1604506 (Migration)

[2016] AATA 4516

1604506 (Migration) [2016] AATA 4516 (7 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hayssam Allam

CASE NUMBER:  1604506

DIBP REFERENCE(S):  BCC2016/475917

MEMBER:Jennifer Ciantar

DATE:7 October 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 07 October 2016 at 2:04pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 March 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 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. The applicant appeared before the Tribunal on 17 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from representatives of the new sponsoring employer, ACT Formwork. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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(1). 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. This condition includes the requirement that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. In addition, condition 8107(3)(a)(i) requires that an applicant must work only in the occupation listed in the most recently approved nomination for the holder. That occupation was formworker. Condition 8107(3)(a)(ii)(B) requires that an applicant must work only in a position in the business of the sponsor or an associated entity of the sponsor.

8. The Tribunal accepts that the applicant commenced working with the standard business sponsor, Ace Demolition & Excavation, after being granted a Subclass 457 visa. The Tribunal is satisfied that the applicant ceased employment with the sponsor on 11 May 2015. The applicant claims that he has not been unemployed for 90 or more consecutive days although he has not provided any documentary evidence in support of this claim. In any case, as noted, paragraph (3)(a)(ii)(B) of condition 8107 also requires the applicant to work only in a position in the business of the sponsor or an associated entity of the sponsor (unless the circumstances in subclause (3A) apply).

9. The applicant gave evidence that he had been granted a Subclass 457 visa to work as a formworker for a demolition company. When he commenced work he was primarily asked to carry out demolitions work. He complained to the employer that this was not his approved occupation. He was only asked to do some formwork every few weeks. However, in Lebanon, he had his own formwork business and he had come to Australia to train others, not work with his hands. After 3 months, his employer had told him that if he did not like the job he could go back to Lebanon. Finally he had asked for work in formwork and he told his boss he was not qualified to work in demolishing buildings with asbestos and he did not come to Australia to be a labourer. His employer told him to leave. He ceased work for the sponsoring employer on 11 May 2015, about 3 months after his arrival in Australia.

10. The applicant had not expected his employer would report him to the Department because the employer has close connections with the applicant’s family in Lebanon. The applicant had not told the Department that he had ceased work as his brother advised him not to do so; his brother said that although the employer was at fault, the employer would not contact the Department.

11. The applicant had immediately gone to work in Wagga, in formwork, from 15 May 2015 but the work finished after 5 months and then the applicant moved to Canberra. He had not asked the Wagga company to sponsor him as he did not expect that Ace Demolition & Excavation would report him to the Department. He then worked intermittently in Sydney for different people, in formwork, filling in casual vacancies.

12. The Tribunal put to the applicant that although the sponsoring employer might have failed to comply with its undertakings, the applicant had an obligation to comply with the conditions of his visa and he might have failed to comply with other requirements of condition 8107.  Even if he had not been unemployed for more than 90 days he was required to work for the approved sponsor in the nominated position. The applicant reiterated that the situation was not his fault and he followed his brother’s advice. He had consulted a lawyer while still working for the sponsor but he never contacted the Department.

13. There is no dispute that the applicant ceased employment for Ace Demolition & Excavation in May 2015 and the Tribunal is satisfied that the applicant no longer works in the business of the sponsor or an associated entity of the sponsor. The Tribunal finds that the circumstances in subclause (3A) do not apply. The Tribunal accordingly finds that the applicant has not complied with condition 8107(3)(a)(ii)(B) of his Subclass 457 visa.

14. 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

15. 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’.

16. The purpose of the visa holder’s travel and stay in Australia was to work as a formworker. The Tribunal accepts that the applicant is motivated to work in this occupation and that he left his employment with the sponsor for the reasons he gave, which was that he was expected by the sponsor to perform other duties. The applicant gave persuasive evidence that he had his own formwork business in Lebanon and that he had continued to seek employment as a form worker after leaving his employment with the sponsor. However, the Tribunal is not necessarily persuaded that the applicant left his employment for reasons that were beyond his control. The Tribunal is of the view that the applicant could have approached the Department or an agent for assistance in negotiating with the employer regarding his duties.

17. The Tribunal has serious concerns about the applicant’s failure to notify the Department when he ceased employment with the sponsor or to look for a new sponsor at that time. At hearing, the applicant failed to demonstrate much understanding of his own obligations to comply with visa conditions and repeatedly told the Tribunal that the sponsor had been at fault in not providing the applicant with employment as a formworker and that he had not contacted the Department as he had taken his brother’s advice that the sponsor would not report him. The Tribunal has concerns about whether the applicant would comply with visa conditions in the future given his apparent lack of understanding of his own obligations to comply with the conditions attached to his Subclass 457 visa.

18. In regard to the degree of hardship that the cancellation might cause, the Tribunal accepts that if his visa remains cancelled the applicant would have to return to Lebanon and re-establish his business. Although he said he has sold his belongings, the applicant also said he has a house and some land in Lebanon and his wife and children are still there. The applicant also stated that if he has to return to Lebanon he would have to try to establish a business again. He has family in Lebanon and had planned to bring his wife and 3 children to Australia when he was established and had some savings. He owns a house and some land in Lebanon. He sold everything when he came to Australia.

19. The applicant gave evidence that he has now been working for ACT Formwork for about 2 months and they have applied to sponsor him.  The Tribunal gives some weight to the evidence of the applicant’s current employer about the difficulty in attracting skilled form workers and the Tribunal also takes into account that their business is located in Canberra, a location which can exacerbate difficulties in locating skilled trades people. The applicant has provided evidence to the Tribunal that the Department has recently approved the nomination lodged by ACT Formwork for the position of carpenter, which the Tribunal takes to mean a formwork carpenter.

20. The representatives of ACT formwork gave evidence to the Tribunal that the applicant is a very valued employee and if he could speak English he would have a supervisory role in respect of staff other than Arabic speakers. He is reliable and efficient and does the equivalent of about 2 persons work. They stated that it is very difficult to find competent trustworthy formworkers. The business currently employs about 22 formworkers and has about 10 vacancies. Getting good workers is very competitive. They further stated that if the applicant has to leave, the business would have to advertise. The business has existed in its current form since August 2015 but previously the witness was in partnership with his father; when his father became ill he closed the business and the witness started his own business. He anticipates a turnover this year of about $1 million.

21. The Tribunal has weighed its concerns about the applicant’s failure to contact the Department when he left his position with Ace Demolition & Excavation and the limited hardship a return to Lebanon would cause given that the applicant’s family are still there against the evidence that the applicant has continued to work as a formworker and has now found a new sponsor whose business may be adversely affected if the applicant’s visa remains cancelled.

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

    DECISION

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

    Jennifer Ciantar
    Member