Hughes (Migration)

[2021] AATA 2652

Hughes (Migration) [2021] AATA 2652 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Andrew Hughes

CASE NUMBER:  2003375

HOME AFFAIRS REFERENCE(S):          BCC2018/317123

MEMBER:R. Skaros

DATE:20 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 – Regional Sponsored Migration Scheme visa.

Statement made on 20 May 2021 at 2:22pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – nominated employment terminated within two years of commencement – genuine effort to be engaged in that employment for required period – reason for termination – sponsor unable to secure major tender or applicant failing workplace alcohol test – weight of evidence favours sponsor’s inability to secure tender – work for other employer and as subcontractor while waiting for more work from sponsor – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 137Q

Migration Regulations 1994 (Cth), r 2.50AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2020 to cancel the applicant’s Subclass 187 – Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.137Q on the basis that the applicant’s nominated employment, which the delegate was satisfied had been commenced, was terminated within 2 years of commencement and the delegate was not satisfied that the applicant had made a genuine effort to be engaged in that employment for the required 2-year period.

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

4. The applicant appeared before the Tribunal on 30 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Ms Megan Grace, his brother, Mr Ian Hughes, and his former co-worker, Mr Thomas Holden.

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.137Q, the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the Regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

   Does the ground for cancellation exist?

8. Under s.137Q(2), the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2-year period.

9. The evidence before the Tribunal indicates that the applicant was successfully nominated by Catalpa Resources Pty Ltd (Catalpa) for a position in the occupation of Carpenter under the Regional Employment Migration Scheme (RSMS). The Tribunal finds that this is the employment referred to in the relevant employer nomination.

10. The Tribunal is also satisfied on the evidence before it, including payslips, employment references and bank account statements, that the applicant commenced the employment with Catalpa in June 2016, albeit as the holder of a Subclass 457 visa.

11. Following approval of the RSMS nomination by Catalpa in respect of the applicant, the applicant was granted the Subclass 187 visa on 27 June 2017.

12. The evidence before the Tribunal, which is not in dispute, is that the applicant’s employment with Catalpa terminated in October 2017. On this basis, the Tribunal finds that the applicant was not engaged in the employment referred to in the relevant employer nomination for 2 years from commencement.

13. The issue on which this matter turns is whether the Tribunal is satisfied that the applicant made a genuine effort to be engaged in the employment for the 2-year period. In determining this issue, the Tribunal has had regard to the relevant evidence before it, including material on the Department’s and Tribunal’s files and oral evidence received at the hearing.

    Evidence before the Tribunal

14. On 23 October 2017, the Department received information from the Director of Catalpa Resources Pty Ltd, Mr Fergus O’Neill, regarding the employment status of several persons who had been nominated by Catalpa. This information, the Tribunal understands, was in response to a request for information sought by the Department from Catalpa as part of an audit process. Relevantly, the information indicated that the applicant’s employment was terminated in October 2017 after he failed a random alcohol test at work.

15. On the basis of above information, on 18 October 2019, the Department issued to the applicant a notice of proposed cancellation under s.137Q (the notice).

16. In response to the notice, the applicant’s representative contended that the applicant had been made redundant due to the company’s inability to secure a major tender for phase two of the mining project at the Silvergrass mine site that the applicant had been working on during phase one.

17. The applicant provided a statement detailing the history of his employment with Catalpa. Relevantly, he stated that in October 2017, the work Catalpa was undertaking at the mines was starting to slow down and he had heard from colleagues that Catalpa had finished stage one of the formwork and steelwork that needed to be done, but had not won the contract with Rio Tinto for stage two of the work. The applicant stated that on 13 October 2017, the mine site supervisor called him and 30 of his co-workers for a meeting and told them that the company was experiencing a quiet period and did not have any more work for them but that they would be in touch if there was work for them in the future.

