De Chavez (Migration)

[2020] AATA 4384

De Chavez (Migration) [2020] AATA 4384 (20 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Paul De Chavez

CASE NUMBER:  2002808

HOME AFFAIRS REFERENCE(S):          BCC2019/5116323

MEMBER:Michelle East

DATE:20 October 2020

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 20 October 2020 at 4:24pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – labour agreement stream – employment ceased for more than 60 days – engaged by labour hire company but not contracted with clients – stayed onshore for better chance of obtaining contracts – personal and financial circumstances in home country – new nomination application in same occupation by another sponsor – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b), (3)
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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 8107(3)(b). 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 20 October 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

4. The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of the matter and the individual circumstances of the applicant.  The Tribunal also had regard to its 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 conducted this way.

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 set aside.

   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?

   s.116(1)(b) - non-compliance with conditions

8. 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 that if the applicant ceases employment, the period during which the holder ceases employment cannot exceed 60 days.

9. On the basis of the information before it from the Department’s records and as detailed in the delegate’s decision, the Tribunal finds that the applicant was granted a subclass 457 visa on 6 February 2017 to occupy a position of ‘Lagger’ (ANZSCO 821913).  The applicant was employed under the Labour Agreement Stream with his sponsor, Cape Australia Holdings Pty Ltd.

10. The Tribunal finds that the applicant’s occupation of ‘Lagger’ is not a specified occupation for the purposes of paragraph 8107(3A).

11. According to the delegate’s decision, the Department received notification from the sponsor that the applicant had ceased working with them from 29 June 2018.

12. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 9 January 2020 and the applicant provided a response on 22 January 2020.

13. Evidence provided by the applicant indicates he was engaged by Cape Australia Holdings Pty Ltd pursuant to a labour agreement and was engaged on the following projects:

    -Wheatstone Project from 28.2.17 – 6.7.17

    -BHP Olympic Dam from 24.9.17 – 22.12.17 and

    -Wheatstone Project from 23.3.18 – 6.6.18

14. The applicant also provided several payslips which demonstrated his final pay from Cape Australia was in June 2018.

15. The applicant disputes that he has breached a condition of his visa because he was in constant contact with Cape Australia Holdings about further contracts which did not eventuate.  In his mind he was still ‘employed’ by Cape Australia Holdings even though he was not actually working on a project.

16. Whilst the Tribunal has some sympathy for this argument, being engaged by a labour hire company does not equate to being employed by them.  A separate contract with the labour hire company is necessary to be engaged on a specific contract with a third-party client.  As noted above, the applicant was engaged on three contracts with Cape Australia Holdings for specific periods of time.

17. As conceded by the applicant at the hearing, he did not obtain further employment with his sponsor after June 2018.

18. The Tribunal therefore finds that during the period the applicant held his subclass 457 visa he ceased employment for more than 60 consecutive days and therefore breached condition 8107(3)(b) of his visa.

19. 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

20. 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’.

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

21. The purpose of the applicant’s travel to and stay in Australia was to undertake work in a skilled occupation which could not be filled by an Australian employee.  The 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that the applicant would be able to remain in Australia on a permanent basis.

22. The applicant has provided evidence of a new nomination application for a subclass 482 visa with Kingsthorpe Pty Ltd.  This was received by the Department on 20 August 2020.

23. The Tribunal accepts that the applicant made ongoing efforts to obtain new contracts with his sponsor and may not have understood that without a new contract he was not technically employed.  The circumstances were somewhat out of his control and he may not have understood the technicalities surrounding his engagement with Cape Australia Holdings. 

24. The applicant was clearly complying with the purpose of his travel to and stay in Australia up until the completion of his latest contract in June 2018.  The Tribunal is satisfied that the applicant has, to the extent possible, complied with the purpose of his travel to and stay in Australia.

25. The Tribunal finds this weighs in favour of not exercising its discretion to cancel the visa.

26. The applicant gave evidence of the potential hardship he may face on returning to the Philippines.  Whilst employment in Australia would probably be the most beneficial outcome for the applicant and his family, the Tribunal is not prepared to accept this amounts to a compelling need to remain in Australia.

    The extent of compliance with visa conditions

27. There is no evidence suggesting the applicant has not been compliant with other visa conditions since arriving in Australia.

