Pingol (Migration)

[2022] AATA 1145

Pingol (Migration) [2022] AATA 1145 (13 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joel Queano Pingol

REPRESENTATIVE:  Mr Roy Rodolfo Lao Nicomedes (MARN: 0742343)

CASE NUMBER:  2110614

HOME AFFAIRS REFERENCE(S):          BCC2021/361942

MEMBER:Mary Sheargold

DATE:13 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 13 April 2022 at 3:19pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – occupation of Panelbeater – applicant ceased employment over 60 days – impact of the COVID-19 pandemic lockdowns – applicant found alternative employment – no further approved nomination – financial hardship – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Joel Queano Pingol is a 52 year old Filipino national.  He came to Melbourne in 2018 to work as a panelbeater in the hope of providing a better life for his family back home.  In 2020, the Covid-19 pandemic hit, Victoria was placed into a period of extended lockdown, and he was unable to work with his sponsoring employer.  In late 2020, his sponsor offered to transfer his employment to Queensland, but he was not prepared to leave Melbourne.  Rather, he resigned from his employment and found alternative employment.  On learning that Mr Pingol no longer worked for his sponsoring employer, the Department of Home Affairs took steps to cancel his Subclass 457 visa.

2. The Tribunal is tasked with determining whether there is a ground to cancel Mr Pingol’s visa and if so, whether, taking into account all the relevant considerations, it should exercise its discretion to cancel his visa.  Mr Pingol agrees that the grounds to cancel his visa exists.  The Tribunal has weighed up the circumstances surrounding Mr Pingol’s breach of his visa conditions leading to the cancellation against his personal circumstances, and for the reasons set out below, concurs with the delegate that his visa should be cancelled.

3. To assist the Tribunal in its decision, Mr Pingol was invited to attend a hearing.  He appeared before the Tribunal on 18 February 2022 by MS Teams video link. The Tribunal also received oral evidence from Theo Economou, who is the applicant's current employer.

4. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and Mr Pingol’s personal circumstances. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that Mr Pingol was given a fair opportunity to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.  Mr Pingol was represented in relation to the review. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. On 6 August 2021, a delegate of the Minister for Home Affairs cancelled Mr Pingol’s Subclass 457 (Temporary Work (Skilled)) visa under s 116 of the Migration Act 1958 (Cth) (the Act). The Minister may cancel a visa pursuant to s.116 of the Act if they are satisfied that certain grounds specified in that provision are made out.

7. The delegate cancelled Mr Pingol’s visa under s 116(1)(b) on the basis that he had not complied with the conditions of his visa. The Tribunal must decide whether that ground for cancellation is made out, and if so, whether, having regard to all the relevant circumstances (that may include matters of government policy), the visa should be cancelled.

   Does the ground for cancellation exist?

8. 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) attached to Mr Pingol’s visa. This multi-pronged condition requires, inter alia, that Mr Pingol only work in a position in the business of his sponsor or an associated entity (condition 8107(3)(a)(ii)(B), and that if he ceases employment, the period during which he ceases employment must not exceed 60 consecutive days (condition 8107(3)(b)).

9. Mr Pingol’s nominated skilled occupation is Panelbeater, ANZSCO 324111, and he is based in Melbourne.  He admits that he resigned from employment with his sponsor, AMA Group Solutions Pty Ltd, on 9 December 2020.  The delegate found that his employment ceased on 31 December 2020, and this finding is not disputed. 

10. At the hearing, Mr Pingol explained that he understood he could not cease his employment with his most recently approved sponsor for more than 60 consecutive days, but found himself in circumstances owing to the Covid-19 pandemic and repeated lockdowns in Melbourne that, in his view, required him to resign from the position with AMA Group Solutions Pty Ltd and seek new employment.  The applicant gave evidence that he was so distressed by the impact of the Covid-19 pandemic on his potential for obtaining work to ensure he could support his family in the Philippines that, at the relevant time, he did not turn his mind to his visa conditions. He was simply focused on making sure he could earn an adequate living.

11. Mr Pingol accepts that the ground for cancellation exists. Based on all the documentary and oral evidence available to it, the Tribunal finds that the applicant breached condition 8107(3)(b) of his visa by ceasing employment for more than 60 continuous days.

