1602546 (Migration)

[2016] AATA 4181

1602546 (Migration) [2016] AATA 4181 (3 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jacob Jr Barquilla Pajoyo

CASE NUMBER:  1602546

DIBP REFERENCE(S):  BCC2016/296411

MEMBER:Rania Skaros

DATE:3 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 August 2016 at 10:12am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 February 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s 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 did not comply with condition 8107. 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. When applying for review, the applicant provided a copy of delegate’s decision record. The applicant was represented in relation to the review by his registered migration agent.

4. The applicant appeared before the Tribunal on 12 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jesse McMahon.

5. 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

6. 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(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.

   Background evidence

7. The applicant is a 40 year old national of the Philippines. He was sponsored by under the temporary business entry program by Simmcal Pty Ltd. A nomination in respect of the applicant was approved on 6 February 2015 and the applicant was granted a Subclass 457 visa on 6 February 2015 for a period of 4 years.

8. On 16 June 2015 the Department received information indicating that the applicant ceased employment with Simmcal Pty Ltd on 23 May 2015. On 16 February 2016, the Department sent to the applicant a notice of intention to consider cancellation of his Subclass 457 visa under s.116 of the Act. The notice set out the particulars of the grounds for cancellation which indicated that the applicant appears to have breached condition 8107.

9. The applicant provided a response to the notice which the Tribunal has had regard to in its considerations further below.

10. In deciding to cancel the visa, the delegate noted that the nomination in respect of the applicant by Robertson McMahon Pty Ltd had been refused by the Department.

11. On review, the applicant advised the Tribunal that a new nomination by Robertson McMahon Pty Ltd in the occupation of Automotive Electrician (321111) in relation to him has been lodged with the Department. On 2 August the Tribunal received evidence that the nomination in respect by of the applicant has been approved by the Department.

12. The Tribunal has considered all of the evidence before it as follows.

    Does the ground for cancellation exist?

13. 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 attached to the applicant’s visa. Of relevance is 8107(3), which provides:

    (3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)      the holder:

    (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)      unless the circumstances in subclause (3A) apply

    (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor…

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days

    …………

14. The Tribunal is satisfied on the evidence that 8107(3A) does not apply in this case.

15. The applicant was sponsored for a 457 Visa by Simmcal Pty Ltd. The nomination in respect of the applicant by Simmcal Pty Ltd was approved on 6 February 2015. The applicant ceased work with Simmcal on 23 May 2015. As more than 90 consecutive days have passed since the applicant ceased employment with his sponsoring employer, the Tribunal finds that the applicant did not comply with condition 8107 of his 457 visa.  

16. 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

17. 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’.

18. The Tribunal has first considered the purpose of the applicant’s travel and stay in Australia. The applicant travelled to Australia to work for Simmcal Pty Ltd, the company that initially nominated him under the temporary work visa program. The applicant gave evidence that he was keen to work for Simmcal but the company advised him and other employees in May 2015 that their services were no longer required. The applicant claimed that the termination of his employment was out of his control and that he attempted to find another employer to sponsor him within 90 days. He gave evidence that he was contacted by Robertson McMahon Pty Ltd (t/a Peter Brown Auto-eclectics) in the Northern Territory who agreed to nominate him.  At the hearing the applicant told the Tribunal that Robertson McMahon’s finance manager lodged the nomination on behalf of the company and that the wrong occupation was indicated on the forms and the nomination was consequently refused. The representative told the Tribunal that the reason the applicant was unable to secure a new nomination before the 90 days is because there was delay as Robertson McMahon Pty Ltd had to renew its sponsorship and that the finance manager decided to first wait for the outcome of the sponsorship before lodging the nomination respect of the applicant. The representative stated that a number of errors were also made in the first nomination which resulted in its refusal.

19. Mr Jesse McMahon gave evidence that his Company has a genuine need to employ the applicant and that they still require two more auto electricians to keep up with the workload. He stated that he approved the employment of the applicant and that the applicant has been undertaking field work in Catherine NT for the company as an auto-electrician and has become a vital part of their business.

20. The Tribunal has also considered the evidence that the occupation of Automotive Electricians, the approved occupation, is on the Northern Territory skilled occupation priority list (NTSOPL) and the skilled occupations list (SOL).

21. Given the above evidence, and in the light of the fact that the applicant is the subject of a current approved nomination, the Tribunal is satisfied that the applicant will now be able to fulfil the purpose of the temporary work visa and that there is a need for him to remain in Australia to fill an occupation that is in demand in the Northern Territory. 

22. The applicant gave evidence at the hearing that he has complied with the conditions of his visa. His current visa conditions include reporting, no study and notifying his address and he has complied with those conditions. He told the Tribunal that he does not have any work restrictions and has been able to work for his sponsoring employer. The Tribunal is satisfied on the evidence that the applicant has complied with the conditions of his visa and that he has generally been co-operative with the Department.

23. The Tribunal also gives some weight to the applicant’s claim that he and his family would experience significant financial hardship if his visa is cancelled and he is unable to continue working with his nominating employer. The Tribunal accepts that if the applicant’s visa is cancelled he would be affected by s.48 of the Act and would be prevented from lodging a further Subclass 457 visa onshore. The Tribunal considers that the delay that may be caused in the applicant having to travel offshore to lodge a Subclass 457 visa cause hardship for the applicant and the sponsoring employer, who has had difficulty in filling the nominated role in the Northern Territory.  

24. The ground of cancellation arose when 90 days passed since the applicant had been terminated by his former sponsor. The Tribunal acknowledges that the termination of the applicant’s employment by Simmcal was not something over which he had control and gives this circumstance some weight. The Tribunal has considered the applicant’s explanation and the submissions made by the representative as to why the applicant was not able secure another nomination within 90 days and is prepared to accept that it was due to delay on the part of the new sponsor who had to renew their sponsorship approval and relied on their finance manager, who is not familiar with immigration requirements, to lodge the nomination.  

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

    DECISION

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

    Rania Skaros
    Member