Cuevas (Migration)

[2018] AATA 5708

Cuevas (Migration) [2018] AATA 5708 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leo Lurio Cuevas

CASE NUMBER:  1723499

HOME AFFAIRS REFERENCE(S):           BCC2017/2596913

MEMBER:Nicola Findson

DATE:3 December 2018

PLACE OF DECISION:  Perth

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 03 December 2018 at 7:56pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – occupation of Welder (First Class) – applicant ceased employment with the sponsor over 60 days – downturn in the construction industry – no approved nomination from new employer – financial hardship for family – applicant obtained employment in a nominated position for third  employer – decision under review set aside     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 September 2017 made by a delegate of the Minister for Immigration and Border Protection 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, for the purposes of the review.  It records that the applicant was granted a subclass 457 visa on 22 December 2016, having been sponsored by the Ferguson Corporation Pty Ltd ATF The Ferguson’s Family Trust.  Condition 8107 was attached to the applicant’s visa.  That condition requires the applicant to work in the occupation listed in the approved nomination and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. The Department was informed that the applicant had ceased employment with the sponsor, effective 13 March 2017. 

3. On 5 September 2017, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC). The applicant responded on 7 September 2017 and the delegate took those submissions. The delegate however, cancelled the visa under s.116(1)(b) on the basis that the applicant had ceased employment for a period exceeding 60 days and therefore breached condition 8107.

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

5. The applicant appeared before the Tribunal by telephone on 28 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

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

7. 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

8. 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?

9. 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 8107 attached to the applicant’s visa. This condition requires, among other things, that the visa holder must work only in a position in the business of the standard business sponor or an associated entity of the sponsor (subject to limited exceptions), and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 days.

10. The applicant in this case was sponsored by Ferguson Corporation Pty Ltd ATF The Ferguson’s Family Trust to work in the position of Welder.  He was granted a Subclass 457 visa on 22 December 2016, which was subject to condition 8107.  The applicant’s representative has acknowledged in writing, confirmed by the applicant at hearing, that the applicant’s employment with his sponsor ceased in March 2017 and a period of more than 60 consecutive days passed without the applicant being employed by a standard business sponsor. 

11. The Tribunal is satisfied that the applicant ceased employment with his sponsor in March 2017 and the period during which the applicant ceased employment exceeded 60 consecutive days.  The Tribunal finds that the applicant has not complied with condition 8107(3)(b) of his Subclass 457 visa.

12. 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

13. 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’.

14. In a pre-hearing submission as well as at the hearing, the applicant explained that he left the Philippines and his loved ones – his wife and children - in December 2016 to engage in sponsored employment with the sponsor, as a Welder.  He indicated that soon after he commenced work with the sponsor there was a drastic down turn in the construction industry.  He indicated that the sponsor was badly affected by the down turn and did not have enough work coming in, so the decision was made to make him (as well as others) redundant on 13 March 2017.  He said he immediately started looking for alternate employment and eventually was offered a job by Mei Group Pty Ltd trading as Mammoth Equipment and Exhausts in June 2017. He indicated that from the outset the new company was aware he was the holder of a Subclass 457 visa and agreed to sponsor him.  He was asked to sign paperwork and was led to believe that the company had commenced the process of sponsoring him, by lodging a nomination application in relation to him, with the Department.   He indicated he wrote to the Department in July 2017 to provide his updated employment status and was hopeful that at that time he would be informed about the progress of the nomination application.  He told the Tribunal that it was only when he received notification that his visa had been cancelled in September 2017 that he realised that Mammoth Equipment and Exhausts had not done the right thing by him.

15. The applicant now has a new sponsor, Shermac Group Pty Ltd, an approved business sponsor, located in regional Western Australia.  Shermac Group Ptd Ltd lodged a nomination application of which the applicant is the subject with the Department and obtained the nomination approval on 18 September 2018. The applicant indicated to the Tribunal that he successfully applied for work rights on the Bridging Visa E that was issued to him following the delegate’s decision to cancel his visa and commenced working for Shermac Group Ptd Ltd in December 2017. 

16. In assessing the evidence, the Tribunal notes that the applicant presented as a persuasive, reliable witness.  It can be satisfied it can rely on his oral evidence to make many of its findings.

17. With respect to the applicant’s purpose of travel and stay in Australia, the Tribunal is satisfied the applicant wishes to work in employment as a Welder (First Class).  He left the Philippines in order to come to Australia to work in the industry and to provide his wife and four children with financial support and a better future.  He would like to continue working as a welder, his primary purpose for travelling to Australia in 2016, as he has the skills and experience.  The Tribunal is of the view that this evidence weighs in favour of not cancelling the visa.

18. With respect to his compliance with visa conditions, the Tribunal finds that the applicant may not have complied with condition 8107 when he ceased working for the sponsor and did not return within 60 days.  However, it accepts he was forced to leave that employment because the sponsor did not have the work to retain him.  The Tribunal also accepts that the applicant did everything he could to secure alternative employment and to ensure he complied with his visa conditions.  The Tribunal is satisfied that there is no other evidence to indicate that the applicant has not complied with other visa conditions.  The Tribunal gives this factor some weight in not cancelling the visa.

19. The Tribunal is satisfied that the applicant will suffer financial hardship if the visa is cancelled.  At significant expense, he relocated to Australia from the Philippines.  If he is unable to work in skilled employment in Australia this will cause him financial hardship.  Also, his family in the Philippines rely on his financial support and the Tribunal accepts that the disruption of a visa cancellation will cause them distress and financial hardship.  The Tribunal accepts that the situation in which the applicant finds himself has adversely impacted upon his whole family.  The applicant borrowed a significant sum of money to come to Australia in the first place.  He has also incurred significant costs in order to remain in Australia and to pursue this matter, particularly during the period he did not have work rights. In the Tribunal’s view this evidence weighs in favour of not cancelling the visa.

20. Regarding the circumstances in which the ground for cancellation arose, the Tribunal is satisfied the applicant’s cancellation came about because of circumstances beyond his control.  It gives this factor significant weight in favour of not cancelling the visa.

21. Regarding the applicant’s behaviour towards the Department, the Tribunal notes and accepts that the applicant contacted the Department to put it on notice that he had been forced to seek work with an alternate sponsoring employer.  There is no evidence to suggest the applicant has been anything but honest with the Department. The Tribunal gives this factor some weight in favour of not cancelling the visa.

22. The Tribunal is now satisfied that the applicant has a new sponsor, Shermac Group Pty Ltd, an approved standard business sponsor.  Shermac Group Pty Ltd was granted nomination approval in September 2018 of which the applicant is the subject.  The Tribunal is satisfied, on the evidence before it, that the applicant is a valued employee of this new sponsor.  The Tribunal gives this factor significant weight in favour of not cancelling the visa.

23. Overall, balancing all of these factors, the Tribunal places considerable weight on the circumstances under which the ground for cancellation arose as it is of the view these circumstances were beyond the applicant’s control. It also gives significant weight to the fact that the applicant has secured a new sponsor, Shermac Group Pty Ltd, a standard business sponsor, and is the subject of an approved nomination to be employed in skilled employment as a Welder (First Class).  It gives weight to the consequences of the cancellation of his visa.  It accepts the applicant incurred significant expense to move to Australia to enable him to work in skilled employment and accepts that the stress of the events of the last 12 months has caused the applicant and his family distress.  It accepts the applicant wishes to remain in Australia to work in skilled employment which is in the spirit of the Subclass 457 visa program. The Tribunal is of the view the evidence supports a decision to not cancel the visa.   

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

    DECISION

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

    Nicola Findson
    Member