1609897 (Migration)

[2016] AATA 4548

1609897 (Migration) [2016] AATA 4548 (21 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ernesto Jr Francisco

CASE NUMBER:  1609897

DIBP REFERENCE(S):  BCC2016/1827213

MEMBER:Katie Malyon

DATE:21 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 21 October 2016 at 4:15pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 June 2016 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) of Mr Ernesto Jr Francisco under s.116 of the Migration Act 1958 (the Act). Relevant extracts from the Act and the Migration Regulations 1994 (the Regulations) are set out in the Annexures to this decision.

2. The delegate cancelled Mr Francisco’s visa under s.116(1)(b) of the Act on the basis that he did not comply with condition 8107 that was imposed on his Subclass 457 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. Mr Francisco appeared before the Tribunal on 16 September 2016 to give evidence and present arguments.  He was represented in relation to the review by his registered migration agent, who also attended the hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel Mr Francisco’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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. Relevant to this case, these include the ground set out in s.116(1)(b) of the Act. 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)(b) of the Act 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 Mr Francisco’s Subclass 457 visa. Relevantly, condition 8107(3)(b) requires that the visa holder must not cease employment for a period of more than 90 days.

7. The delegate’s decision, a copy of which was provided to the Tribunal by Mr Francisco, notes that advice was received from Mr Francisco’s sponsor, Oaten and Hoffman Ltd (Oaten) that his employment with Oaten ceased on 23 February 2016.  Mr Francisco told the hearing that he resigned from Oaten because he was asked to do lots of unpaid overtime and undertake duties which were inconsistent with those of being a Motor Mechanic, such as driving trucks.  He managed to find a new sponsor in Muswellbrook Motors Pty Ltd (Muswellbrook Motors).  Mr Francisco told the Tribunal he was aware he had 3 months in which to find a new sponsor and thought he had done that.  Muswellbrook Motors told him that they were ‘working on getting a nomination lodged and approved asap’ so that he could start working with them.   

8. Mr Francisco confirmed for the Tribunal that he left Oaten on 23 February 2016 the Tribunal finds that he has breached condition 8107(3)(b) by ceasing to be employed by his sponsor Oaten for a period exceeding 90 consecutive days. 

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   Consideration of discretion

10. 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’. The Tribunal has considered the circumstances relevant to the case of Mr Francisco below.

    The purpose of the visa holder’s travel and stay in Australia

11. Mr Francisco travelled to Australia specifically to take up work on a Subclass 457 visa with Oaten.  The purpose of a Subclass 457 visa is to permit the holder to work in an approved nominated position for an approved standard business sponsor.  On 21 September 2016 the Tribunal was notified that Muswellbrook Motor’s nomination application for the position of Motor Mechanic has been approved by the Department in respect of Mr Francisco.  Evidence of the approval was provided to the Tribunal.  The Tribunal considers this weighs strongly in favour of not cancelling his visa.

    Extent of compliance with visa conditions

12. Mr Francisco told the Tribunal that he not been employed under an approved nomination since 23 February 2016, that is, nearly 8 months.  This is a breach of condition 8107(3)(b) which requires that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.  He also told the Tribunal that he actually started work with Muswellbrook Motors for a couple of weeks until receiving the Notice of Intention to Consider Cancellation (NOICC) on 17 June 2016.  The Tribunal considers these factors weigh in favour of cancellation of his visa. 

13. Mr Francisco currently holds a Bridging E visa without work rights and is not working.  He has not worked in Australia since receiving the NOICC.

    Degree of hardship that might be caused (financial, psychological, emotional or other hardship)

14. Mr Francisco told the Tribunal that he wants to continue working in Australia for the benefit of his family in the Philippines especially his 4 children, all of whom are still at school.  The Tribunal does not consider Mr Francisco’s famiIy’s circumstances to be such that they constitute a level of hardship which would weigh in favour of not cancelling his visa.

    Circumstances in which the ground of cancellation arose

15. Immigration policy states that the visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.  Asked whether he had sought workplace law remedies in relation to being asked to work unpaid overtime or work in breach of his visa condition (that he only work on his nominated occupation) Mr Francisco told the Tribunal that he did not do any of this, rather, he took things into his own hands and just resigned.  It is the Tribunal’s view that Mr Francisco’s failure to explore and pursue appropriate workplace law remedies weighs in favour of cancelling his visa. 

