McQuaid (Migration)

[2018] AATA 4243

McQuaid (Migration) [2018] AATA 4243 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Justin Peter McQuaid
Miss Paula Molloy

CASE NUMBER:  1714764

HOME AFFAIRS REFERENCE(S):           BCC2017/1536148

MEMBER:John Cipolla

DATE:17 September 2018

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 17 September 2018 at 10:00am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – failure to hold valid nomination – ceased employment – skill shortage – health condition – surgical procedure – accumulated debt – attempts to regularise immigration status – found new nomination – value and contribution to new employment – decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) 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 condition 8107(3) of his Subclass 457 visa because the applicant ceased to work in his nominated occupation in his most recently approved nomination. The delegate noted that the standard business sponsor who nominated the applicant in his most recently approved nomination for the visa was Rex J Andrews Pty Ltd. The Department was informed by the applicant’s sponsoring employer that he had ceased work for them on 27 December 2016. The delegate based on this concluded that the applicant ceased employment with the sponsoring business and that the period during which the holder ceased employment exceeded 90 consecutive days.

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. Recourse to the Departmental file indicates as follows. 

5. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 2 June 2017.  The NOICC particularised the ground for cancellation and why the Departmental delegate believed that the ground existed, namely the cessation of the applicant’s employment with his nominating business on 27 December 2016 and his failure to hold a valid nomination for more than 90 consecutive days since that time.

6. The applicant responded to the NOICC on 9 June 2017 through his representative.  That submission noted that an application to transfer the existing Subclass 457 visa to another sponsoring employer had been lodged with the Department. The submission noted that the applicant had skills that are recognised and valued in this country as a Transport Company Manager. The submission noted that the applicant had worked in Australia for an extended period and had qualifications and experience in his industry totalling 20 years. The submission further noted that the applicant had done his utmost to regulate his immigration status and had acted with good intentions up until the breach and had otherwise fully complied with the conditions of all visas held in the past. The submission notes that the applicant would experience significant disadvantage and hardship should his visa be cancelled. The submission notes that the nominated position of Transport Company Manager is on the Medium and Long-Term Strategic Skills List which provides evidence of the applicant’s value to Australia in terms of his experience and the value that he can provide a prospective employer with. The submission then concedes that the applicant had not worked in sponsored employment for more than 90 days and that the grounds for cancellation existed but implores the Departmental delegate to not cancel the applicant’s visa.

7. The Departmental delegate considered the applicant’s response to the NOICC and proceeded to cancel the applicant’s Subclass 457 visa in a decision made on 7 July 2017. The delegate noted that the applicant was not the subject of an approved nomination since ceasing employment with his sponsor on 27 December 2016.  The delegate considered the relevant considerations in order to determine whether or not the visa should be cancelled and proceeded to cancel the applicant’s visa having regard to those considerations.

8. The applicant lodged an application for review with the Tribunal on 10 July 2017.

9. On 26 June 2018 the Tribunal wrote to the applicant inviting the applicant to comment on or respond to information that the Tribunal considered could be the reason, or part of the reason for affirming the decision under review. The letter noted that the applicant had been granted a Subclass 457 visa on 8 September 2016, valid to 8 September 2019, however his visa was cancelled on 7 July 2017. The Tribunal noted that the applicant was sponsored for this visa by Rex J Andrews Pty Ltd.  The letter noted that the applicant’s Subclass 457 visa was subject to the condition 8107 work restriction, which required that the applicant must not cease to be employed by his approved sponsor and that if he ceased employment the period must not exceed 90 consecutive days.

10. The letter noted that the applicant ceased being employed by his sponsoring business on 27 December 2016 and that on 7 July 2017, the date on which the applicant’s visa was cancelled, he had not worked for his sponsor for more than 90 consecutive days. The letter noted that a recent check indicated that no new relevant business nomination had been approved in respect of the applicant since his visa was cancelled. The Tribunal invited the applicant to provide any evidence as to whether or not he agreed that the grounds for cancellation existed and any evidence as to why his visa should not be cancelled.

