1606942 (Migration)

[2016] AATA 4547

1606942 (Migration) [2016] AATA 4547 (17 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yoan Lucin Robert Thiault

CASE NUMBER:  1606942

DIBP REFERENCE(S):  BCC2016/773466

MEMBER:Denise Connolly

DATE:17 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2016 at 12:28pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 May 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 applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was sponsored by All-Cast (NT) Drainage Systems P/L (All-Cast). The nomination for the occupation Carpenter was approved on 30 January 2014 and the applicant’s Subclass 457 visa was granted on 2 July 2014. Condition 8107 was attached to the visa. In the applicant’s case it requires the applicant to work in the occupation listed in the most recently approved nomination and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Department was informed that the applicant had ceased employment with the sponsor, effective 20 October 2015. On 1 April 2016 the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant responded and the delegate states he took those submissions into account but noted that the applicant was not the subject of another approved nomination. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had ceased employment for a period exceeding 90 days and therefore breached condition 8107(3)(b).

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 29 August 2016 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

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 attached to the applicant’s visa. In the applicant’s circumstances, this condition requires the applicant to work in the occupation listed in the most recently approved nomination, and if the applicant ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

9. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records, among other things, that condition 8107 was attached to the applicant’s Subclass 457 visa, granted on 2 July 2014 on the basis of his employment in the position of Carpenter at All Cast (NT) Drainage Systems P/L. It also records that the applicant ceased his employment with the sponsor on 20 October 2015. The applicant has also informed the Tribunal that he ceased working for the sponsor on 20 October 2015. He confirmed he has not returned to the employment.

10. On the basis of the delegate’s decision record and the applicant’s oral evidence provided at the hearing the Tribunal finds the applicant ceased employment with his sponsor on 20 October 2015. He has not returned to employment since that time. As discussed below he has established his own business which has nominated the applicant as a Construction Project Manager.  The Tribunal finds the applicant has ceased employment as a Carpenter for a period of more than 90 consecutive days.

11. The applicant’s representative has submitted in writing that the applicant was nominated to be employed by All-Cast in the occupation of Carpenter which is an occupation specified in an instrument in writing mentioned in paragraph 8107(3A). It is submitted therefore that this occupation is not subject to the condition regarding establishing nominated employment and the 90 day period. It is submitted the condition only came into effect as the applicant was establishing his own business which required a Construction Project Manager, and the 90 day period was breached unwillingly.

12. The Tribunal has considered the wording of condition 8107. It is satisfied the applicant is subject to paragraph 8107(3)(a)(i), that is, that the applicant must work only in the occupation listed in the most recently approved nomination for the applicant, that is, Carpenter. It is also satisfied that he is subject to paragraph 8107(3)(b), that is, if he ceased employment – the period during which the applicant ceases employment must not exceed 90 consecutive days. The Tribunal is satisfied he is not excluded from meeting this requirement. The applicant ceased working in the nominated occupation on 20 October 2015. He has not returned to that employment or employment as a Carpenter.  He is therefore in breach of paragraph 8107(3)(b) and accordingly condition 8107.

13. 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

14. 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’.

15. The applicant made written submissions to the Department in response to the NOICC. He provided evidence that he was in the process of establishing his own business, SFC Constructions Contractor Pty Ltd. The applicant claimed he had invested at least $40000 in establishing his business. The representative provided a written submission the contents of which are consistent with and similar to a subsequent submission provided to the Tribunal, as set out below.

16. The applicant’s representative provided to the Tribunal various documents indicating that the applicant has now established his own business, SFC Constructions Contractor Pty Ltd, which was registered with ASIC on 18 January 2016. The business lodged a nomination application on 23 February 2016. The applicant believes this business will benefit the Australian economy and provide employment for Australian workers. The applicant’s business’ standard business sponsor application was approved on 5 July 2016. At the time of making the submission the nomination application was still being processed. The applicant asked that the Tribunal not make its decision until that application was finalised. It is submitted the applicant’s activities undertaken are consistent with the purpose of filling a skill shortage and working in Australia. He has complied with all other visa conditions and there will be a degree of hardship if his visa is cancelled, for the applicant and his company. It is submitted he has invested considerable funds into establishing the business.

