Maratas (Migration)

[2020] AATA 5802

Maratas (Migration) [2020] AATA 5802 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gilberto Maratas

CASE NUMBER:  2001305

HOME AFFAIRS REFERENCE(S):          BCC2019/3905367

MEMBER:Michael Cooke

DATE:29 October 2020

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 29 October 2020 at 9:27am

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – breached condition 8107– financial hardship – suffered significant psychological trauma – subject of a new and not yet approved nomination –under review set aside

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 January 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 did not comply with visa 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 28 October 2020 to give evidence and present arguments.

4. 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

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. 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

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 8107(3)(b) to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which they cease employment must not exceed 60 consecutive days.

7. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was LAY STRAIGHT BRICKLAYING PTY LTD ('the sponsor'), whose nomination was approved on 7 December 2016.

8. The sponsor advised the Department that the applicant ceased employment with them effective 30 April 2019. This indicated that the applicant did not comply with condition 8107(3)(b) because the period during which he ceased employment exceeded 60 consecutive days.

9. Based on this information, the delegate found that there were grounds for cancelling his visa under s116(1)(b) of the Act because it appeared that he had not complied with condition 8107(3)(b).

10. The applicant has confirmed in his submission to the Tribunal and in oral evidence that he breached the condition. He has claimed his breach was due to ‘circumstances beyond his control’.

11. 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

12. 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’.

    Consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

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

13. The applicant was granted the Temporary Work (Skilled) (subclass 457) visa on a 7 December 2016 for the purpose of employment with an approved sponsor in a skilled occupation. The sponsor nominated him in the position of Bricklayer. The Department received notification that he ceased employment with the sponsor on 30 April 2019. Since this date, he has been nominated by another approved sponsor to work in a skilled occupation (bricklayer). A new nomination was lodged by RENOVISION HOLDINGS PTY LTD on 28 September 2020 and had the applicant as the nominee. It has not yet been approved. The company’s SBS application was approved on 19 October 2020.

14. The Tribunal gives this consideration significant favourable weight against cancellation.

    ·the extent of compliance with visa conditions

15. Apart from the breach of the condition 8107 (the subject of this review) the applicant has an otherwise previously satisfactory record with the Department. He presently holds a BVE.

16. The Tribunal gives this consideration some favourable weight against cancellation.

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

17. The applicant has outlined in oral evidence and in his Statutory Declaration the circumstances that led to him ceasing employment at the nominator firm. He described a continuous problem of promises made by his employer to facilitate permanent residency for him and fellow Filipino bricklayers, but which was not acted on. At the same time, he was informed by the firm supervisor on various occasions that the firm was going to foreclose. This purported “carrot and stick” behaviour by the employer led to a crisis amongst the bricklayers. Their families depended on the income to maintain their lives and attendant family members in the Philippines. To lose their jobs would have been catastrophic for the men.

18. He insists that, encouraged by promises of support for permanent residency (which never eventuated) their dream of a new life for their families in Australia was shattered time and again. All this alleged behaviour by the employer was against a background of the bricklayers “going the extra mile” to impress the boss by prodigious effort in the bricklaying. Instead of the contracted 350 bricks a day they might lay say 600 a day - he informed. Fearful that his employment was inevitably terminal from the conversations with his supervisor and manager - the applicant sought work elsewhere. His employer informed him he had 60 days to find another sponsor. He then set about this task but a further set of promises were unfulfilled by his next sponsor. Finally, he was able to secure a new nominator and is the subject of a new and not yet approved nomination.

19. The Tribunal has taken note of the applicant’s evidence and finds it to have been given honestly. He claims that the scenario he elaborates is one of ‘factors beyond his control’.

20. In particular, the Tribunal gives favourable weight to the claim that he was played for a game by his employer with their unfulfilled assurances. The Tribunal notes his claim but, as he explained to the Tribunal in oral evidence, the employer did elaborate to him what leaving the firm would entail from a work condition point of view. He blames himself for his ignorance of the serious repercussions he subsequently faced. Nevertheless, in his favour he has sought out, continuously, a solution to his problem of not having a nominator and now has one under Departmental processing.

21. The Tribunal allocates significant weight against cancellation to this consideration. This is because the Tribunal is firmly of the view that he has suffered significant psychological trauma with the ‘toing and froing’ with his employer. Furthermore, to then deprive the applicant and his family of his visa would entail serious financial hardship.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

22. The Tribunal finds that the circumstances that led to the applicant quitting his job were not ‘beyond the visa holder’s control’. He left for the reasons explained earlier which were in his control. Saying that, his decision was not one he wanted to take and there is no evidence that he was a bad employee. His sponsor, as he tells it, made his continuance impossible. The uncertainty, when juxtaposed with his overall financial responsibilities and family maintenance, made leaving appear to be his only logical pathway.

23. The Tribunal gives this consideration some favourable weight against cancellation.

    ·past and present behaviour of the visa holder towards the Department

24. The Tribunal has no adverse information concerning past and present behaviour of the visa holder towards the Department

25. The Tribunal gives this consideration some favourable weight against cancellation.

    ·whether there would be consequential cancellations under s.140

26. Not applicable

    ·whether there are mandatory legal consequences, such as 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

27. If the visa were cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. He would also be affected by section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia. There is no exclusion period imposed under PIC 4013 associated with visa cancellation under these grounds.

28. The Tribunal gives this consideration some favourable weight against cancellation.

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

29. There is no information before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia's non-refoulement obligations.

30. The Tribunal gives this consideration minimal favourable weight against cancellation.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

31. Not applicable

    ·any other relevant matters

32. The applicant has outlined passionately the hardship a cancellation would have for his family. In particular, he pleads that the COVID19 pandemic has made a return to the Philippines very problematic for him and his family due to the impact of it on them. There is also the immediate financial impact of quarantine isolation on return.

33. Considering the circumstances, both individually and cumulatively, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    Michael Cooke
    Senior Member