Pizanias (Migration)

[2018] AATA 390

Pizanias (Migration) [2018] AATA 390 (13 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Makarios Pizanias

CASE NUMBER:  1710212

DIBP REFERENCE(S):  BCC2017/561240

MEMBER:R. Skaros

DATE:13 February 2018

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 13 February 2018 at 3:40pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Requirement for period of unemployment to not exceed 90 days – Period of unemployment exceeded 90 days – Consideration of discretion – Reasons for delay in seeking employment - Original employment terminated – Original sponsor promised to reemploy – Reemployment not offered – Financial hardship

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Condition 8107(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 April 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant was granted the Subclass 457 visa on 15 June 2015 on the basis of a nomination by E&S Hourdas Nominees Pty Ltd ATF E&S Hourdas Family Trust (the former sponsor). The visa was due to cease on 15 June 2019 however the Department received information from the former sponsor indicating that the applicant had ceased employment with them on 17 June 2016.

3. On 4 April 2017, the Department sent the applicant by registered mail a notice of intention to consider cancellation under s.116 of the Act. The applicant did not respond to the notice. The letter was returned to the Department as unclaimed.

4. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107 of his visa . The delegate concluded, after considering the circumstances at the time of decision, that the visa should be cancelled.

5. The applicant applied for review of that decision and provided a copy of the delegate’s decision record to the Tribunal.

6. The applicant appeared before the Tribunal on 13 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current sponsoring employer Mr Yiannis Prouzos of NIM Investments (NT) Pty Ltd.  The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

7. The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the hearing.

8. 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

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

10. 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?

11. 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.

12. As indicated above, the former sponsor informed the Department that the applicant’s employment ceased effective 17 June 2016. The applicant did not dispute that his employment with his former sponsor ceased at that time.

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

14. 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

15. 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’.

16. 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 Wall and Floor Tiler for his former sponsor. The Tribunal considers that the purpose for which the visa was granted ceased when the applicant ceased employment with his former sponsor.  When this was discussed with the applicant at the hearing, he indicated that he now has a new employer and that a nomination for the same occupation has been approved. He stated that he would like to remain in Australia and work for his sponsoring employer. The applicant gave evidence that it would be difficult for him and his current employer if he had to return to Greece to apply for a visa.

17. Mr Prouzos gave evidence that the applicant had come to Australia with guaranteed work but that the former sponsor’s circumstances changed and he could no longer offer the applicant work. He stated that he observed the applicant’s work and decided to offer him employment as he recognised that the applicant could add value to their building and construction business. Mr Prouzos gave evidence that his company has a number of ongoing contracts, including with the local council and government authorities, and stated that they wanted to have a stable team of trades people to carry out the work. He stated that they have advertised the position in the past but have not been able to find someone to fill the position of tiler on a full-time basis. They used to subcontract the work out however this proved to be quite costly and reduced their profitability. He stated that they offered the applicant a high salary and this was consistent with the market rate for the occupation in the Darwin area and particularly for someone like the applicant who has 37 years of experience.

18. In considering the evidence, the Tribunal is satisfied that the applicant, who is now the subject of a current approved nomination, would now be able to fulfil the purpose of the Subclass 457 visa. The Tribunal is also satisfied that the applicant’s employer has a need for the applicant to remain in Australia given the challenges they have had in finding a skilled tiler to fill the position on a full time basis. The Tribunal gives weight to these considerations in favour of not cancelling the visa.

19. The Tribunal has also considered the extent of the applicant’s compliance with visa conditions. Other than the non-compliance with condition 8107, there is no evidence before the Tribunal to indicate that the applicant has not complied with visa conditions. The Tribunal acknowledges that the applicant did not respond to the notice, and while this may suggest that the applicant has not been cooperative with the Department, the applicant explained that the hearing that he had not received the notice. The applicant did not recognise the address to which the notice was sent and indicated that it may have been provided by his former sponsor. The Tribunal accepts that the applicant did not receive the notice as letter was returned to the Department however as explained to the applicant at the hearing, he has an obligation to ensure that his contact details with the Department are up to date.

20. In relation to the circumstances in which ground of cancellation arose, the Tribunal notes that the non-compliance arose because the applicant was not able to secure another nomination within 90 days of ceasing employment with his former sponsor. The applicant explained at the hearing that his former sponsor did not have sufficient work for him and decided to move the business to Sydney. He stated that his former sponsor had indicated to him that he would offer him work once the business was established but this never eventuated. He stated that was not aware that his former employer had notified the Department that he had ceased working. He stated that the delay in him finding alternative employment was due to his former sponsor’s promise to reemploy him. He was able to secure employment with his current employer in Darwin but had to wait for the company to renew its sponsorship agreement before they could nominate him. He indicated that his current employer lodged the nomination in June 2017 and the position was approved in October 2017. 

21. The Tribunal accepts that the applicant now has an approved nomination however this was not obtained until well after the 90 day period had passed. The Tribunal is prepared to accept the applicant’s evidence that he was not aware that his employer had notified the Department that the employment had ceased and that was expecting to resume work with his former employer when the business was established in Sydney. This evidence however does not weigh in the applicant’s favour because he would have been aware that it was a condition of his visa that he work for his sponsoring employer and that he was at risk of having his visa cancelled if he did not recommence the employment within 90 days or secure another nomination. The Tribunal considers that it was within his control to seek independent advice regarding his circumstances rather than rely on his former sponsor.

22. The Tribunal has also considered whether the applicant would experience any hardship if the visa is cancelled. At the hearing the applicant stated that when he was granted the work visa he expected to be working full time for 4 years. He stated that he has no employment to return to in Greece and that given the country’s current circumstances he would have difficulty securing work if he had to go back. The applicant’s spouse and two daughters currently reside in Greece.

23. The Tribunal also notes that if the applicant’s visa is cancelled he will be affected by s.48 of the Act and will need to depart Australia to lodge an offshore 457 visa application. The Tribunal considers that the delay in the applicant having to travel offshore to apply for a visa is likely to cause financial hardship to him and his family. The Tribunal accepts that the sponsoring employer would also experience some hardship given the difficulties they have had in filling the position. These considerations weigh in favour of not cancelling the visa.

    Conclusion

24. 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

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

    R. Skaros
    Member