17. With respect to the discretionary factors set out in PAM3, the representative asserts that the applicant ceased his employment with the sponsor and sought to obtain further employment. His purpose is to fill a skill shortage and work in Australia in a skilled occupation. He realised however that he had the potential to open his own business with a focus on concreting. His work as a carpenter exposed him to different types of construction work. He decided to resign in order to pursue a career change. He has provided a written statement in which he asserts that he believes he has the personality of an entrepreneur and the wish to invest and grow his own business in Australia. He believes he has all the skills required to build a successful business. This will be in the interests of the Australian economy and its people. He has researched the viability of a concrete business in Australia and, given the current construction boom in Sydney, decided to invest in the business. Regarding compliance with visa conditions, it is submitted that the applicant tried to establish his own business as soon as possible after leaving his sponsor’s employment, motivated by his desire to adhere to condition 8107. It is submitted that, as the applicant was nominated in the occupation of Carpenter and this occupation is not subject to the condition regarding establishing nominated employment in the 90 day period, the condition only came into effect when the applicant was establishing his own business which required a Construction Project Manager. It is submitted the applicant will suffer hardship if the visa is cancelled because he has invested substantial funds to establish his business. He claims ‘all together the amount invested comes to at least 40000’. The representative provided tax invoices indicating he has a number of clients who will be affected. It is asserted there are two employees and the business will provide other Australians with employment opportunities. It is asserted that any future visa application he makes will be affected by PIC 4013 and 4014.

18. With respect to the circumstances in which the ground for cancellation arose, it is asserted that it was beyond the applicant’s control that his sponsorship approval and nomination applications were not made within 90 days of the end of his employment with his sponsor. This was because of the steps he needed to take to establish his business. It is asserted the applicant has complied with all other conditions and that he has demonstrated good past and present behaviour towards the Department. It is asserted the legal consequences of cancellation will be significant for the applicant’s business as he will be forced to close it. Also he will be section 48 barred from applying for most visas onshore and subject to a 3 year ban. It is asserted the opportunities the applicant and his business can provide are in the public interest. It is asserted that Australia’s trade and business growth will be adversely affected if the visa is cancelled. It is submitted the delegate’s decision to cancel was wrong because there were extenuating factors that are compelling and it is in the public interest to not cancel the visa.

19. The applicant provided financial information about the business indicating it had start up costs of $9200, equipment/capital of $10,000, and current assets totalling $46,620 including cash of $37,168 as at June 2016. The submission also includes information about skills shortages in the construction industry.

20. At the hearing the applicant told the Tribunal that he started working for All-Cast as the holder of a Subclass 417 visa in about 2013. After about six months the employer decided to sponsor him. The applicant chose to leave his employment with his sponsor in October 2015. He confirmed that nothing went wrong and he had a good relationship with his boss. However he had improved his skills while in All-Cast’s employment and there was no opportunity for him to move to a more senior position in the business. He wanted to start his own company. Also when he started working for them in 2013 there was a lot of work but the amount of work available had decreased and there was no opportunity for him to move higher. He was doing the same thing every day. He wanted to achieve more in his employment. He sent an email to the Department indicating that he was leaving All-Cast and that he wished to set up his own business. He also wanted to move to Sydney. After leaving All-Cast he went on holidays to Indonesia for a few weeks and when he returned to Australia he moved to Sydney to make enquiries about the construction industry and to explore business opportunities. He then went on holiday to France for about 2½ months.