12. 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

13. The Minister’s power to cancel a visa pursuant to s.116(1) of the Act is discretionary. Therefore, the Tribunal must now decide whether or not to exercise its discretion to cancel Mr Pingol’s visa. Noting that there are no prescribed considerations in either the Act or the Regulations, the Tribunal has weighed up all the evidence before it from Mr Pingol and his witnesses against the matters set out in the Department’s Procedures Advice Manual (PAM3) regarding the exercise of visa cancellation powers.  To make its decision, the Tribunal has asked itself the following questions:

    a)What was the purpose of Mr Pingol’s travel to and stay in Australia?

    b)To what extent has he complied with his visa conditions?

    c)What degree of hardship may be caused if his visa is cancelled?

    d)In what circumstances did the ground for cancellation arise?

    e)How has Mr Pingol behaved towards the Department in the past? How has he behaved during this process?

    f)Would any other visas be cancelled as a consequence of cancelling Mr Pingol’s visa?

    g)What are the legal consequences of cancelling Mr Pingol’s visa?

    h)Does Australia have any international obligations that may arise if Mr Pingol’s visa was cancelled?

14. 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 PAM3 ‘General visa cancellation powers’. In reaching its findings, the Tribunal has considered the applicant’s evidence in relation to the matters set out below.

    What was the purpose of Mr Pingol’s travel to and stay in Australia

15. Mr Pingol’s Subclass 457 visa was granted for the purpose of him working in his nominated occupation of Panelbeater.  The Subclass 457 visa scheme requires visa holders to work for an employer approved by the Department to sponsor them in their nominated skilled occupation.  Mr Pingol was most recently nominated to work in his nominated occupation of Panelbeater by AMA Group Solutions Pty Ltd.

16. AMA Group Solutions Pty Ltd employed Mr Pingol from the time his visa was granted until his resignation on 9 December 2020.  AMA Group Solutions notified the Department when Mr Pingol’s employment ceased.  The evidence before the Tribunal confirms that the nomination application made by the applicant’s next employer, Supreme Panel Service Pty Ltd, was refused by the Department on 25 May 2021. 

17. The applicant’s current employer, Navarone Panels Pty Ltd t/a Navarone Accident and Vehicle Repair Pty Ltd, seeks to sponsor the applicant for a temporary work visa, but Mr Theo Economou, representing that organisation at the hearing, stated they were not able to lodge an application in a timely fashion due to the protracted Covid-19 pandemic lockdowns in Melbourne during 2021.

18. There is no evidence that the applicant has an approved nomination supporting his Subclass 457 visa that was granted to enable him to work as a Panelbeater in Australia.  However, the evidence is that he has always worked as a Panelbeater in Melbourne (albeit for 3 separate entities where only 1 was an approved sponsor), and that he continues to work as a Panelbeater with his current employer, having been granted a bridging visa with work rights after this visa was cancelled.

19. Given the applicant came to Australia for the purpose of working as a Panelbeater, which he has done and continues to do while he stays in Australia, and noting the known skills shortage in the automotive repair industry in Australia at present, the Tribunal gives this consideration some weight against cancelling this visa.

    To what extent has Mr Pingol complied with his visa conditions?

20. Mr Pingol’s Subclass 457 came with 2 conditions: condition 8107, regarding his work status, and condition 8501, requiring him to maintain adequate arrangements for health insurance while he is in Australia.

21. There is no evidence before the Tribunal to suggest that Mr Pingol did not comply with condition 8501 at any time whilst he held his Subclass 457 visa.

22. Mr Pingol accepts that he did breach condition 8107(3)(b) of his Subclass 457 visa by choosing to resign from his employment with his sponsor and to take up an opportunity with another employer.  The Tribunal accepts Mr Pingol’s evidence that he believed his new employer, Supreme Panel Service Pty Ltd, would obtain sponsorship approval.  However, based on his evidence at the hearing, it is clear to the Tribunal that Mr Pingol did not have regard to the potential for him to fall foul of condition 8107(3)(b) whilst awaiting his new employer to secure approval to sponsor him.

23. The application by Supreme Panel Service Pty Ltd to sponsor Mr Pingol to work as a panelbeater was refused on 21 May 2021.  There is no approved nomination by any company to sponsor Mr Pingol as a panelbeater at present.  Mr Pingol has not been working for an approved sponsor since he left AMA Group Solutions Pty Ltd in December 2020.  This represents a significant period of non-compliance with condition 8107(3)(b), and as such, the Tribunal gives this consideration some weight in favour of cancelling the visa.

