1606390 (Migration)

[2016] AATA 4409

1606390 (Migration) [2016] AATA 4409 (21 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eric Benedict

CASE NUMBER:  1606390

DIBP REFERENCE(S):  BCC2015/3343981

MEMBER:Kate Millar

DATE:21 September 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 21 September 2016 at 3:57pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Benedict was granted a Subclass 457 visa on 13 August 2012 to work for ATS (Asia Pacific) Pty Ltd as a Metallurgical or Materials Technician. On 22 October 2015, ATS was barred for a period of five years from making future applications to be a standard business sponsor. As a result of his sponsor being barred, Mr Benedict’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection under s.116 of the Migration Act 1958 (the Act).  Mr Benedict has applied to this Tribunal for a review of that decision. 

2. Mr Benedict’s visa was cancelled under s.116(1)(g) of the Act because a ground prescribed in r.2.43 of the Act was made out. The prescribed ground in r.2.43 is (among other things), that the sponsor has been barred or cancelled under s.140M of the Act. If a ground for cancellation is established, the visa may be cancelled. 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. Mr Benedict appeared before the Tribunal on 20 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Arumugam Ramalingam and Mrs Sadaf Benedict.   Mr Benedict was represented in relation to the review by his registered migration agent.

4. 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

5. Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. 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?

6. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). The ground that applies in this case is r.2.43(l)(iv) that states that for the primary holder of a Subclass 457 visa who is or was sponsored a standard business sponsor, the circumstances are where the sponsor has been cancelled or barred under section 140M of the Act.

7. In this case, Mr Benedict was the holder of a Subclass 457 visa as the primary sponsored person.  His sponsor was ATS (Asia Pacific) Pty Ltd, which was barred from making future applications as a sponsor under 140M of the Act for a period of five years on 22 October 2015. 

8. As the prescribed ground in r.2.43(l) is made out, a ground for cancelling Mr Benedict’s visa exists. As this 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

9. 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’.

10. A notice of intention to cancel Mr Benedict’s visa was issued by the Department on 21 December 2015.  In response, Mr Benedict said he had found a new sponsor, and an application to approve a new nomination had been made by Total Reliable Solutions Pty Ltd.

11. The notice of intention to cancel Mr Benedict’s visa was sent to him on 21 December 2015, and the new nomination application was lodged on 24 December 2015.  On being asked if he wanted comment about the timing of the new nomination application, Mr Benedict said he was waiting for the visa and said he was waiting for working rights.  He said he is not working because there is no approval of a nomination and did not have work rights.  To the date of this decision, this nomination application has not been approved or refused. 

12. In the absence of a decision to cancel Mr Benedict’s visa, his visa would have ceased on 13 August 2016. 

13. It proved difficult to determine from Mr Benedict when he had last worked for ATS.  Mr Benedict described his work as a technician inspecting welds, and that he worked in Karratha for ATS.  He confirmed that he only worked in Karratha.  He said ATS lost the contract in Karratha and had no more work in Australia so he did not have a job here.  He said he worked all of 2015, but could not remember the exact date he last worked, but thought it was in November 2015.     

14. He was asked if he worked during the entire time of his visa and he said he took one month for Christmas holidays and made some other requests for holidays.  On being asked what time he had off from work, he said he father was ill so he returned to Pakistan at times to look after his father and then came back to Australia.  He said he spent most of his time in Karratha working and took one to two months off in a whole year year.

15. On being asked how much he was away and how often he was in Australia in 2013 and 2014, Mr Benedict said he could not remember for 2013, but in 2014 he went to Pakistan for the Christmas holidays and then returned to Australia in February 2015.  He went back to Pakistan in April 2015 and stayed for a few months as his father was ill and then returned to Australia.

