Declan (Migration)

[2019] AATA 606

Declan (Migration) [2019] AATA 606 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lito Sescon Declan

CASE NUMBER:  1830482

HOME AFFAIRS REFERENCE(S):           BCC2018/3974513

MEMBER:Jennifer Cripps Watts

DATE:26 February 2019

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 26 February 2019 at 12:45pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – Condition 8107 – commenced employment with sponsor – no verifiable evidence – consideration of discretion – continued to work in nominated occupation – approved sponsor willing to nominate applicant subject to Tribunal’s decision – financial and emotional hardship – credible witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 October 2018 made by a delegate of the Minister for Home Affairs (the delegate) 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 had not complied with a condition of the visa. The visa was granted under the condition that the applicant meet condition 8107 of Schedule 8 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant had had complied with condition 8107(3)(aa)(ii) which requires he commence employment with the sponsor, Paul W Wheeler and Michelle C Donegan trading as GS Mobile (GS Mobile), within 90 days of the grant of the visa.

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

4. The applicant’s visa was cancelled on 16 October 2018 and he applied for review on 17 October 2018, within time, providing a copy of the delegate’s decision with his application. 

5. On 18 December 2018, the Tribunal sent an invitation to the applicant to attend a scheduled hearing on 14 January 2019.  On 11 January 2019, submissions were received from the applicant’s migration agent, Rachel Praxl, attaching a letter from Marble Group indicating that they may be able to help the applicant find a sponsor.  In these circumstances, the Tribunal considered it appropriate to postpone the hearing for about six weeks and an invitation to the rescheduled hearing, on 25 February 2019, was sent to the applicant.  Ms Praxl gave an undertaking to provide additional information ‘as it becomes available’.  Written submissions were received on 22 February 2019, attaching a letter from Entity Solutions that indicated they would be willing to nominate the applicant for sponsorship if he gets a favourable outcome from the Tribunal.

6. The applicant appeared before the Tribunal on 25 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter, Shenly Declan, who is an Australian permanent resident.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

7. The applicant was represented in relation to the review by his registered migration agent, who made oral submissions at the end of the hearing.

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.

10. Condition 8107 applies to all Subclass 457 visa holders, except for the pre-24 November 2012 further stay Independent Executives.  The exception does not apply in this applicant’s case.

11. The Standard Business Sponsor who nominated the applicant, GS Mobile, had the nomination for the visa holder, the applicant in this matter, approved on 6 March 2018.  GS Mobile notified the Department of Home Affairs, on 7 June 2018, 90 days after the nomination was approved, that the applicant had not commenced employment with them.  It is a condition of the Subclass 457 visa that was held by the applicant that he commence employment with the most recently approved standard business sponsor, in this case GS Mobile, within 90 days of the visa grant. 

12. After the Department received the notification from GS Mobile in June 2018, on 14 September 2018 a Notice of Intention to Consider Cancellation of his visa (NOICC) was sent to the applicant.  The applicant responded within an extended timeframe granted to him.  He disputed the ground for cancellation because he says he commenced two weeks of training with GS Mobile on 12 March 2018, but they did not give him any payslips and they paid him in cash for the two weeks’ work.  He said he left their employ of his own volition because of unsafe work practices.  The applicant has provided no verifiable evidence that he commenced employment with GS Mobile.  The delegate was not satisfied that he had commenced employment with the sponsor, GS Mobile, within 90 days of the grant of the visa and the applicant was therefore found to have been non-compliant with condition 8107(3)(aa)(ii).  Discretionary matters were considered and the visa was cancelled.

    Does the ground for cancellation exist?

13. 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(3)(aa)(ii) attached to the applicant’s visa. As discussed above, the applicant appeared not to have complied with the condition and a NOICC was sent. The ground for the cancellation was disputed by the applicant. It is acknowledged that the applicant claimed, and continues to claim, that he worked for the GS Mobile for two weeks and claims this means that he did not breach condition 8107(3)(aa)(ii). Notwithstanding that the Tribunal considers the applicant to have been a credible witness, there is simply no verifiable evidence that satisfies the Tribunal that he commenced employment with the sponsor, GS Mobile, within 90 days after the visa holder’s visa was granted.

