Badiola (Migration)

[2021] AATA 2333

Badiola (Migration) [2021] AATA 2333 (1 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alejandro Palogan Badiola

CASE NUMBER:  2012460

HOME AFFAIRS REFERENCE(S):          BCC2019/5780423

MEMBER:Amanda Mendes Da Costa

DATE:1 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 1 April 2021 at 2.39pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– ceased employment for a period exceeding 60 consecutive days – applicant has gained further employment with another sponsor – decision under review set aside

LEGISLATION

Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 July 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage 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 8607(5) attached to 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 28 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Paul Joyce. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing.

5. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing and that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing.

6. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The documents provided by the applicant to the Tribunal for the purpose of the review, include the following:

   ·statutory declaration by applicant, declared 7 August 2020;

   ·written submissions dated 30 August 2020 and 8 January 2020;

   ·sponsorship approval notification, Luss Precision and General Engineering Pty Ltd (Luss Engineering);

   ·termination letter from Mindrill Parafield Properties Pty Ltd, dated 16  October 2019;

   ·certificate of employment, Kong Hwa Precision Tool Co Ltd, dated 22 January 2019;

   ·Bridging E visa for the applicant, granted 11 August 2020;

   ·bundle of emails between Luss Engineering and the Department;

   ·bundle of receipts for money transfers by the applicant to Anna Cecilia Badiola;

   ·Luss Engineering advertisement published in Seek.com;

   ·Australian Taxation Office, assessment notice for the applicant for the year ending 30 June 2020;

   ·delegate’s decision dated 28 July 2020;

   ·South AsiaLink Finance Corporation Amortization Schedule for the applicant, dated 19 July 2019;

   ·applicant’s subclass 482 visa, granted 4 June 2019;

   ·statement of Paul Joyce dated 31 July 2020;

   ·VETASSESS assessment (certificate III in Engineering – Mechanical Trade) for applicant, dated 13 May 2019;

   ·IMMI Account printout for Luss Engineering; and

   ·correspondence between applicant’s migration agent and the Department regarding Freedom of Information request dated 7 September 2020 and 4 January 2021.

8. 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

9. 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?

10. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8607(5) attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

11. In this instance, the applicant was granted a Subclass 482-Temporary Skill Shortage visa (on 4 June 2019) on the basis that the holder met the requirement of subclause 482.212 which required that if the visa holder ceases employment, the period during which the holder ceases employment, the period during which the holder cease employment must not exceed 60 consecutive days.  The Tribunal notes that the expiry date of the visa is 4 June 2023.

12. The applicant obtained employment with his sponsor, Parafield Properties Pty Ltd trading as Mindrill Mining Services (Mindrill Mining Services) and commenced his employment in Mackay Queensland on 25 July 2019  The sponsor subsequently advised the Department that the applicant ceased employment with it on 16 October 2019.  On 13 May 2020, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of the visa, on the grounds that he had failed to comply with condition 8607(5) attached to his visa.

13. The applicant provided the Department with a written response to the NOICC (dated 16 May 2020), which included the following:

    ·He was the father of three children, aged 11, 7 and 11 months.

    ·Before he came to Australia he worked as a machine operator for a company South Korea for 10 years.

    ·Due to immigration laws in South Korea, he was not able to take his wife and children to live with him there.  Whilst living in South Korea, he visited them for two weeks per year at Christmas when he returned to the Philippines for a holiday.

    ·After 10 years, the applicant’s work contract ended and the applicant was not permitted to become a South Korean citizen, due to the country’s immigration laws.

    ·During his 10 years in South Korea, the applicant provided financial assistance of his siblings who he supported through their university studies.

    ·It took a great deal of effort and money to enable the applicant for a ‘working’ visa.  The cost of the services of a manpower agency in both the Philippines and Australia to assist him in obtaining this visa was approximately AUS20,000.  Given he did not have that money in savings, he borrowed the money from a lending company in the Philippines.  The applicant will be required to repay the debt on a monthly basis with a 1.29% interest rate.

    ·In order to meet his monthly repayments, the applicant will need to earn more than $2,150 per month in order to repay his debt and allow for food, rent and other living expenses.

    ·He needs to continue working in Australia to pay his debt and support his family.

    ·The applicant arrived in Australia on 25 July 2019 and immediately commenced working for his sponsor (Mindrill Mining Services) in Mackay, Queensland.  The working environment was different from that in South Korea as the machinery was different from that in South Korea and it took time to study the programming and operation of the equipment.