21. The Tribunal asked the applicant about any employment he has had since October 2015. He indicated that he worked for a few different companies for short periods at concreting and formwork. Since returning from France in January 2016 he has spent most of his time establishing his own business. The Department initially suspended his work rights but he has been allowed to work from about May 2016. He has lived off his savings which he had because he had been working for about four years.

22. When asked about the business he has established, the applicant indicated that he currently has two employees working for his company. He indicated that his business has nominated the position Construction Project Manager, identifying himself as the nominee. The Tribunal noted that his business’ nominated occupation is different to that for which he was granted his Subclass 457 visa, as required by condition 8107. He explained that while it is not assessing whether he has the skills suitable for a Construction Project Manager, it may be the case that he does not meet the skill requirements for a Subclass 457 visa for a different occupation to that of Carpenter. The applicant acknowledged that he does not have a relevant qualification but indicated he has been working in the industry for years and has relevant experience for the occupation Construction Project Manager.

23. With respect to the discretionary factors, the applicant indicated his purpose for remaining in Australia is to establish his business. He indicated that he now feels at home in Australia and he wants to remain here permanently. He confirmed that he does not have a partner relationship in Australia. The applicant indicated that as far as he is aware the only non-compliance with visa conditions is that he has not complied with condition 8107.

24. With respect to any hardship that may be caused by a cancellation, the applicant indicated that if his visa is cancelled he will suffer financial loss because he has invested money in setting up his business. The Tribunal indicated that this appeared to be a risk he was willing to take by leaving his sponsored employment. The Tribunal noted that the applicant had provided financial information in relation to his business which has significant cash on hand. It noted that the applicant appears to be in a position to pay off the business’ loan and sell its assets, suggesting he would not suffer financial hardship if the visa is cancelled. The applicant indicated the cash comes from his savings.

25. The applicant has also indicated that he currently employs two people. He indicated that one person is a Subclass 417 visa holder who commenced working for him on 1 July 2016 on a casual basis. His other employee is an Australian citizen but he commenced only on the day of the hearing, 29 August 2016. He was not previously working for the applicant. He indicated that he would be providing him with casual work in the next couple of weeks. He is a concreter/finisher. The applicant indicated that he has purchased concrete tools worth about $1500 and a van worth about $3500. He is waiting to find out whether his visa will be cancelled before he invests any further.

26. With respect to the circumstances in which the ground for cancellation arose, the applicant acknowledges that it was his own decision to leave his sponsored employment. He did this because he wished to establish his own business. The applicant confirmed that there are no consequential cancellations. When asked if he could return to France he indicated that he has family living all over the world. They recently met together in France. He had no other evidence to give in relation to any evidence to be taken into account for the purposes of the exercise of discretion.

27. The Tribunal agreed to wait before making its decision until 26 September 2016 for further information regarding his business’ nomination application for which he is the nominee. On 20 September 2016 the applicant sought further time because the Department had not made a decision on that nomination application. The Tribunal agreed to wait until 14 October 2016 for further evidence and advised that it would then proceed to make its decision.

28. On 7 October 2016 the applicant provided to the Tribunal evidence that on 6 October 2016 the Department refused the applicant’s business’ nomination application. He provided a copy of the refusal addressed to his business SFC Constructions Contractor Pty Ltd. The delegate was not satisfied that the position associated with the nominated occupation of Construction Project Manager (in which the applicant intends to work) was genuine.

    Assessment of the evidence

29. With respect to the applicant’s purpose for staying in Australia, and whether there is now a compelling need to remain here, the Tribunal accepts the applicant wishes to remain in Australia to continue running his business which he established after choosing to leave his sponsored employment. It accepts he wanted to do more and that there were no opportunities for advancement with the sponsor.  However the applicant’s Subclass 457 visa was granted so that he could fill a skill shortage in the occupation of Carpenter. The purpose of the Subclass 457 visa program is to enable employers to address labour shortages by bringing in skilled workers where they cannot find an appropriately skilled Australian. The applicant now wishes to remain in Australia as the holder of the visa to enable him to establish his business and work as a Construction Project Manager. This is not the occupation for which the Subclass 457 visa was granted. The applicant has also stated that he wishes to remain in Australia permanently. However the Subclass 457 visa is a temporary visa, not intended to provide the applicant with permanent residence. The Tribunal is of the view, in these circumstances, there may be a more suitable visa for the applicant to pursue.