14. 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

15. 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 visa holder’s travel and stay in Australia

16. The applicant is a 55 year old citizen of the Philippines.  On 10 October 2012, he was granted a Subclass 457 visa that ceased on 10 October 2016.  He first arrived onshore on 3 April 2013.  On 12 October 2016, the applicant was granted a second Subclass 457 visa to work in the occupation of Motor Mechanic.  In his statutory declaration, sworn on 27 September 2018, the applicant includes the following information:

    a.He worked for Standard Business Sponsor Brierty Limited for approximately four years and 10 months, ceasing on 31 January 2018;

    b.After working for Brierty Limited, he accepted a position of Mechanic at GS Mobile and commenced working with them on 12 March 2018

    c.He did training for GS Mobile and was paid $32.50 an hour and says he was not provided with payslips;

    d.He resigned from GS Mobile on 27 March 2018 because of unsafe work practices;

    e.In April 2018 he commenced work with Mudgee Dolomite and Lime Pty Ltd as a Heavy Diesel Fitter on the understanding that they were a standard business sponsor and they would take over sponsorship of him.  he worked there until September 2018 when his visa was cancelled.

17. The purpose of the applicant’s travel and stay in Australia was, as the holder of a Subclass 457 visa, to work for an approved sponsor in a skilled occupation for which he was specifically nominated.  The Tribunal has found that the applicant did not commence employment with his sponsor, GS Mobile, because there is no verifiable evidence.  While the applicant has not worked in the nominated occupation as the holder of a Subclass 457 visa since it was cancelled, he has continued to work in the occupation that he was nominated for throughout his time working in Australia.  

    Whether the visa holder has a compelling need to travel to or remain in Australia

18. The Tribunal has considered the applicant’s individual circumstances.  He has one daughter and two grandchildren who live in Australia.  He lives with them in Geraldton.  The balance of his family, including his wife and other children (the youngest is 11), lives in the Philippines.  He supports his family financially.  The Tribunal considers compelling to be a high threshold.  The Tribunal accepts that the applicant has a need to continue to remain in Australia and work to support his family, but is not satisfied that it is a compelling need. 

    Extent of compliance with visa conditions

19. Other than the non-compliance with condition 8107(3)(aa)(ii), there is no information before the Tribunal that indicates the applicant to have been otherwise non-compliant.  When his visa was cancelled, the Tribunal accepts that he ceased work until such time as he regained work rights. 

    Degree of hardship that may be caused, including financial, psychological, emotional

20. The applicant provided documentary evidence and gave oral evidence at the hearing that he has debts in Australia of about $29,000, comprised of a $20,000 loan and $9,000 owing on a credit card.  He said that he also has a debt in the Philippines of about PHP500,000, or around AUD25,000.  This is because his son passed away in around May 2018 and the applicant incurred significant hospital and funeral costs and had to borrow money to pay these bills.  The Tribunal has documentary evidence of the applicant’s financial situation in Australia and accepts on his oral evidence that the applicant also has significant debts in the Philippines.  If he was to cease employment in Australia, he would have debts and no longer have the means to pay them or be able to support his family.

21. The resulting financial, psychological and emotional hardship that the applicant would suffer is considered to be significant, in his circumstances.

    Circumstances in which the ground of cancellation arose

22. The ground of cancellation arose when the applicant had not commenced work with the Standard Business Sponsor, within 90 days of the Standard Business Sponsor’s nomination being approved, on 6 March 2018.

23. The applicant claims that he did commence work with GS Mobile, but provided no verifiable evidence to this effect to the delegate or the Tribunal.  He says after two weeks’ training, he resigned and subsequently found another company, Mudgee Dolomite and Lime Pty Ltd, who said they were willing to sponsor him. 

    Is cancellation being considered because of a relationship breakdown with family violence

24. There is no evidence before the Tribunal and no claim made by the applicant that the cancellation was because of a relationship breakdown.  This is not therefore a relevant consideration.

    Were the circumstances in which the ground for cancellation arose beyond the applicant’s control?