    What degree of hardship may be caused if Mr Pingol’s visa is cancelled?

24. The Tribunal has considered the potential for financial, psychological, emotional, and other hardships that Mr Pingol may suffer if his visa is cancelled.  Mr Pingol gave evidence at the hearing that he is reluctant to return to the Philippines during the Covid-19 pandemic.  He told the Tribunal that his family relies on his Australian income to support the education of his two sons in a private school.  He noted that his wife’s wage as a teacher in the Philippines barely covers the cost of food for his family.  Mr Pingol told the Tribunal that he likely would be able to obtain work if he returned to the Philippines, but that it would not be as lucrative as his Australian income.  He had worked in the Philippines after returning there from a period of working as a panelbeater in Saudi Arabia, and he was keen to take up the opportunity to work in Australia when it was presented to him.

25. It is clear to the Tribunal that Mr Pingol is hard working and committed to providing his family the best quality of life that he can.  He is the family’s main income earner.  He currently holds a Bridging E visa with work rights granted on the basis of his financial hardship if he is unable to work.  That visa does not limit Mr Pingol to work as a panelbeater, though the evidence before the Tribunal suggests he is working in that occupation with his current employer. 

26. The Tribunal considers it likely that cancellation of Mr Pingol’s Subclass 457 visa will lead to financial hardship for him and for his family in the Philippines.  The Tribunal is also conscious that Mr Pingol may suffer some psychological and/or emotional hardship as a result of having his visa cancelled in circumstances where he may have been able to take additional steps to mitigate the impact of his decisions and ensure he did not breach his visa conditions.

27. Therefore, I give this consideration a little weight against cancelling the visa.

    In what circumstances did the ground for cancellation arise?

28. Mr Pingol left his employment with his sponsor on 31 December 2020.  He has not secured a new nomination nor has he been granted a new visa.  More than 60 consecutive days has elapsed since he last worked for his nominating employer.

29. At the hearing, Mr Pingol told the Tribunal that he understood he was not to work for employers other than his sponsor and that he could not have a gap in employment of 60 consecutive days.  He told the Tribunal that he did not notify the Department about the changes in his employment circumstances because he did not know how to contact the Department.  He told the Tribunal that he had contacted his agent, and his agent advised him that he was not able to work for another employer without the appropriate sponsorship in place.

30. Mr Pingol’s evidence, both written statements and spoken during the hearing, confirms he believed his new employer, Supreme Panel Service Pty Ltd, was securing approval to sponsor him on his Subclass 457 visa.  There is evidence before the Tribunal confirming that he did take steps to follow up with the employer regarding the status of the nomination application, and evidence that the he was assured on multiple occasions that a lawyer was attending to the necessary paperwork.

31. Mr Pingol’s evidence is that the first time he became aware that Supreme Panel Service Pty Ltd had not obtained approval to sponsor him on his Subclass 457 visa was 11 May 2021, and that he immediately ceased his employment with them as he did not wish to take any risks regarding his visa status.  The Tribunal accepts Mr Pingol’s evidence and claims that he did have good intentions and did not set out to knowingly breach his visa conditions or work without the appropriate sponsorship in place.

32. The Tribunal also gives weight to the context of the Covid-19 pandemic as a key reason that Mr Pingol resigned from employment with his approved sponsor and commenced a new role.  Mr Pingol wrote that he was unable to sustain his finances on the small financial support offered to him by AMA Group Solutions when he was stood down during the lockdowns in Melbourne in 2020.  As a temporary visa holder, he was not entitled to any government payments such as JobKeeper or JobSeeker.  During his employment with Supreme Panel Service Pty Ltd he was able to work extra hours for cash payment, thereby providing his family with extra money from time to time.

33. The Covid-19 pandemic and repeated extended periods of lockdown in Victoria were beyond Mr Pingol’s control.  However, the Tribunal cannot disregard the fact that his approved sponsor, AMA Group Solutions, had actively engaged with Mr Pingol to provide more stable employment by relocating him to Queensland.  Mr Pingol may not have wished to relocate, and he may not wish to have incurred the expense that he may have incurred in doing so.  However, the circumstance that gave rise to the breach of his visa condition eventuated because he made a conscious decision to secure his financial future by taking up a new role with another organisation and a conscious decision to resign from employment, voluntarily, with his approved sponsor.  This is not a situation where his sponsor had its sponsorship approval cancelled, was barred from sponsoring visa holders, or where the business ceased to operate. 