    ·The applicant was concerned that the lead hand in the business had an issue with the hourly rate payable to him, as compared to the other workers who were more experienced but paid at a lower hourly rate than the applicant.

    ·The workstation assigned to the applicant didn’t have much work and he had insufficient time to study and operate the machines.  The lead hand also used to take the applicant from his workstation and assigned him to clean machinery in the back shed.

    ·He was required to operate two lathe machines which were dangerous and could cause him serious injury if he was not properly trained.

    ·The applicant experienced verbal abuse from his co-workers as they were pushing him to learn about his work as a machine operator.

    ·He became depressed and lost his confidence in his work.  He felt bullied and left alone and became depressed and lost his confidence in his abilities as a machine operator.

    ·On 16 October 2019 the sponsor terminated the applicant’s employment on the basis that he did not meet their required standards.  The sponsor also threatened to have him sent back to the Philippines.  After the termination of his employment, the applicant moved to Melbourne after his brother-in-law offered to assist him by providing him with accommodation and other support.  On arriving in Melbourne, the applicant spent two to three weeks looking for work and was successful in obtaining employment with his current employer, Luss Engineering.  This business is located in Williamstown.

    ·Although the applicant’s new employer was not experienced in sponsoring employees, it was keen to assist him providing him with assistance in obtaining a visa.  Between October and December 2019, the applicant and his employer contacted the Department in order to obtain information about the process of applying for a Subclass 482 visa.  However, before his employer could obtain a nomination approval for the applicant, 60 days had elapsed since the cancellation of his visa.

    ·The applicant never intended to breach a condition of his visa and was concerned about the effect of the cancellation on his ability to work in Australia and support his family in the Philippines.

    ·The applicant wants to bring his wife and children to live in Australia and his son wishes to serve in the Australian Defence Force.

14. The applicant further provided the Tribunal with a statutory declaration, dated 7 August 2020, the contents of which are broadly consistent with the information contained in his written response to the NOICC.  The Tribunal accepts the information contained in the applicant’s NOICC response and statutory declaration.

15. The applicant also provided the Department with a letter dated 16 October 2019 and addressed to him from Todd Haines, Manager of Mindrill Mining Services.  This letter included the following observations:

    Your work performance is not to the standard that Mindrill requires.

    The main issue is with you retaining information that you have been trained in from one day to the next.  You have received one on one training with very experienced machinists on the M4 and M5 lathes since 29 July, a period of almost 3 months.  Unfortunately, you have not retained this training and your trainers are not confident that you can work unsupervised in a competent manner.

    This raises two significant issues - firstly the safety of yourself and people around you and secondly the potential for equipment damage.  A period of almost 3 months of one on one training is more than sufficient to master the operations you have been trained in.

    Your employment with Mindrill will cease on 16 October 2019 …

16. In his decision, the delegate noted that in order for the applicant to be able to lawfully work for another sponsor in Australia while he holds the visa, a prospective sponsor would need to lodge a new nomination application, approved by the Department.  Although a prospective sponsor lodged a new nomination on 3 June 2020 for the applicant, that nomination was refused on 10 June 2020 and there was no record on departmental systems to indicate the visa holder had a further new Temporary Skill Shortage nomination application approved in relation to any other sponsor.

    Applicant’s oral evidence - hearing on 28 January 2021

17. The applicant is a national of the Philippines and is 39 years of age.  He has been married since 2001 and has three dependent children.  The applicant’s family live in the Philippines in a home owned by the applicant and his wife.  They are dependent on the applicant for their financial support. The Tribunal notes that this evidence is supported by the remittance receipts provided by the applicant to the Tribunal.

18. The applicant was employed as a machinist in South Korea for 11 years.  The reason for leaving South Korea was due to the immigration laws of that country which prohibit foreign workers for remaining more than 11 years.  He came to Australia in 2019 to take up a position as a machinist with his sponsor Mindrill Mining Services in Mackay, Queensland.

19. Although his sponsor provided training to its employees, if those employees didn’t learn quickly enough, the company was not tolerant of their need for further assistance. The applicant found this approach difficult to cope with given that the machinery which he was operating were dangerous and potentially life threatening.  The applicant also experienced resentment from the lead hand of the business due to the fact that the applicant was paid a higher hourly rate than his fellow employees.

20. When his employment was terminated on 16 October 2019 the sponsor threatened to buy him an airline ticket and send him back to the Philippines.  Given that he was alone and had no financial support in Australia, the applicant accepted his brother-in-law’s invitation to live with him and his family in Melbourne.  The applicant moved to Melbourne in October 2019 and has continued to live with his family since then.  Apart from making a contribution to the purchase of groceries, the applicant does not make any other financial contribution to his brother-in-law. 