18. The applicant stated that he spoke to Mr Fergus O’Neill who told him that there was no work for him at that time, but he would be contacted if the situation improved. The applicant stated that he learnt from Mr Fergus O’Neill about a work opportunity with Abyss Construction Pty Ltd in Griffith, who had been contracted to work on a canal modernisation project. He stated that he was unsure of when work would be available with Catalpa again so he decided to take up the opportunity with Abyss Construction where he worked from 23 October 2017 until November 2018. The applicant stated that from January 2019, he has been working as a subcontractor formwork carpenter under his own registered company JSH Form and Civil Pty Ltd (JSH) and that he has since worked on numerous construction projects.

19. The applicant also provided a letter dated 29 October 2019 from another Director of Catalpa Group, Mr Barry O’Neill, which stated that the applicant worked with Catalpa from 13 June 2016 until 13 October 2017. He stated that while they would have liked to keep the applicant with Catalpa, they were unable to do so due to losing a few mining tenders. Mr Barry O’Neill stated that due to the downturn in the economy, the work for Catalpa slowed down and they had to terminate the applicant’s employment earlier than expected.

20. Also provided was a statement from Mr Michael Larkin, who was one of the site supervisors for Catalpa at the Silvergrass mine at the time of the applicant’s employment. In his statement, Mr Larkin confirmed that the applicant had been working on the Silvergrass mine for about 6 to 7 months until October 2017 when Catalpa’s project at the mine came to an end. He stated that while Catalpa had been expected to win another major formwork and steelwork contract, this did not occur due to the downturn in the mining sector. Mr Larkin stated that the employment of the applicant and about 30 other workers had to be terminated as there was no more work. Mr Larkin stated that if Catalpa had won the contract as expected, then the applicant would have continued working for Catalpa.

21. Also provided was a statement from Mr Thomas Holden who worked with the applicant at the Silvergrass mine site. Mr Holden stated that he had been working with Catalpa on and off as a subcontractor from 2012 until October 2017. He stated that on 13 October 2017 he and about 30 people, including the applicant, were called into a meeting by the site supervisor, Alan Garvey, and informed that Catalpa did not have any more work available for them at that time and that they would be contacted when work became available.

22. The applicant also provided a letter from Mr Tim O’Connor, the Director of Abyss Construction Pty Ltd, dated 13 January 2020, stating that the applicant commenced work with them on 23 October 2017 as a carpenter (subcontractor). Mr O’Connor stated that the applicant had been recommended to them by one of their workers who informed them that the applicant had been working in the mines in WA and had been let go as there was no more work. He stated that the applicant continued to work for them until November 2018.

23. The applicant also provided copies of his payslips, bank statements, invoices and receipts evidencing his employment as a carpenter in regional Australia for Catalpa, Abyss Construction and under his own registered company JSH.

24. On review, the Tribunal received an updated statement from the applicant in which he provided further responses in relation to the allegation that he had failed an alcohol test whilst working for Catalpa. The applicant also provided further information, with supporting documents, about his current circumstances, including his employment in regional Australia as a formwork carpenter on the Snowy Hydro 2.0 project, his relationship with an Australian citizen, and the hardship that he, his partner and his family, including his daughter in Ireland whom he financially supports, would experience if he is unable to remain in Australia.

25. In seeking to explain why Catalpa would provide information to the Department that he was terminated because he failed an alcohol test, the applicant suggested that Catalpa may not have provided truthful information in the letter to the Department dated 23 October 2017 as they were highly reliant on overseas sponsored workers to fill skills shortages. The applicant stated that he recalls one of the people he worked with, Paul Murray, had failed one of the random alcohol breath tests, but the letter dated 23 October 2017 from Catalpa to the Department stated that Paul Murray was granted leave with no pay for 3 months in February 2017 and had not returned to work. The applicant stated that it was his understanding that Paul Murray was dismissed because he failed an alcohol test.

