visa conditions. There are no concerns regarding the applicant’s past and present conduct towards the Department.

19. The Tribunal finds that the applicant wants to remain in Australia to work as an electrician, as the sponsored employee of the new sponsor. The Tribunal is satisfied that there is a related nomination before the Department. The Tribunal is satisfied that the applicant has the skills, qualifications and employment background to perform the duties of an electrician and indeed, since the visa was cancelled he has pursued further studies and obtained a positive skills assessment. The Tribunal gives this factor significant weight in its consideration and finds in favour of not cancelling the visa.

20. The Tribunal has found that the circumstances in which the ground for cancellation arose were beyond the applicant’s control. The Tribunal has also taken into account that the applicant is a skilled tradesperson prepared to work in rural locations where his occupation may be in short supply. The Tribunal has also given weight to the fact that the applicant has found a new sponsor and he is the subject of a nomination application. Although the nomination application was refused, the Tribunal accepts the advice of the representative that this was due to an error and the Department has advised it will give the new application priority processing. As the review application process has been protracted, the Tribunal has decided to not wait for the outcome of the current nomination application.

21. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

23. The Tribunal has no jurisdiction with respect to the other applicants.

    Jennifer Ciantar
    Member