21. The applicant commenced his current employment as a ‘CNC’ machinist with Luss Engineering in late October 2019.  He likes his job and would prefer to continue living and working in Australia.  If the applicant’s visa is cancelled, and he returns to the Philippines, he will be unemployed and without the financial ability to support his family.

    Oral evidence of Paul Joyce

22. Mr Joyce is the owner and managing director of Luss Engineering, a small to medium size business established in 1966, which provides engineering services, including design, manufacturing, repair and maintenance.  It also specialises in CNC machining which is a form of precision machining which involves computer design and cutting of metal components.  The business which is located in the western suburbs of Melbourne currently employs nine full time employees and several part time ones. 

23. Mr Joyce told the Tribunal that it was difficult for the business to find suitably qualified  employees who were prepared to work in the Western suburbs, and this was exacerbated by the lack of training facilities in CNC machining in that part of Melbourne.  The business had unsuccessfully advertised on websites including Seek.com, Blue Sky and a free government site from 2018 until the applicant responded to the advertisement on Seek.com in October 2019. 

24. Mr Joyce described the applicant as a well-qualified and experienced CNC machinist who was an honest, reliable and respectful employee.  He had been employed by the business on a full-time basis since October 2019.  Mr Joyce said that the applicant was popular with his fellow employees and customers of the business, several of whom who were prepared to provide references for the applicant to the Tribunal.  Although the business had been adversely affected by the downturn in work due to government restrictions imposed as a result of the Covid-19 pandemic.

25. The Tribunal questioned Mr Joyce about the material provided to it by the applicant which included departmental records regarding Luss Engineering’s IMMI account.  It shows that the company was approved as a standard business sponsor (SBS) for the period 16 December 2019 to 16 December 2024 and that a nomination application was lodged by the company on 3 June 2020.  Mr Joyce explained that the company had not been involved in migration sponsorship before employing the applicant and had made the application for SBS approval in order to sponsor the applicant in respect of his subclass 482 visa.

26. Mr Joyce told the Tribunal that he had lodged the nomination application with the Department.  Due to his lack of experience with migration matters, he had found the process difficult and had required the assistance of departmental staff on numerous occasions to lodge the required documentation.  After lodging the nomination application, the Department advised him that he had not lodged the required material relating to market labour testing.  He followed the Departmental advice to cancel the application, readvertise the nominated position and lodge a further application.  Unfortunately, he has experienced difficulty in lodging another nomination application for a position for the applicant.  This was due to the Department’s online system refusing to accept the applicant’s Bridging E visa number.

27. Mr Joyce said that despite the difficulties experienced by the company in nominating a position for the applicant, it had continued to employ him and wished to continue employing him on an ongoing basis.

    Statement of Paul Joyce

28. In his statement Mr Joyce explains that Luss Engineering has made a nomination application to the Department for the position of Machinist for the applicant.  The company has been in need of a ‘CNC’ machinist for several years and wishes to employ the applicant in that position. 

29. Mr Joyce further states that the company had experienced difficulties in lodging the nomination application because it did not have the funds to pay the required nomination fee.  He had even requested the Department to provide bank details, to enable him to transfer the fee.  Although he had been trying to lodge a successful nomination application for several months without success, Mr Joyce continued to be committed to nominating the applicant and employing him in the business. 

30. Mr Joyce further explains that Australia has a shortage in skilled machinists as educational programs in this country have moved away engineering trade-based skills.  He recommends the applicant as an honest, reliable and hardworking person.

    Documentation received following the hearing

31. Following the hearing the applicant provided the Tribunal with a Nomination Approval dated 19 March 2021, advising that the nomination application lodged by Luss Engineering had been approved as the applicant’s sponsor for the position of Metal Machinist (First Class) ANZSCO Code 323214.  This approval is for the Temporary Skill Shortage (subclass 482) visa program.

    Finding re grounds for cancellation

32. The Tribunal is satisfied that the applicant was employed by Mindrill Mining Services from July 2019 to 16 October 2019 as a Metal Machinist. The position was located in Mackay Queensland.  The Tribunal accepts the applicant’s evidence that when he ceased employment with his sponsor, he moved to Melbourne to live with relatives and commenced employment with his current employer, Luss Engineering.  This company is a standard business sponsor, which on 19 March 2021 obtained nomination approval for the applicant for the position of Metal Machinist.

33. Since the period in which in which the applicant was not employed with the sponsor (Mindrill Mining Services) or any other standard business sponsor exceeded 60 consecutive days, the Tribunal is satisfied that the applicant has not complied with subclause ((5) to Condition 8607 attached to his visa.