28. The Tribunal finds this weighs in favour of not exercising its discretion to cancel the visa.

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

29. In his response to the NOICC, the applicant said that he ‘has left his family, properties and career in Philippines to come to Australia for a better future, financial gain and security’.  And further, ‘The visa holder will suffer great emotional stress and a huge financial loss if his visa is cancelled now and he has to leave Australia’.  The applicant further discussed his previous employment in the Philippines, that his wife and child are dependent on him and are living in the Philippines as are his elderly parents.

30. In a later submission to the Tribunal dated 11 February 2020 the applicant’s representative stated:

    While living in Philippines, he was informed by Barangay (the suburban administrative unit) officials in his vicinity that his name is included in a drug-syndicated-wanted list in the Philippines.  It was also rumoured that his new two storey house and car were bought from his drug dealing activities.  Half of the properties were bought from his FIFO work earnings.  His family was receiving death threats and there were frequently suspicious individuals roaming around his family property.  His family are living in fear and tremendous stress daily.  He cannot live in Philippines for fear that he may be killed as many people are being killed daily on suspicion as drug dealers.

31. The applicant also stated that his family home is near a ‘permanent danger zone’ close to the site of a recently erupted volcano.

32. The Tribunal explored the allegations about being on the ‘wanted list’ at the hearing.  The applicant said the issue had been resolved and it is accepted within his community that he earnt his money doing FIFO work.

33. The applicant gave evidence of his need to financially support his wife and son as well as his elderly parents. He said that since the outbreak of the pandemic, things had been even more difficult and he was concerned about his employment prospects if he had to return.

34. The Tribunal accepts that there would be significant hardship to the applicant and his family should the visa be cancelled and finds this weighs in favour of not exercising its discretion to cancel the visa.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

35. The Tribunal accepts the evidence that the applicant had no control over the circumstances in which he was not offered further contracts by his sponsor.

36. The Tribunal is satisfied that the circumstances in which the ground of cancellation arose were beyond the applicant’s control and finds this weighs in favour of the Tribunal not exercising its discretion to cancel the visa.

    Past and present behaviour of the visa holder towards the department

37. There is nothing to indicate that the applicant has been involved in any adverse behaviour towards the department and finds this weighs in favour of the Tribunal not exercising its discretion to cancel the visa.

    Whether there would be consequential cancellations under s.140

38. Departmental records indicate there are no consequential cancellations under s.140 of the Act.

39. The Tribunal finds this factor neutral in considering its discretion whether to cancel the visa.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

40. There is no evidence before the Tribunal that cancellation would result in the applicant being subject to detention or that indefinite detention is a possible consequence of cancellation.  The Tribunal considers this factor neutral in considering its discretion.

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

41. The applicant had raised possible threat of harm should he be forced to return to the Philippines however gave evidence at the hearing that that was no longer of concern to him.  There is no evidence before the Tribunal to suggest that any international obligations would be breached as a result of the cancellation.  The Tribunal considers this factor neutral in the exercise of its discretion.

    Any other relevant matters

42. The Tribunal accepts the applicant’s evidence that he came to Australia in good faith pursuant to a labour hire agreement.  In his mind he was complying with the terms of his visa even though he wasn’t actually working past July 2018.  Despite this however, the Tribunal must conclude that there had been a breach of condition 8107(3)(b) of his visa because he was not technically employed at that time.  He also gave evidence that when he returned to Australia after July 2018 he stayed in Perth because he felt that gave him a better chance of obtaining contracts when they were available rather than being offshore.  He said priority was given to workers who were immediately available.  The Tribunal accepts this evidence.  He also said that when he was leaving the Philippines after July 2018 he had an ‘OEC’ – ‘Overseas Employment Contract’ without which he would not have been able to return to Australia.  He considered himself lawful because of this document.

43. The Tribunal considers these factors weigh in favour of not exercising its discretion to cancel the visa.

    Conclusion

44. The Tribunal has had careful regard to all the documentary and oral evidence provided to it.

45. The Tribunal is also mindful that the applicant has continued to work in the same field as the original nomination and has obtained further employment in the same role.

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

    DECISION

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

    Michelle East
    Member