16. Information contained in Department records of Mr Benedict’s arrival and departure from Australia put to him under s.359AA of the Act.  In particular, it was put to him that he has been offshore for lengthy periods in the course of the visa and in particular that he was out of Australia between 13 December 2013 and 5 February 2015, a period of over one year and two months.  It was put to him that if I relied on that information I would find that he had not worked consistently for his employer, and that this was relevant to the exercise of the discretion to cancel his visa.  In response he said that the most important thing was to look after his parents.   

17. After he later stated he last worked for ATS in November 2013, it was put to him under s.359AA of the Act that he was out of Australia from 24 June 2013 to 9 October 2013 and from 2 November 2013 to 2 December 2013.  In response he said his company was working with different agencies in Malaysia and in Pakistan and he worked offshore.  This contradicts his earlier evidence that he only worked in Karratha. 

18. Following the evidence of his witness, Mr Ramalingam, that the maintenance contract ATS held ceased in late 2012, Mr Benedict acknowledged he ceased work in Karratha in late 2012.  This is a matter of months after his 457 visa was granted.  Mr Ramalingan is the director of Mr Benedict’s new sponsor and was previously the operations manager at ATS. 

19. Mr Benedict then said he worked in the office of ATS in Perth to help look for new work and did tasks like emails.  On being asked whether he worked as a Metallurgical or Materials Technician at this time, he said he did. 

20. On being asked why his job was held open for him when he was away for so long, Mr Benedict said his office was not happy but that he had good experience in his work.  On asking about the association between the entity which operates overseas, which he said was Benedict Holdings, and ATS it became evident the directors of the ATS are his brother and his sister-in-law.  I find it probable his family relationship with the directors of ATS explains why he was able to remain offshore for lengthy period of time while purportedly working for ATS. 

21. In light of Mr Benedict’s attempts to obscure when he had last worked for ATS, and his willingness to provide false evidence about when he ceased work I did not find him to be a credible witness.  I do not accept he worked for overseas offices in Malaysia or Pakistan.  I do not accept he was working in his nominated occupation by late 2012. 

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

22. The purpose of a Subclass 457 visa is to fill short term skills shortages in the Australian labour market.   

23. Mr Benedict was offshore for a large part of the time he has held the visa.  He has not worked since late 2012.  The visa was granted on 13 August 2012, and in the four year period of the visa he has worked less than four months.  That he has not worked since late 2012 is not consistent with the purpose of the visa and weighs in favour of cancelling the visa. 

24. I asked what action he had taken to get another job, and Mr Benedict said that in early 2013 the company in Perth was continuing although the work in Karratha had ceased, and his brother’s company was paying his wages and he did office work.  I do not consider this shows he continued to work in his nominated occupation or looked for another sponsor in his nominated occupation.

25. An application for a new nomination was made on 24 December 2015, approximately three years after he last worked, and after he had received a notice of intention to cancel his visa.  In light of the length of time he ceased work I do not accept that this nomination shows an intention to work in Australia consistent with the purpose of the visa.

26. Mr Ramalingam said the intention is for Mr Benedict and Mr Benedict’s brother to work to Total Reliable Solutions, which plans to manufacture panels.  He said the company currently has no employees other than the two directors.  It has not purchased the machinery required to manufacture the panels, and Mr Ramalingam said he intends to visit China next week to look into purchasing the equipment. Mr Ramalingam said the funding for the equipment will come from an investor in Jordan, The Rkaez Group of Companies.  He said Total Reliable Solutions also intends to provide maintenance services for Yarra Pilbara but as Yarra Pilbara’s new plant had not yet been commissioned the work had not eventuated.  At best, I consider the proposed work to be speculative, and given Mr Benedict’s history of not working for the majority of this current 457 visa I do not accept he intends to work for Total Reliable Solutions. 

27. In terms of whether there are any compelling reasons for him to remain in Australia, Mr Benedict said everything is in Australia now, that his children were born in Australia and they attend kindergarten in Australia.  He said he has been in Australia since 2006.