1. 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 visa should be cancelled.

   Consideration of discretion

2. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   Purpose of the applicant’s travel and stay in Australia

3. The applicant is a national of the Philippines.  He arrived in Australia in July 2019 in order to work as a metal machinist after being granted a Subclass 482-Temporary Skill Shortage visa on  4 June 2019 for the purpose of working in Australia for his sponsor Mindrill Mining Services.  This employment ceased on 16 October 2019.

4. The applicant has subsequently gained employment with Luss Engineering, a standard business sponsor, which obtained nomination approval for the applicant on 19 March 2021 for the occupation of Metal Machinist (First Class).

5. The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.  The subclass 482 visa is a temporary visa od limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal finds that although the applicant’s employment with Mindrill Mining Services has ceased, this purpose continues to exist as the applicant has commenced employment with another sponsor (Luss Engineering) which has an approved nomination for the applicant.

6. The Tribunal gives significant weight to this consideration against cancellation of the visa.

   Extent of the applicant’s compliance with visa conditions

7. There are no known instances of non-compliance with visa conditions, apart from the applicant’s non-compliance with condition 8607(5).

8. The Tribunal gives some weight to this consideration against cancellation of the visa.

   Degree of hardship that may be caused

9. The Tribunal is satisfied that if the applicant’s visa is cancelled and he returns to the Philippines,  he will be unemployed and required to seek employment to support his wife and three dependent children.  The Tribunal accepts that the loss of income (even if initially) will have an adverse financial impact on him and his family.

10. The Tribunal gives this consideration some weight against cancellation of the visa.

    Circumstances in which the ground of cancellation arose

11. The Tribunal accepts that prior to the cancellation of the applicant’s visa, he was employed as a Machinist by his sponsor Mindrill Mining Services, which was a standard business sponsor with an approved nomination for the applicant. 

12. The Tribunal finds that the circumstances in which the ground for cancellation arose were due to the applicant’s employment being terminated by his sponsor on 16 October 2019. Although the sponsor advised the applicant (by letter dated 16 October 2019)  that his work performance was not to the standard expected by Mindrill Mining Services, the Tribunal notes that the applicant has gained further employment with another sponsor (Luss Engineering).  This employer finds the applicant to be an honest, hardworking and reliable employee and has been prepared to sponsor the applicant for a full-time position with the company as a Metal Machinist.

13. The Tribunal gives some weight to this consideration in favour of cancellation of the visa.

    Past and present behaviour of the applicant towards the Department

14. The Tribunal accepts that the applicant’s behaviour towards the Department and its staff has been cooperative and that he replied to the NOICC in a timely manner.

15. The Tribunal gives some weight to this consideration against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

16. Although the applicant is a married man with three dependent children his family are currently living in the Philippines and are not visa holders.  The Tribunal finds that the cancellation of his visa would not result in the consequential cancellation of any dependent visa holders.

17. The Tribunal does not give this consideration any weight, either in favour of or against cancellation of the visa.

    Whether there are mandatory legal consequences, such as whether cancellation of the visa would result in the visa holder being unlawful and liable to detention or whether indefinite detention is possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

18. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained.  There is no suggestion that he will be detained indefinitely because as a United Kingdom citizen he will be able to return to the United Kingdom.  The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications.

19. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.

20. The Tribunal gives this consideration significant weight against cancellation of the visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

21. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations or the best interests of a child would be breached as a result of the cancellation.

22. Accordingly, the Tribunal does not give this consideration any weight, either in favour of or against cancellation of the visa.

    If the visa is a permanent one, whether the visa holder has strong family, business or other ties in Australia

23. As the applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration, either in favour of or against cancellation of the visa.

    Any other relevant matters

24. The Tribunal accepts that the applicant has gained employment with another sponsor, (Luss Engineering) which is a standard business sponsor and has obtained approval of a nomination for the applicant for the occupation of Metal Machinist (First Class) ANZSCO 323214 for the Temporary Skill Shortage (subclass 482) visa program.

25. The Tribunal also takes into consideration that (if not cancelled) the period of the applicant’s visa is for the period 4 June 2019 to 4 June 2023.

26. The Tribunal gives significant weight to these considerations against cancellation of the visa.

    Conclusion

27. Considering the circumstances as a whole (and particularly the applicant’s current employment with Luss Engineering and the nomination approval for the applicant), the Tribunal concludes that the visa should not be cancelled

    DECISION

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Amanda Mendes Da Costa
    Member