26. The applicant further stated that due to the zero alcohol policy on the Silvergrass mine site, he was very cautious about his alcohol consumption as he and other employees were breathalysed daily. The applicant stated that if he drank, he would breath test himself as he did not want to risk failing an alcohol test as he knew it could cost him his job.

27. At the hearing, the Tribunal had the opportunity to take evidence from the applicant and the witnesses about the circumstances that led to the termination of the applicant’s employment with Catalpa and the applicant’s current circumstances.

28. At the hearing, the Tribunal had the opportunity to question the applicant at length regarding his employment at Catalpa. In responding to the Tribunal’s queries, the applicant gave evidence that he normally worked 5 and a half days a week, with the half day usually being on Saturday. When asked about the mine’s zero alcohol policy and the breath tests conducted on workers, the applicant explained that every morning on the way to the Silvergrass mine site, he and other workers would be breath tested by the site supervisor on duty. The applicant stated that once they got to the mine site, all the workers, including those employed by other companies, would be breath tested again before being allowed to commence work. When asked what would happen to a worker if they were found by the supervisor to have failed an alcohol breath test, the applicant stated that if it was on the way to the mine, the worker would be returned to their accommodation and the owners of Catalpa would be informed. When asked if that would have resulted in the dismissal of the worker, the applicant explained that if the worker failed the alcohol breath test on the bus then it would be up to the discretion of the owners Barry and Fergus, but if it was on the mine site it would be instant dismissal. When asked if he had ever failed an alcohol breath test either on the way to the mine or at the mine site, the applicant emphatically said never. The applicant gave evidence that while he did drink most nights, he was always very careful to ensure that his consumption was moderate and that he would not risk losing his job.

29. The Tribunal also discussed with the applicant his current circumstances, including his current employment in Australia, his family ties in Australia, including his relationship with Ms Grace, and the financial and emotional hardship that may be experienced by him and members of his family if his visa is cancelled. The Tribunal also took evidence from Ms Grace about her relationship with the applicant and the difficulties she would experience if his visa is cancelled.

30. In his evidence to the Tribunal, Mr Ian Hughes, the applicant’s brother, gave evidence about his relationship with the applicant which he indicated was quite close. Mr Ian Hughes gave evidence that the applicant had contacted him to tell him that Catalpa had made false allegations about him failing a breath test. He stated that the applicant was surprised and upset about the accusation. He stated that the applicant is very careful and would have checked himself.

31. In his evidence to the Tribunal, Mr Thomas Holden confirmed much of the information in his written statement about periods of time he worked with Catalpa. He confirmed that he worked for Catalpa in 2017 at the same time as the applicant. Mr Holden gave evidence that drug and alcohol tests were conducted every day before they were allowed on the mine site. When asked if, to his knowledge, the applicant had ever failed an alcohol breath test, he stated no, he does not recall the applicant ever failing a drug or alcohol test. He stated that there was a downturn in the economy and Catalpa did not have a lot of work on and had to lay off a lot of people, including the applicant, in October 2017.

    Consideration of the evidence

32. The Tribunal has carefully considered all the evidence before it and has formed the view that the overwhelming weight of the evidence strongly suggests that the applicant’s employment with his nominating employer terminated within the 2-year period due to an economic downturn and the nominator failing to secure further contracts and not because of an incident over which the applicant had some control, namely, failing to pass an alcohol test.

33. The Tribunal accepts, as submitted by the representative, that the letter dated 23 October 2017 signed by Mr Fergus O’Neill stands in isolation when considering the reference letter from Mr Barry O’Neill dated 29 October 2019 and the statements of Mr Michael Larkin and Mr Thomas Holden which support the applicant’s account of the events leading up to the termination of his employment with the nominator.