    The extent of compliance with visa conditions

28. Mr Benedict ceased work in late 2012.  As such he has been in breach of the conditions of his visa since this time. 

    The degree of hardship that may be caused  

29. Mr Benedict says he has been in Australia since 2006, and has lived here for much of his life.  He said he has had a hard time because his visa was cancelled and that he needs work rights and permanent residency. 

30. Mr Benedict alluded to heath concerns for his children if they were to return to Pakistan, however I do not consider these concerns are genuine or warranted as he acknowledged his children and wife have travelled with him to Pakistan in the period he was in Pakistan. 

    The circumstances in which ground of cancellation arose

31. Mr Benedict said that his sponsor went into liquidation, and this led to his employment ceasing.  I have found his employment ceased not long after the grant of his visa.  I accept in Mr Benedict’s favour that ATS lost a contract for maintenance services in Karratha and this led to him having no work.

    The past and present conduct of the visa holder

32. Mr Benedict has not complied with other conditions of his visa for a considerable period of time.  He has been absent from Australia for much of the period of his current visa, and sought to obscure this in his oral evidence.  This conduct does not weigh in his favour when considering whether his visa should be cancelled. 

    Whether there are mandatory legal consequences if the visa is cancelled

33. Of the visa is cancelled, Mr Benedict and his family will be required to leave Australia, and there are limited types of visas he may apply for onshore.  It does not prevent him from applying for a visa from out of Australia. 

34. There is a current application for approval of a nomination for Mr Benedict to work for Total Reliable Solutions. 

35. As his visa would have ceased if it were not cancelled, if this nomination is approved, then applying from offshore would be the normal course of events.  In his application Mr Benedict would need to show he has substantially complied with the conditions of his last substantive visa (cl.457.221 of Schedule 2 of the Regulations), that he has not acted in contravention of particular provisions of the Act (cl.457.223A) and that he meets certain Pubic Interest Criteria in Schedule 4 of the Regulations (cl.457.224).  The majority of these provisions would have to be assessed regardless of whether or not his visa is cancelled.

36. Of these requirements, Public Interest Criterion 4013 sets out risk factors that include where a person has had a visa cancelled because he or she was found to have worked without authority (PIC4013(2)(a)).  A risk factor may mean the person does not meet the requirements for a period of three years after the cancellation (PIC4013(1)(a)).  As the ground for cancellation in Mr Benedict’s case involves ceasing work for longer than 90 days, and does not involve cancellation for working without authority, this does not apply. 

    Whether there would be consequential cancellations under s.140

37. Mr Benedict said his wife and children are on spouse visas.  I assume he means they are secondary applicants on his 457 visa.  Their visas will be consequentially cancelled under s.140 of the Act if his visa is cancelled.

    Whether any international obligations would be breached as a result of the cancellation

38. Mr Benedict said he did not want to return to Pakistan because he is Christian, and Pakistan is a Muslim country.  He did not identify any other hardship he may suffer if he were to return to Pakistan.  I do not accept he believes he would suffer harm should he return to Pakistan due the lengthy periods he has chosen to live in Pakistan after his 457 visa was granted, and chose to take his wife and young children with him to Pakistan when he returned.  His mother remains in Pakistan. 

39. Mrs Benedict gave evidence that the only reason they could not return to Pakistan was that they do not want to return, however I accept that her evidence may have been limited by her English language ability. 

40. There is no suggestion the children would be separated from their parents if the visa is cancelled.

41. I have considered all of the circumstances, and I consider the length of time Mr Benedict was not employed, his disregard to the immigration system by not working or seeking work during the majority of his 457 visa, and his attempts to obscure when he last worked warrant cancellation of his visa.   While he has been in Australia intermittently for approximately ten years and his children were born in Australia, he has spent much of his time in Pakistan since the grant of the 457 visa and I do not accept he believes he or his family would suffer hardship or adverse treatment should they return to Pakistan. 

    DECISION

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

    Kate Millar
    Member