POWER (Migration)

[2019] AATA 977

POWER (Migration) [2019] AATA 977 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GARY POWER

CASE NUMBER:  1815676

HOME AFFAIRS REFERENCE(S):           BCC2018/295381

MEMBER:Mr S Norman

DATE:10 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 January 2019 at 4:35pm

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Temporary Work (Skilled)) visa – ceased employment with the sponsor for a period exceeding 90 days – breach of condition 8107 – no approved nominating business – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 May 2018 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act, on the basis the applicant was found to have breached condition 8107 (discussed below). 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 8 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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) of the Act. 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?

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 was attached to the applicant’s visa. Relevant to this case, condition 8107(3)(b) stated:

   8107 (3)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):

   …..

   (b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 90 consecutive day … [emphasis added]

7. The applicant’s Subclass 457 (Temporary Work (Skilled)) visa (the ‘Subclass 457 visa’) was granted on 23 April 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 24 April 2018, after referring to condition 8107(3)(b), the delegate noted the applicant’s standard business sponsor who nominated him was KNH Piping P/L (the sponsor), and the nomination was approved on 13 April 2015. Further, that the applicant was nominated for the occupation of Carpenter (ANZSCO: 331212). The applicant was then advised that information before the Department indicated he had ceased employment with his sponsor on 17 August 2017 (this was because the sponsor’s Australian Business Number was cancelled on 17 August 2017[1]). Based on this information, the applicant had not complied with condition 8107(3)(b), because it appeared he had ceased employment with the sponsor for a period exceeding 90 days. The applicant was then advised there may be grounds to cancel his visa under s.116(1)(b) of the Act.

   [1] Tribunal – folio 5 (reverse side).

8. The delegate noted that changes to condition 8107 made on 19 November 2016, reduced the time period that the holder of a Subclass 457 visa can remain in Australia after ceasing employment with their sponsor from 90 days to 60 days. This amendment applies to visas granted on or after 19 November 2016[2]. The present applicant has 90 days, as his Subclass 457 visa was granted prior to 19 November 2016.

   [2] Condition 8107(3) amended by Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016 (F2016L01696).

9. When discussed at hearing, the applicant did not dispute there were grounds to cancel his Subclass 457 visa; as he had breached condition 8107(3)(b).

10. For the above reasons, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) of the Act, exist. 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

11. 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’.

12. Regarding the purpose of the applicant’s travel to and stay in Australia, the Subclass 457 visa allows skilled workers to travel to and reside in Australia temporarily in order to work for an approved business sponsor for up to 4 years. An applicant must be sponsored by an approved business, and the business can sponsor someone for the visa if they cannot find an Australian citizen or permanent resident to work in the occupation. The applicant was granted the Subclass 457 visa for the sole purpose of engaging in employment with the sponsor in a nominated position. However, this purpose ended on or before 17 August 2017 at which time the applicant ceased employment with his sponsor. The applicant does not now have an approved nomination for the purposes of the Subclass 457 visa.

13. Further, the applicant applied for a Regional 187 permanent visa (the ‘Regional 187 visa’) on 22 December 2016 (before his Subclass 457 visa was cancelled). He said he was then granted a Bridging visa.[3] The applicant’s sponsor for the Regional 187 visa is Catalpa Resources P/L (and that application has not been finally determined). As a consequence, the Tribunal is not satisfied the applicant’s present intention for staying in Australia, is for the purposes identified for the Subclass 457 (Temporary work) visa.

    [3] The applicant’s visa history indicated he was granted a BV A on 22/12/2016; a BV B on 27/09/2017; and a BV E on 13/07/2018 (see Tribunal file – folio 62).

14. Regarding the extent of compliance with the conditions attached to the Subclass 457 visa, as noted above, the applicant ceased employment with his Subclass 457 visa sponsor on or before 17 August 2017. This was because the sponsor’s Australian Business Number was cancelled on 17 August 2017. The applicant is not presently the subject of a nomination approval related to his Subclass 457 visa, and he has not complied with condition 8107(3)(b).