34. The Tribunal has also had regard to the submission that the 23 October 2017 letter should not be relied on as a basis for cancellation as it contains incorrect information in relation to Paul Murray’s departure from the company and that this error detracts from the credibility of the explanation given for the applicant’s termination. It has also had regard to the submission that the 23 October 2017 letter was prepared by Catalpa in the context of a business monitoring assessment by the Department as they were at risk of being assessed for potential breach of sponsorship obligations, and it was submitted this could be a reason why Catalpa provided incorrect information in that correspondence to the Department about the applicant and other sponsored staff.

35. The Tribunal is unable to comment on the accuracy or otherwise of the matters noted in the 23 October 2017 letter as there is limited information before it regarding the context in which that letter was provided and the motive, if any, that Catalpa may have had to provide incorrect information. In the letter, Mr Fergus O’Neill appears to make admissions that Catalpa has not complied with its obligations to notify the Department when certain events occur, including when the nominated employees ceased employment with them.

36. Of note is Mr Fergus O’Neill’s explanation in the letter that the person in their company who had the responsibility for monitoring the employment of nominated persons had resigned from her position and that her duties were not formally assigned to any particular individual and were dealt with on an ad hoc basis by different people. In this context, it is plausible that the required records may not have been kept by Catalpa and that the 23 October 2017 letter may have contained errors. The Tribunal also notes that the 23 October 2017 letter was in relation to the employment status of 6 nominated persons, whereas the letter dated 29 October 2019 was only in relation to the applicant.

37. In his letter dated 29 October 2019, Mr Barry O’Neill indicates that the only reason Catalpa could not maintain the applicant’s employment beyond 13 October 2017 is because Catalpa had lost a few mining tenders and their work had slowed down. The Tribunal considers that if Catalpa’s records had indicated that the applicant’s employment was terminated due to a failure to pass an alcohol test then it seems unlikely that a Director of the company would have issued the reference letter indicating that they would have liked to keep the applicant had it not been for the downturn. Furthermore, the information in the reference letter appears consistent with information contained in the statements provided by Catalpa’s site supervisor, Mr Michael Larkin, and a former subcontractor, Mr Thomas Holden, indicating that 30 workers, including the applicant, had to be laid off by Catalpa on 13 October 2017 due to the company’s failure to secure the contract for the second stage of the Silvergrass mine project.

38. The applicant categorically denied ever failing an alcohol test whilst working for Catalpa and there is limited supporting evidence before the Tribunal to substantiate the conflicting information in the 2017 letter that the applicant had failed an alcohol test whilst employed with Catalpa. There is also limited evidence before the Tribunal regarding the terms and conditions of the applicant’s employment with the nominator and whether a failure to pass an alcohol breath test would result in the automatic termination of his employment. The Tribunal is unable to be satisfied, given the limited substantive evidence before it, that the applicant’s employment with the nominating employer was terminated within the 2-year period due to the applicant failing an alcohol test.

39. At the time of the termination, the applicant had been employed with Catalpa for 16 months. In all his written statements and oral evidence to the Tribunal, the applicant has consistently maintained that he would have continued employment with the nominator had Catalpa been able to secure further contracts. This evidence is corroborated by Catalpa’s former site supervisor, Mr Larkin, who stated that the applicant and the 30 other workers who were terminated on 13 October 2017 would have continued working for Catalpa had they won the contract as expected. The applicant’s evidence, which the Tribunal accepts, is that the only reason he went to work with Abyss Construction, which is also a company that operated in regional Australia, in late October 2017 was due to the uncertainty surrounding when and if Catalpa would have work available.

1. Having carefully considered the evidence before it, the Tribunal is satisfied that the applicant had made a genuine effort to be engaged in the approved employment as a carpenter with Catalpa for a period of 2 years.

2. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that the power to cancel the applicant’s visa does not arise.

3. Having found that the ground for cancellation under s.137Q does not exist, it is not necessary for the Tribunal to consider the matters raised by the applicant relevant to the exercise of the Tribunal’s discretion.

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 – Regional Sponsored Migration Scheme visa.

   R. Skaros

   
   

   Senior Member