1604130 (Migration)

[2016] AATA 4440

1604130 (Migration) [2016] AATA 4440 (22 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lloyd Anthony Rodrigues
Mrs Evadne Berthe Rodrigues
Miss Amanda Rodrigues
Miss Kylie Anne Brooke Rodrigues
Mr Liam Angus Rodrigues
Miss Sephora Margretta Rodrigues

CASE NUMBER:  1604130

DIBP REFERENCE(S):  BCC2016/476035

MEMBER:Carolyn Wilson

DATE:22 September 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision 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 22 September 2016 at 12:28pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 March 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 first named applicant had not complied with a condition 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 20 September 2016 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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(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?

7. 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. Condition 8107(3) requires the following:

   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[1]:

   (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

   [1] 8107(3A) does not apply in this case.

8. On 9 September 2015 the sponsoring employer National Oilwell Pty Ltd wrote to the Department to advise the applicant ceased employment with them on 31 August 2015.   The applicant does not dispute this. 

9. The applicant claims to have commenced work with a labour hire company in March 2016.  However they are not an associated entity of the sponsor.

10. The applicant ceased working for her sponsor on 31 August 2015.  He has not been working in the business of the sponsor, or an associated entity, and had ceased working there for a period exceeding 90 consecutive days.

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 Subclass 457 visa was granted for the purpose of the applicant’s travel and stay in Australia to work temporarily in a nominated position for a standard business sponsor. The applicant says he worked for the sponsor from December 2013 until being made redundant in August 2015.  However even prior to the redundancy he was no longer employed full-time, such that instead of the agreed 4 weeks on and 4 weeks off, he was off work for 6 to 12 weeks between jobs.

14. The Tribunal accepts the applicant’s redundancy was due to a downturn in the industry and was a matter outside of his control.  He has tried to find another sponsor.  However in the more than 12 months since the redundancy he has not secured one.  He was unemployed from August 2015 to March 2016, a period of around 6 months.  The Tribunal gives significant weight to the brevity of time for which the applicant worked full-time in the approved position, and his inability to secure another approved nomination with a sponsor in the last 12 months.

15. The applicant has now found work through Oil Consultants, a labour hire agency, who have placed him with Halliburton Australia Pty Ltd.  The applicant says Halliburton’s are interested in sponsoring him for a 457 visa, however they are not willing to do so until possibly in 2017.

16. The applicant claims the visa should not be cancelled because he has the offer of another sponsorship in 2017 and because the family sold everything to start a new life in Australia.  Although he is an Indian citizen, he has lived and worked in Dubai for the last 27 years. His children were born there.  They now have no rights to return to Dubai and would have to go to India.  They have settled into jobs and schools in Australia.  If they had to leave Australia for India it would disrupt the children’s education, as they have already missed the start of the Indian school year.  They would be worse off financially, and would be moving to India with nothing.

17. The Tribunal acknowledges the practical difficulties for the applicant and the expenses that will be incurred in moving to India.  However, the applicant should have been aware he was coming to Australia as the holder of a temporary visa, not permanent residency. The risks in selling everything to come to Australia, for only a temporary visa, were risks that he chose to take.

18. The Tribunal has considered the applicant’s claim that he has found another employer who will sponsor him in 2017. Thus he asks that he be allowed to remain in Australia on a reinstated 457 visa until that time.  The applicant has provided a letter from Mr Colin Dougan, the Operations Manager of Halliburton Australia Pty Ltd.  Mr Dougan says the applicant is highly skilled and that his experience is an asset to their operation.  He writes however that:

    ‘I may offer him the nomination in early 2017 as we see a possible increase in market activity.  The company has currently put a hold on all nominations due to the present downturn in the oil and gas market.  However, this is only a possible date that can be variable due to the volatility of the present business”.

19. The Tribunal considers the possibility of sponsorship by Halliburton is too speculative to be a significant factor in favour of reinstating the applicant’s 457 visa.  Whilst the Operations Manager of Halliburton says the applicant is a valuable worker, they have not employed him directly, and are not willing to sponsor the applicant at this time, even knowing the precariousness of his situation. There has been a possibility of sponsorship by Halliburton since the applicant advised the Department of this in November 2015.  Nearly 12 months on there has been no nomination by them, no indication of a nomination this year, and only the possibility of a nomination next year if the market improves. 

20. The Tribunal has taken into account the applicant’s conduct towards the Department. There is no evidence he has been uncooperative.

21. The Tribunal is not aware of any claims or circumstances that would result in any international obligations being breached as a result of the cancellation. 

22. The Tribunal acknowledges the cancellation of the visa means the applicant will need to depart Australia within a set time period to avoid becoming unlawful.   The applicant’s wife and children would be affected by a consequential cancellation under s.140.  The Tribunal considers these are intended consequences and gives them little weight. 

23. The Tribunal has considered the hardship that will be caused to the applicant if the visa remains cancelled, particularly his concerns about his children’s education and his reluctance to move to India after leaving there so long ago and without having made money in Australia.  However, the Tribunal gives greater weight to the purpose of the visa, that is, to work temporarily under the 457 program for an approved sponsor in his nominated skilled occupation.  The applicant entered Australia as the holder of this 457 visa in December 2013 but has not worked for his sponsor since August 2015.. The Tribunal acknowledges the applicant’s claim that the employment was terminated by his sponsor due to a market downturn, and was a circumstance out of his control. However the Tribunal gives significant weight to the inability of the applicant to obtain another sponsorship in his occupation in the last 12 months, and the inability to obtain sponsorship in the near future.  The Tribunal considers it would be inconsistent with the purpose of the 457 visa program to enable the applicant to remain working in Australia for a labour hire company, and without a sponsor being accountable for the sponsorship obligations attached to this visa. The applicant is not currently working for an approved sponsor and has not for over 12 months. The Tribunal finds this circumstance outweighs the hardship caused by the cancellation.

24. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

25. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Carolyn Wilson
    Member