11. The Tribunal received a response to the 359A letter on 10 July 2018 which was provided by the applicant’s representative. The letter makes reference to the applicant’s immigration history in Australia. The letter notes that the applicant is a qualified and experienced Transport Company Manager and that he holds a Bachelor of Science in Transportation with second class Honours from the University of Ulster and a Diploma in Industrial Studies and that he had worked extensively as a Transport Company Manager in Ireland prior to migrating to Australia. Further to this the submission notes that the applicant had in excess of five years of experience as a Transport Company Manager in Australia and that he had previously held a Subclass 457 visa as a Project Administrator (Transport). The submission notes that the applicant worked for his last sponsoring employer for well over a year. The submission notes that the applicant is being pursued by another sponsor Wagyu Pty Ltd, a large transport company based in New South Wales. Evidence was provided of the income that this company is currently generating and pertaining to the scope of the proposed sponsoring business. The submission makes reference to the skill shortage for Transport Company Managers in Australia. The submission notes that the applicant had resided in Australia since December 2010 and was in a de facto relationship with the secondary applicant Ms Paula Molloy who had lived and worked in Australia since February 2015.

12. The Tribunal received a comprehensive pre-hearing submission dated 4 September 2018 which it has duly considered addressing factors as to why the visa should not be cancelled. With regard to compliance with visa conditions the submission notes that towards the end of 2015 the applicant became unwell and that his medical condition deteriorated and this precluded him from continuing in his occupation from late December 2016. Annexed to the submission was corroborative medical evidence indicating that the applicant had experienced significant medical difficulties over 2015, 2016 and 2017 which necessitated ongoing medical treatment and hospital admission for surgery in 2017. The submission further notes that if a decision was taken to cancel the applicant’s visa, the applicant would be precluded from returning to Australia as the holder of the temporary visa for a three-year period as a consequence of the provisions of Public Interest Criteria 4013 and 4014.

13. The Tribunal conducted a hearing on 11 September 2018. The applicant attended the hearing as did his partner and prospective employer. At the outset of the review hearing the Tribunal went into extensive detail about the process of merits review and the respective issues in the review.

14. The applicant gave his name and date of birth. The applicant advised that he arrived in Australia on 25 December 2010 as the holder of a visitor visa. The applicant stated he then applied for a subclass 457 visa to work for a business, Kenna Constructions as a transport company manager. The applicant stated that the subclass 457 visa was granted and he worked for this business from June 2011. The applicant whilst holding this visa switched employers to a business called Subacette Pty Ltd based in St Peter’s. The applicant advised that he worked in this business as a Transport Company Manager. The applicant was then headhunted from this business by Rex Andrews Pty Ltd and worked for Rex Andrews Pty Ltd from 2015 until the end of 2016.

15. The Tribunal asked the applicant why he left this employer. The applicant stated that this business was involved in heavy haulage. He advised that he experienced a lot of health issues from 2015 that progressively worsened during 2016. The applicant stated that as a consequence of these health issues he ceased employment with Rex Andrews Pty Ltd in December 2016. The applicant stated that as a result of specialist intervention along with surgical intervention that the health issues are under control and he is now fit to resume work.

16. The Tribunal noted that there was no reference to these health issues by the applicant’s representative in response to the NOICC. The applicant’s representative advised the Tribunal that this was a significant oversight, that there was evidence pertaining to the applicant’s health condition that existed at the time of the response, that it should have been provided and that it was remiss not to do so.

17. The Tribunal asked the applicant what hardship he would experience if his visa was cancelled. The applicant stated that since the cancellation of his visa in July 2017 he did not have permission to work and that as a consequence he had accumulated significant debt in order to pay his cost of living expenses along with those of his partner’s Ms Molloy. The applicant stated that he had spent significant time living and working in Australia and had hoped that this may lead to permanent residence in the future. The applicant stated that after an extended period outside Ireland it will be difficult for him as a 42-year-old to re-establish his life in that country.

18. The Tribunal took evidence from the applicant’s prospective employer Mr Eoin O’Neill.  The witness advised that he had met the applicant through mutual friends. He advised that he ran a large and successful transport haulage business based in South Strathfield. He advised that he wanted to employ an experienced transport company manager and that he had extreme difficulty in finding somebody with the skills and depth of experience of the applicant from within the Australian community. The witness advised that he had 3 people working in this role who are Australian residents and none of them had worked out. The witness stated that with the applicant’s expertise and skills he believed that the applicant could make a significant contribution to the growth of his business and that there is a prospect to increase the volume of business by 50% over 2 years.