    Past and present conduct of the visa holder towards the Department

16. Other than as noted above information before the Tribunal does not otherwise indicate any past or present conduct by Mr Francisco which would weigh in favour of cancelling his visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

17. Mr Francisco has no family members in Australia whose visas would be consequentially cancelled under s.140 of the Act. Accordingly, this factor does not apply to him.

    Whether cancellation would result in mandatory legal consequences, for example, cancellation would result in the visa holder being unlawful and subjected detention and whether indefinite detention is a possible consequence

18. This consideration does not apply to Mr Francisco.

    Whether any international obligations would be breached

19. There is nothing to suggest that any international obligations would be breached as a result of cancellation of Mr Francisco’s Subclass 457 Visa.  Neither he nor his representative many any submissions in this regard.

    Any other relevant matters 

20. The Tribunal finds that Mr Francisco has been nominated successfully by Muswellbrook Motors for the position of Motor Mechanic.  Mr Francisco specifically raised with the Tribunal Muswellbrook Motor’s lodgement of a nomination to afford him the opportunity to remain in Australia on a Subclass 457 visa.  As noted above, the Tribunal was provided with a copy of the nomination approval on 21 October 2016.  The Tribunal considers this weighs strongly in favour of not cancelling Mr Francisco’s Subclass 457 visa. 

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

    DECISION

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

    Katie Malyon

    
    Member

    Annexure A – Extracts from the Migration Act 1958

    
    
    s.116 Power to cancel
    
    

    (1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    (a)  the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

    (aa)  the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

    (b)  its holder has not complied with a condition of the visa; or

    (c)  another person required to comply with a condition of the visa has not complied with that condition; or

    (d)  if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

    (e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or

    (ii)  the health or safety of an individual or individuals; or

    (f)  the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

    (fa)  in the case of a student visa:

    (i)  its holder is not, or is likely not to be, a genuine student; or

    (ii)  its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

    (g)  a prescribed ground for cancelling a visa applies to the holder.
    
    

    (1AA)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity.
    
    

    (1AB)  Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:

    (a)  incorrect information was given, by or on behalf of the person who holds the current visa, to:

    (i)  an officer; or

    (ii)  an authorised system; or

    (iii)  the Minister; or

    (iv)  any other person, or a tribunal, performing a function or purpose under this Act; or

    (v)  any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and

    (b)  the incorrect information was taken into account in, or in connection with, making:

    (i)  a decision that enabled the person to make a valid application for a visa; or

    (ii)  a decision to grant a visa to the person; and

    (c)  the giving of the incorrect information is not covered by Subdivision C.

    This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.
    
    

    (1A)  The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
    
    

    (2)  The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) if there exist prescribed circumstances in which a visa is not to be cancelled.
    
    

    (3)  If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

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    Annexure B – Extracts from the Migration Regulations 1994

    Schedule 8 - Visa Conditions 
    
    

    8107 (1)  If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a)  cease to be employed by the employer in relation to which the visa was granted; or

    (b)  work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    (c)  engage in work for another person or on the holder's own account while undertaking the employment in relation to which the visa was granted.
    
    

    (2)  If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)  cease to undertake the activity in relation to which the visa was granted; or

    (b)  engage in an activity inconsistent with the activity in relation to which the visa was granted; or

    (c)  engage in work for another person or on the holder's own account inconsistent with the activity in relation to which the visa was granted.
    
    

    (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; or

    (C)  if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside 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; and

    (aa)  the holder must commence that work within 90 days after the holder's arrival in Australia; and

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

    (c)  if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder's position is situated--the holder must:

    (i)  hold the licence, registration or membership; and

    (ii)  comply with each condition or requirement to which the licence, registration or membership is subject.
    
    

    (3A)  For subparagraph (3)(a)(ii), the circumstances are that:

    (a)  if the nomination was made before 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    (aa)  if the nomination is made on or after 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

    (b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.
    
    

    (3B)  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(8):

    (a)  the holder must work only in the occupation or position in relation to which the visa was granted; and

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

    
    (4)  If the visa is:

    (a)  a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or

    (b)  a Subclass 402 (Training and Research) visa; or

    (ba)  a Subclass 420 (Temporary Work (Entertainment)) visa;

    the holder must not:

    (c)  cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or

    (d)  engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or

    (e)  engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.

    …

    8501  The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

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