Eroles (Migration)

[2020] AATA 5795

Eroles (Migration) [2020] AATA 5795 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Romel Mundas Eroles

CASE NUMBER:  1933661

HOME AFFAIRS REFERENCE(S):          BCC2019/3906889

MEMBER:Mark O'Loughlin

DATE:29 October 2020

PLACE OF DECISION:  Adelaide

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 29 October 2020 at 5:02pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– ceased employment for a period exceeding 60 consecutive days –breached condition 8607 – substantial hardship – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 November 2019 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 ceased working for his sponsoring employer on 24 April 2019 and had not returned to work for that employer for more than 60 consecutive days. 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 6 October 2020 to give evidence and present arguments. 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. The representative attended the Tribunal hearing.

   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). 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

6. 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 attached to the applicant’s visa. At 8607 (5) this condition requires that the visa holder must not cease employment for a period exceeding 60 consecutive days.

7. The applicant had provided a copy of the delegate’s decision of 25 November 2019 to the Tribunal. The delegate found that the applicant had conceded that there are grounds for cancellation in the applicant’s response to a Notice of Intention to Consider Cancellation.

8. There is nothing in the evidence that the applicant gave to the Tribunal that is inconsistent with the existence of grounds for cancellation.

9. The Tribunal finds that the applicant ceased the relevant employment for a period exceeding 60 consecutive days and had breached condition 8607 that attached to his visa.

10. 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

11. 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’.

12. The applicant gave evidence that he first came to Australia on 14 March 2019.

13. He said that he went to Melbourne to work for his sponsor, Preston Chassis Industries Pty Ltd. He worked as a welder which is what he had done in the Philippines and also in the Middle East. Most of his work was in shipyards and in heavy machinery.

14. The applicant advised that the work at Preston Chassis Industries Pty Ltd started very well but his relationship with the foreman deteriorated to the point that he could not continue.

15. The applicant complained that the foreman would swear at him and blame him unfairly for problems with the work. The applicant gave evidence that he was very unhappy, and his performance was affected.

16. He said that in the Easter break following him starting with that work he went to visit his sister in Queensland. His sister lived in Emerald.

17. He said that he emailed Preston Chassis Industries Pty Ltd with his resignation and that he thought that that was 18 April 2019. After the hearing the applicant provided a copy of a letter to Preston Chassis Industries Pty Ltd which was dated 24 April 2019 and gave 24 April 2019 is the applicant’s last day of employment.

18. There is no obvious importance in the apparent error in the applicant’s evidence about the date of his resignation.

19. The applicant said that he did not know whether or not his employer was expecting his resignation. He said that he had not complained because he was concerned about his visa status but he had been quite unhappy for about two weeks.

20. He said that most of the other workers there were Australian citizens but that he met a person called James who was also from the Philippines and also complained of poor treatment. He said that he is not sure whether James also left but that he has heard that the company has now been bought and that the foreman is no longer there.

21. He also said that James, who complained of poor treatment, had a different foreman because he was on a different shift.

22. The applicant said that his sister had bought him a ticket to go to Emerald for a holiday. He said that by the time he went to Emerald he had definitely decided to resign from Preston Chassis Industries Pty Ltd.

23. He said that once he got to Emerald his brother-in-law helped him to look for work. He told the Tribunal that his brother-in-law is a boilermaker welder.

24. Within about three weeks of getting to Emerald his brother-in-law helped him get a job for a company called Pierce Engineering. His work there involved structural welding.

25. He worked there for about seven months finishing in December 2019. In December 2019 he started work at Independent Mining which is in Mackay. His previous work at Pierce Engineering had been in Rockhampton.

26. The applicant said he had only stayed with his sister for about three weeks and had moved away for work.

27. The applicant understood that Pierce Engineering had experienced some financial problems. He said that they had tried to sponsor him but that that had not been successful, and he thinks that that may have been due to a contraction in the business. Ultimately, he was retrenched profound new work quickly.

28. The applicant said he is very happy with his new work.

29. The applicant told the Tribunal the purpose of his travel to and stay in Australia is to work as a welder. He said that his family in the Philippines requires support and he is hoping to fund some eye surgery for his wife who suffers from glaucoma.

30. He said that he will not be able to afford the surgery if he works as a welder in the Philippines.

31. He also said that his son is due to start tertiary education and his daughter will be starting in a year or two. He said that he hopes to be able to fund his children’s education through his earnings in Australia.

32. In relation to the extent of compliance with the applicant’s visa conditions the Tribunal finds that the applicant was in breach of his visa conditions within 60 days of 24 April 2019. That means that he was in breach of his visa for about five months. The Tribunal finds this to be a substantial breach and accords this consideration some weight in favour of cancellation of the applicant’s visa.

33. The applicant has described substantial hardship that is family are likely to suffer if he is denied the opportunity to work in Australia as a welder. Tribunal accepts that being forced to return to the Philippines will compromise his capacity to fund his wife’s eye surgery and his children’s educations. The Tribunal accords this factor significant weight against cancellation of the applicant’s visa.

34. The applicant describes victimisation at work. This is of its nature subjective although there is an element of support in an email provided by James Comia in support of the application. That email suggests that there was an element of conflict between the foreman and the workers in the company and that he observed significant turnover in new staff. That evidence was untested, but the Tribunal accords it some weight.

35. The Tribunal accepts that the applicant was extremely unhappy at work and, although it appears that this may have been in part subjective to the applicant, the Tribunal finds that the circumstances in which the ground of cancellation arose are neutral in relation to cancellation of the visa.

36. There is nothing in the evidence that suggests past or present behaviour of the visa holder towards the Department that is other than cooperative. The Tribunal accords this consideration some weight against visa cancellation.

37. There is no evidence that cancellation of the visa would result in consequential cancellations under section 140 and this consideration is neutral as regards the discretion to cancel the applicant’s visa.

38. If the applicant’s visa is cancelled he will suffer the usual consequences thereof and in particular he will be subject to the provisions of section 48 the Act which may restrict him in an application for a further visa, which the applicant has already indicated that he wishes to pursue. The Tribunal accords this consideration some weight against visa cancellation.

39. Further, unless the applicant obtains a bridging visa or an alternative visa he will become an unlawful non-citizen and be liable to detention and removal under the Act. This is the ordinary consequence of these cancellation in the Tribunal accords it neutral weight in considering the exercise of its discretion to cancel the applicant’s visa.

40. There is no evidence the cancellation of the applicant’s visa would result in breach of Australia’s international obligations and the Tribunal finds that this consideration is neutral in considering its discretion to cancel the applicant’s visa.

41. There are no other matters that the Tribunal considers relevant to its exercise of discretion to cancel the applicant’s visa.

42. Having considered the applicant circumstances as a whole the Tribunal finds that the applicant was probably so unhappy in his sponsored employment as to be distressed and to view himself as having no option but to resign. The Tribunal also considers that the hardship that would probably be visited upon the applicant and his family if his visa was cancelled and he was thereby restricted in seeking a further placement in Australia would be substantial.

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

    DECISION

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

    Mark O'Loughlin
    Member