34. The Tribunal notes that the delegate provided Mr Pingol with additional time to demonstrate that Navarone Panel Beating Pty Ltd had taken the steps necessary to sponsor him to work for it in his nominated occupation of Panelbeater.  There was no evidence before the delegate at the time of the primary decision to indicate that Navarone Panel Beating Pty Ltd had applied to sponsor Mr Pingol. 

35. At the Tribunal hearing, Mr Theo Economou appeared to explain the difficulties faced by Navarone Panel Beating Pty Ltd in making the nomination application due to the repeated lockdown periods in Melbourne throughout 2021.  The Tribunal accepts that it was difficult for all Melbourne-based businesses to operate at optimal levels during 2021, and gives the benefit of the doubt to Mr Pingol and Mr Economou that there is a genuine intent for Navarone Panel Beating Pty Ltd or one of its related entities to sponsor and employ Mr Pingol as a panelbeater.

36. Overall, while it is clear that Mr Pingol acted in good faith obtaining employment with new employers who presented as willing to make the necessary applications to sponsor him, it is also clear that he was wifully blind to the requirements under condition 8107(3)(b) of his visa, and that his decision to resign from AMA Group Solutions in circumstances where he could have resumed stable full time employment is a decision he is responsible for.  The written statement Mr Pingol provided the Department, later provided to the Tribunal, as well as his oral evidence at the hearing, make plain that he knew he could not continue working without an approved nomination supporting his visa.  Therefore, the Tribunal gives this consideration some weight in favour of cancelling the visa.

    How has Mr Pingol behaved towards the Department in the past? How has he behaved during this process?

37. Mr Pingol has cooperated with the Department and with the Tribunal at review.  He has given honest answers to all questions the Tribunal has asked him.  He has agreed that he breached his visa condition and has behaved respectfully in making his submissions as to why he believes his visa should not be cancelled.  For these reasons, the Tribunal gives this consideration a little weight against cancelling the visa.

    Would any other visas be cancelled as a consequence of cancelling Mr Pingol’s visa?

38. Mr Pingol does not have any dependents listed on his Subclass 457 visa. His evidence is that his wife and children continue to reside in the Philippines. There would be no consequential cancellations under s.140 of the Act, and so the Tribunal gives this consideration a little weight in favour of cancelling the visa.

    What are the legal consequences of cancelling Mr Pingol’s visa?

39. Mr Pingol’s Subclass 457 visa would have ceased naturally on 22 February 2022. A decision to cancel his visa means he may become an unlawful non-citizen who may be liable for detention under s.189 of the Act and removal from Australia under s.198 of the Act. He would also be affected by s.48 of the Act, which would severely limit his options to apply for further visas while in Australia. The Tribunal therefore gives this consideration a little weight against cancelling the visa.

    Does Australia have any international obligations that may arise if Mr Pingol’s visa was cancelled?

1. Mr Pingol has not made any claims that he fears for his safety or that of his family if his visa is cancelled and he returns to the Philippines.  There is no evidence before the Tribunal to suggest that any of Australia’s international obligations would be engaged as a result of Mr Pingol’s Subclass 457 visa being cancelled.  The Tribunal gives this consideration a little weight in favour of cancelling the visa.

   Are there any other relevant matters the Tribunal should consider?

2. Mr Pingol has not identified any other matters of relevance for the Tribunal to consider.  His wife and children reside in the Philippines and their status is not impacted by the Tribunal’s decision in this case.  The Tribunal is satisfied that no other relevant matters warrant consideration at the time of the Tribunal’s decision.

   Conclusion

3. It is clear to the Tribunal that Mr Pingol is a hard-working panelbeater who contributes to the Australian economy during difficult times in the Covid-19 pandemic climate.  However, it is also clear to the Tribunal that Mr Pingol was an active participant in at least some of the circumstances giving rise to the breach of his visa condition that made cancellation of his visa a real possibility.

4. Considering the circumstances as a whole, the Tribunal concludes that the reasons in favour of cancelling the visa outweigh the reasons against cancelling it.  Therefore, the Tribunal is satisfied that the visa should be cancelled.

   DECISION

5. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

   Mary Sheargold
   Member