25. There is evidence before the Tribunal that the applicant commenced employment with Mudgee Dolomite and Lime Pty Ltd, on 26 April 2018.  In a letter provided by the company, they say that they were granted Standard Business Sponsorship in 2010 and that, at the time the applicant started working they thought they were still a Standard Business Sponsor.  They later realised, but not until the applicant’s visa was cancelled, that their Standard Business Sponsorship had expired five years after it was granted, in 2015.  The applicant and witness both gave evidence that the owner of the business, Bob, employed a number of casual staff and that he realised too late that the Standard Business Sponsorship ceased in 2015.  He thought the staff he had were taking care of the applicant’s visa issues.  They were all shocked when the visa was cancelled.  The evidence is largely consistent between the applicant, his daughter and Mudgee Dolomite and Lime Pty Ltd.  The owner of Mudgee Dolomite and Lime Pty Ltd admits that it was his fault and holds a strong view that there were circumstances beyond the applicant’s control relating to his non-compliance, referring to the mistaken view by the company that they were an approved Standard Business Sponsor who could lodge a nomination application for the applicant.      

26. The Tribunal accepts this version of events and is satisfied that the applicant made a genuine attempt to obtain sponsorship within 60 days of the visa grant and that he held a genuine belief that he was sponsored by Mudgee Dolomite and Lime Pty Ltd and that the sponsorship not progressing was beyond his control.

27. The Tribunal gives some weight to these matters in favour of not cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

28. There is no evidence before the Tribunal that indicates the applicant has been unco-operative towards the Department.

    Whether there would be any consequential cancellations under s.140

29. There is no-one whose visa will be consequentially cancelled.

    Whether there are mandatory legal consequences

30. The Tribunal has considered whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a 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.

31. Cancellation means that the applicant will be required to depart Australia.  Unless he does not comply with this condition, he will not be unlawful or liable to detention relating to the cancellation.  The applicant will have very limited options with regard to being able to make a valid visa application without the Minister’s intervention.  He will not, for example, be able to apply for a Subclass 482 visa onshore while he does not hold a substantive visa.  He would have to apply for it offshore.

32. In the applicant’s circumstances, the Tribunal gives some weight to this in favour of not cancelling the visa.

    Whether any international obligations would be breached

33. There is no information before the Tribunal and no claim has been made by the applicant that Australia’s international obligations would be breached if the visa is cancelled and the applicant is required to depart Australia.

    If a permanent visa, whether there are strong family, business or other ties to Australia

34. The Subclass 457 visa is not a permanent visa and this consideration is not applicable.

    Any other relevant matters

35. The applicant has provided the Tribunal with a letter from Entity Solutions Pty Ltd, dated 21 February 2019.  The letter states that the company understands that the applicant previously held a Subclass 457 visa and confirms ‘…that if Lito S Declan (the applicant) is given a favourable outcome at the AAT regarding obtaining another 482 visa, Entity Solutions Pty Ltd would be willing to nominate him for sponsorship’.  The letter is signed by Virginia Petracca, Head of Migration and Agency Solutions. 

36. The purpose of the Subclass 457 visa is to provide for temporary entry of skilled workers where there is a skill shortage.  The applicant has remained working in the nominated occupation, but does not currently have a sponsor.  If the visa is not cancelled, the Tribunal is satisfied that the company, Entity Solutions Pty Ltd, has a genuine intention to lodge a nomination identifying the applicant in the occupation for which the Subclass 457 visa was granted, that of Mechanic.  They have provided a letter dated 21 February 2019 stating the same.  The applicant’s migration agent gave oral submissions at the end of the hearing and said, essentially, that it is difficult for someone in the applicant’s situation to attract a new sponsor, because they are hesitant to move forward because the applicant does not hold a substantive visa.  Ms Everett said that the best they could manage in the circumstances was to provide the letter from Entity Solutions Pty Ltd, who are a regional employer.    

37. The Tribunal made its own independent inquiries and can see, from the Integrated Client Services Environment system, that Entity Solutions Pty Ltd has an On-Hire Labour Agreement valid from 27 August 2018 to 26 Australia 2023 and that it has had many nominations granted for 457 and 482 visas.

38. The Tribunal has considered and weighed up all of the relevant matters in this case and acknowledges that the applicant has made attempts to secure a nomination with an approved sponsor and that he has continued to work in the occupation for which his visa was granted.  It is acknowledged that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant has generally complied with visa conditions and has been cooperative with the Department.  As the Tribunal is satisfied that a nomination application by Entity Solutions Pty Ltd is imminent if his visa is reinstated, there can be no utility in requiring the applicant (through cancelling his visa), taking all his circumstances into account, to travel offshore so it can be lodged.

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

    DECISION

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

    Jennifer Cripps Watts
    Member