30. The applicant has asserted that Australia’s trade and business growth will be adversely affected if the visa is cancelled and he cannot continue to run this business. On the evidence before it, the Tribunal is not satisfied Australia’s interests will be adversely affected. He has told the Tribunal he employs one Subclass 417 visa holder who commenced with him on a casual basis in July 2016, and that he recently employed one Australian citizen on a casual basis from 29 August 2016. He has provided some invoices demonstrating he has had some clients. The Tribunal accepts the applicant may have provided some employment, although this has only been on a casual basis so it is not satisfied those employees have an expectation of ongoing employment. It accepts he has had some clients however it is not satisfied the services his business provides is so specialised that prospective clients will not be able to secure such services from another similar business.

31. With respect to the extent of compliance with visa conditions, on the evidence before the Tribunal, it appears the only breach is in relation to condition 8107. The representative has asserted the applicant breached the condition unwillingly, suggesting that, had the applicant been able to lodge his business’ nomination application within the 90 day period there would not have been a breach. The Tribunal is not satisfied this is the case. The applicant was required to comply with paragraph 8107(3)(b) even if he intended to start up a business and lodge a nomination application identifying himself as the nominee. The applicant told the Tribunal that he left his employment with the sponsor, in the occupation listed in the approved nomination, of his own accord. The relationship had not broken down. The Tribunal is of the view the applicant breached condition 8107 when he ceased employment in the nominated occupation and the period during which he ceased the employment exceeded 90 days. The representative has indicated the applicant was not able to secure other employment after he left the sponsor however the Tribunal notes that after leaving the employment he went on holidays in Indonesia and France until January 2016. On his return from France did not return to employment in the nominated occupation.  He chose to move to Sydney to pursue business opportunities. The Tribunal is satisfied the applicant made these decisions willingly. It is not satisfied the breach of condition 8107 was outside his control.

1. The applicant has indicated he will suffer financial hardship if his visa is cancelled. The Tribunal accepts, from the applicant’s financial information provided, that he has incurred some start up costs related to establishing the business. However it is satisfied, on his own evidence, that he has assets including cash and a vehicle which he may be able to sell. The Tribunal accepts there may be some financial loss if he has to close down his business however it has formed the view that this was a risk the applicant chose to take. It is not satisfied there was any certainty that the applicant’s business’ nomination application would be approved, for the position of Construction Project Manager. The Tribunal also accepts the applicant may be disappointed if the visa is cancelled, because he has expressed a desire to remain in Australia permanently. However the applicant’s Subclass 457 visa is a temporary visa and the Tribunal is not satisfied the applicant had a reasonable expectation as the holder of a Subclass 457 visa that he would be able to remain in Australia permanently.

2. The Tribunal has considered the circumstances in which the ground for cancellation arose. The applicant has admitted that he chose to leave his sponsored employment because he wanted to establish his own business and explore other opportunities. There is no suggestion that his sponsor was in any way responsible for the applicant’s decision to leave his sponsored employment. The applicant has submitted that it was then outside his control that it took some months to establish his business and make the nomination application for which he is nominated. The Tribunal is not satisfied the circumstances in which the ground for cancellation arose were outside his control. He took the risk when he left the sponsored employment to seek other opportunities. It was his decision to establish his own business rather than stay with All-Cast or seek other sponsored employment. It was his decision to nominate himself in a nomination application for the position of Construction Project Manager, which was ultimately unsuccessful. The Tribunal is satisfied the ground for cancellation arose because the applicant made choices that led to his non-compliance with a visa condition. It is not satisfied there were relevant factors that were outside his control.