15. In their response to the NOICC, the applicant had said:

    I was employed by my sponsor … since my arrival in Australia. However, I had [later] received … employment and sponsorship from a new employer. I was under the impression that whenever my employment with [the initial sponsor] ceased I was able to work for my new sponsor as they had lodged a sponsorship application for me in 2016. I did not myself read through documentation as I trusted my previous migration agent, and employer and had been under the assumption that once my new sponsorship application is lodged [I] was able to transfer to my new employer when required.

    … I had recently gathered my documentation from my previous agent … As per the documentation I was able to gather I understand now that, on 22 December 2016 my sponsor had lodged my new sponsorship application. I received a Bridging Visa on the very same day on 22 December 2016.

    I was … under the impression that I had … rights to work for my new sponsor as they had lodged the application.

16. When discussed at hearing, the Tribunal noted the Subclass 457 (Temporary Work) visa was granted in order for the applicant to work solely for a nominating employer whose nomination application had been approved. The applicant said his prior migration agent advised him (words to the effect) that once he applied for the Regional 187 visa, he did not still need to meet the criteria attached to his Subclass 457 visa. After discussing same, the current migration agent advised the Tribunal the applicant was ‘looking into’ making a complaint about this incorrect advice. That being said, the Tribunal accepts the applicant may have been misled, or at least misunderstood, whether or not he needed to continue to meet the criteria attached to his Subclass 457 visa, after having lodged the Regional 187 visa.

17. With respect to hardship the applicant or his family may suffer if the applicant’s visa is cancelled, in his response to the NOICC, the applicant said he would lose his livelihood and not be able to support his family (father, mother, 2 x brothers, 2 x sisters in Cork, Ireland – one sister is married) and his girlfriend (residing in Thailand with her family). At hearing, he said he may still provide both his family in Ireland and his girlfriend in Thailand, approximately $1,000 per month. However, the purpose of the Subclass 457 visa is to allow non-citizens to reside onshore temporarily to fill skilled shortages. Further, while the applicant’s intention is to support his family, his Subclass 457 visa did not permit him to work for a new employer, without obtaining a new nomination approval prior to commencing employment.

18. The applicant is an Irish citizen. At hearing, the Tribunal noted the European Union (EU) is an economic and political union of 26 countries which allows free movement of goods, capital, services and people between member States. Those States include Austria, Belgium, Bulgaria, Croatia, the Republic of Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and (presently) the UK.[4] Therefore, and though the Tribunal accepts the applicant believed the employment prospects and climate is better in Australia (though at hearing he did not dispute that work opportunities would exist in the EU), as an Irish citizen he could freely travel within the EU (particularly as a qualified carpenter), and obtain work opportunities and a climate that would be better than he claimed to have experienced in Cork, Ireland. The applicant said he would prefer to remain in Australia, and his friends had told him Australia was better. However, given the work options available to the applicant in the EU, the Tribunal is satisfied that once he commenced work he, his family in Ireland, and his girlfriend in Thailand, would presumably only suffer limited financial or other hardship. Furthermore, the Tribunal is also not satisfied the applicant would lose his livelihood.

    [4] CIS2F827D92026, Countries in the EU and EEA [European Union Economic Area], 12 November 2014.

19. Next, in his response to the NOICC the applicant said (words to the effect) he had not acted improperly (and the Tribunal accepts the applicant had not intentionally breached his Subclass 457 visa conditions). The applicant had also referred to his Thai girlfriend who suffered a scooter accident (in late 2015). The girlfriend had been hospitalised for some ten days prior to being released – she was said to have suffered a “horrendous gash on the back of her head and she had fractured her ribs”. The applicant had departed Australia on 22 December 2015 to visit her. He had also made several return trips to Thailand to assist her rehabilitation. He referred to having travelled to Thailand as follows:

    ·22 December 2015 – 21 January 2016

    ·21 July 2016 – 19 August 2016

    ·1 November 2016 – 10 November 2016

    ·29 September 2017 – 17 October 2017  

20. The delegate also noted the applicant’s (then) Bridging visa B would cease if the Subclass 457 visa was cancelled. He may then be granted a Bridging visa E (which had been granted on 13/07/2018), and this would provide reduced rights (though based on evidence at hearing, the Tribunal understands the applicant is still able to provide his Irish family and his Thai girlfriend with regular funds). The applicant would also not be able to depart Australia to visit his girlfriend in Thailand, and then return to Australia, while holding the Bridging visa E. However, once the applicant had re-commenced work within the EU, the Tribunal understands he should be able to then visit his Thai girlfriend (travelling on his Irish passport). The Tribunal also understood the applicant’s girlfriend had been recovered from her injuries for some time, and had returned to reside with her family (where she had previously resided) and to work on her family’s property.

21. Regarding the circumstances in which the ground for cancellation arose, the applicant said the severe injuries and hospitalisation of his girlfriend, had “put him in a bad mental state”. He said that instead of “thinking about his visa and sponsorship his brain had automatically just focused on looking after her and taking care of her hospital costs, rehabilitation and living expenses”. He also said the travelling to and from Thailand had put a “strain on him”. This was materially repeated in the applicant’s submission dated 7 November 2018 and lodged with the Tribunal.[5]

    [5] Tribunal – from folio 51.

22. At hearing, the applicant said he had not sought any medical or counselling assistance since arriving in Australia. That being said, the Tribunal accepts the applicant suffered mental stress and financial strain due to, amongst other things, the December 2015 injury to his girlfriend. However, the applicant had only ceased working for his Subclass 457 visa sponsor on 17 August 2017, and though I accept the girlfriend’s accident caused the applicant stress, the Tribunal is not satisfied this was a material reason the applicant later breached condition 8107(3)(b).

23. The Tribunal accepts the applicant lodged a Regional 187 visa application in December 2016 and may have been misled (or misunderstood) about the impact this had on his ongoing obligation to meet the conditions attached to his Subclass 457 visa. However, it remains an applicant’s responsibility to ensure they comply with the conditions attached to a visa they have been granted. Further, and as noted at hearing, the Subclass 457 visa was not granted for the purposes of allowing the applicant to remain in Australia whilst his Regional 187 visa application is being assessed (though the applicant may be allowed to remain in Australia on his BVE). Also, the Regional 187 visa may be considered whether the applicant remains in Australia or is offshore. Finally, after considering same, the Tribunal is not satisfied that waiting for the subclass 187 visa application to be processed, in this case gives rise to a compelling need for the applicant to remain in Australia.

24. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled should the applicant’s visa be cancelled.  The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

25. Next, the Tribunal accepts that if the applicant’s visa is cancelled he may (at least eventually) become an unlawful non-citizen and would be liable to detention under s.189 and removal under s.198 of the Act. However, the applicant is a citizen of Ireland, and the Tribunal has no evidence the applicant would be subject to indefinite detention. If his visa is cancelled he could also retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing; or to await the outcome of his Regional 187 visa application.

26. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia. The applicant would also be subject to PIC 4013; meaning (generally) that he cannot be granted a temporary visa for three years from the date of cancellation of his visa. However, the applicant lodged the Regional 187 (permanent) visa application prior to the Department cancelling his Subclass 457 (Temporary Work) visa and a decision to affirm the cancellation of the Subclass 457 (Temporary Work) visa would not materially impact the Regional 187 visa application process (for instance, the Tribunal understands the applicant may still be eligible for the Regional 187 even if his Subclass 457 visa is cancelled).

27. At hearing, the applicant said he had established himself in Australia. However, the now 36 year old applicant had first arrived in Australia in 2009, and for the prior 26 years, had principally resided in Cork, Ireland; and where his immediate family still reside.

28. That being said, the Tribunal accepts the applicant would prefer to remain in Australia. However, given the Tribunal is satisfied he could obtain employment commensurate with his skills in the EU, given this should not prevent him from travelling to visit his Thai girlfriend, and given it should not impact the consideration of the Regional 187 visa application, the Tribunal is satisfied the Subclass 457 visa should be cancelled.

29. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    Member