19. The Tribunal took evidence from the applicant’s partner Ms Molloy.  The witness advised that she had been in a relationship with the applicant for in excess of 3 years. She advised that the applicant ceased working with his previous sponsoring employer because of medical issues that precluded him from working. The witness confirmed that the applicant had sought medical and surgical intervention to address these issues. The witness advised that as a consequence of the applicant and herself not being able to work they had accumulated significant debts. The witness advised that both she and the applicant had resided in Australia for an extended period of time and that re-establishing lives for themselves at this stage of their lives in Ireland would be difficult.

20. The Tribunal asked that the applicant provide any further evidence about the ramifications of the cancellation of his visa and a prospective return to Ireland.  The applicant stated that he believed that he had a solid future with his prospective employer in Australia and that he saw his life in Australia. He advised that he had moved to Australia and adapted to life well in this country. Ms Molloy advised that she had a Diploma in Childcare and could contribute to the Australian community through her skills. The applicant stated that he and his partner hoped to be able to bring up a family in Australia. The hearing concluded.

    Does the ground for cancellation exist?

21. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal 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. The relevant paragraph of this condition is 8107(3)(b) which requires that if the applicant ceases employment with the sponsor, the period during which the holder ceases employment must not exceed 90 consecutive days.

22. As indicated above, the evidence before the Department indicated that the applicant’s employment ceased effective 27 December 2016.

23. At the time of the delegate’s decision, the applicant had ceased employment with the sponsor that last nominated him for a period in excess of 90 consecutive days. On this basis, the Tribunal finds that the applicant breached condition 8107(3)(b) of his 457 visa.

24. 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 power to cancel the visa should be exercised.

    Consideration of discretion

25. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

26. The Tribunal has first considered the purpose of the applicant’s stay in Australia and whether there is a compelling need for him to remain in Australia. The purpose for which the 457 visa was granted is for the applicant to work in the approved nominated occupation of Transport Company Manager, a role for which the applicant possesses the requisite skills and qualifications.  The evidence before the Tribunal indicates that the applicant worked for a number of years in this role for 3 Australian businesses and the evidence indicates that the applicant up until the cessation of his employment on 27 December 2016 complied with visa conditions. The evidence indicates that during 2015 the applicant developed medical issues that became exacerbated over 2016 and led to him making a decision to cease work for his last sponsoring employer on 27 December 2016. The Tribunal has been given substantial evidence corroborative of this medical condition that required both medical and surgical intervention. The Tribunal finds that the applicant left his last sponsoring employer on the basis of medical issues that were beyond his control. The evidence before the Tribunal indicates that the applicant since the rectification of his medical issues has made every attempt to regularise his immigration status through finding new employment.  The evidence indicates that the applicant has found a new nominating employer Wagyu Pty Ltd and the Tribunal received compelling evidence from the applicant’s prospective employer of the value and contribution that the applicant will be able to make to this Australian business in the position of Transport Company Manager. The applicant’s representative advised that she believed that the application to sponsor the applicant is a meritorious one and should be approved by the Department of immigration in due course.

27. The evidence before the Tribunal indicates that the applicant travelled to Australia as a 34-year-old to work as a Transport Company Manager and the evidence before the Tribunal indicates that up until the point that the applicant was befallen by ill health he complied with the conditions attached to his visas. The evidence before the Tribunal indicates that the applicant has been in a long term de facto relationship and that his de facto has skills and qualifications in child care.

28. The Tribunal notes if the current nomination is approved it will enable the considerable skills of the applicant to be utilised by an Australian business and to contribute to the growth of that business.

29. The Tribunal also notes that if the applicant’s visa is cancelled he will be precluded from returning to Australia as the holder of the temporary visa for a three-year period as a consequence of the provisions of Public Interest Criteria 4013 and 4014.

    CONCLUSION

30. In considering the circumstances as a whole, the Tribunal is satisfied that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled.

    DECISION

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

32. The Tribunal has no jurisdiction with respect to the second named applicant.

    John Cipolla
    Senior Member