3. The delegate has indicated that the applicant has been co-operative with the Department. There is no evidence indicating his conduct towards the Department is of any concern.

4. With respect to mandatory legal consequences, the Tribunal is satisfied on the basis of the applicant’s evidence that he currently holds a bridging visa with work rights. So long as the applicant remains in contact with the Department and departs Australia when required, the Tribunal is satisfied the applicant will not become unlawful and subject to detention if the visa is cancelled. With respect to the representative’s concerns that the applicant will be s.48 barred, the Tribunal accepts that the applicant may have limited options to apply for another visa in Australia. He may also be in a position where he has to meet other public interest criteria such as PIC 4013 and 4014, depending on the visa application. However the Tribunal notes that these are the intended consequences of the legislation in respect of cancellations under s.116. There is no evidence to indicate that there would be consequential cancellations under s.140.

5. The Tribunal accepts the applicant’s family may no longer reside in France however there is no evidence to indicate any international obligations would be breached as a result of the cancellation.

6. With respect to other matters the Tribunal takes into account the evidence provided that the applicant employs, on a casual basis, two people. It also takes into account the submissions regarding the contribution the applicant can make to the construction industry and Australia’s skill shortage in this area.

7. The Tribunal has considered all of the evidence and relevant circumstances. It accepts the applicant wishes to remain in Australia to run his business in which he will be employed as Construction Project Manager. However it notes from the evidence he provided to the Tribunal that his business’ nomination application has been unsuccessful. There is no evidence to indicate that the applicant is currently the subject of an approved nomination. It gives this factor significant weight in its considerations, particularly given the purpose of the Subclass 457 visa program. The Tribunal accepts that the applicant wishes to remain in Australia permanently. However the Subclass 457 visa is a temporary visa and the Tribunal is not satisfied there is evidence to indicate the applicant had a reasonable expectation that he could remain in Australia permanently after his Subclass 457 visa ceased. The Tribunal has taken into account the applicant’s evidence regarding hardship he will suffer if the visa is cancelled and it accepts he may suffer some financial loss if the business is closed down. However the Tribunal is of the view the applicant took this risk when he left his sponsored employment and decided to start up his own business in Australia. The Tribunal is satisfied the applicant has cash and assets which he may be able to sell. It is not satisfied any hardship he may suffer as a consequence of a visa cancellation will be significant. The Tribunal is satisfied that the ground for cancellation arose because of the applicant’s own actions and decisions. It is not satisfied the applicant’s sponsor, or any other party, contributed to the circumstances leading to his non-compliance. It accepts it might have taken some time for the applicant to establish his own business however establishing a business in Australia is not the purpose of the Subclass 457 visa program, even if the business will ultimately address a skill shortage. Its purpose is to enable employers to address labour shortages by bringing to Australia skilled workers where they cannot find an appropriately skilled Australian. Ultimately his business may have been in a position to employ the applicant in skilled employment however the Tribunal notes the business’ nomination application was unsuccessful. The Tribunal gives the circumstances in which the ground for cancellation arose, the applicant’s decision to leave his sponsored employment to pursue his own business, some weight in favour of cancellation. The Tribunal accepts the applicant has employed two people casually, an Australian citizen and a Subclass 417 visa holder. However he has provided evidence regarding a skills shortage in this area and it is satisfied in these circumstances that any employees he has will be able to secure similar employment in the foreseeable future. The Tribunal also accepts the evidence that there is a skills shortage in the construction industry. This is why his Subclass 457 visa was granted. The applicant has sought however to pursue his own business venture and left his sponsored employment, the purpose of which was to fill that shortage for the sponsor. While the applicant may be affected by s.48 and required to meet public interest criteria in future visa applications, it is of the view these are intended consequences and as such the Tribunal gives these factors limited weight.  

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

   DECISION

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

   Denise Connolly
   A/g Senior Member