Remollo (Migration)

[2020] AATA 18

Remollo (Migration) [2020] AATA 18 (2 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marte Remollo

CASE NUMBER:  1927225

HOME AFFAIRS REFERENCE(S):          BCC2019/3105502

MEMBER:Stavros Georgiadis

DATE:2 January 2020

PLACE OF DECISION:  Adelaide

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 2 January 2020 at 5:10pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment over 60 days – decline of business – voluntarily resigned – no approved nomination – current nomination on appeal – supporting parents – significant hardship – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), cl 457.223, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 September 2019 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 had not complied with a condition of his Subclass 457 visa and the delegate considered the visa should be cancelled, having regard to all the circumstances.

3. The applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from a current employer, Mr Keith Fulton, HR Manager from Lai Industries Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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

7. 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 is attached to the applicant’s visa. This condition requires that the applicant’s last substantive visa held was a Subclass 457 visa; the applicant is working for a standard business sponsor at the time of approval as a standard business sponsor; and amongst other things, “must work only in the occupation listed in the most recently approved nomination for the holder, cl.8107(3)(a)(i). Further, cl.8107(3)(b) provides that “If the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days; ...”

8. The delegate made the decision on the basis of a breach under cl.8107. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8107(3)(b) of the visa as he was found to have ceased employment with his sponsor employer of the most recently approved nomination for the visa, Collier and Miller Pty Ltd, for more than 60 consecutive days. The nomination was approved for the nominated occupation of Welder (First Class) (ANZSCO 322313) in respect of the applicant.

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. The Tribunal finds that the applicant’s last substantive visa held was a (Class UC) Subclass 457 visa granted on 16 January 2017 and valid for 4 years. The applicant commenced working for his employer sponsor, Collier and Miller Pty Ltd on a full time basis as a Welder (First Class) from 13 February 2017. The employer is a metal fabrication engineering company specialising in agricultural equipment and is located in Griffiths NSW. The evidence before the Tribunal is that the applicant resigned from Collier and Miller Pty Ltd on 30 November 2018 being his last day at work there, after 4 workers were offered redundancy packages by the employer, and 3 others resigned. The applicant explained at the hearing that NSW was gripped by drought at that time and there had been a decline in business at the company given the company’s specialisation in agricultural equipment.  He explained further that he had requested more hours of work, such as overtime, to keep his earnings at a suitable level but this was not forthcoming due to the downturn.

11. Following the resignation, the applicant sought and was offered work with Samaras Structural Engineers in South Australia. However, a nomination application relating to him for work as a Welder was unsuccessful (refused on 3 December 2018) and the applicant never commenced employment with that company. The employer did not appeal that decision and the applicant continued to look elsewhere for suitable work as a Welder.

12. In March 2019 the applicant’s current employer, Lai Industries Pty Ltd agreed to take him on as a Welder (First Class) and applied for a nomination for that occupation in respect of the applicant. The company employs 270 staff in South Australia with operations in most Australian states. The employer’s evidence at hearing was that the company employs about 30 welders and requires high level welding skills and competency suitable for structural engineering welding and such skills akin to boiler-making.  The employer explained to the Tribunal that the applicant has attained such high level skills which are hard to come by in South Australia and as such, is a valued employee.  The employer’s evidence is that the applicant is also engaged in training of apprentices for the company in welding skills and that this too is much valued and needed in the company. 

13. On 20 March 2019, the nomination application by Lai Industries Pty Ltd was refused by the Department.  An appeal to challenge this refusal was lodged by the company on 4 April 2019 and is pending a separate review before the Tribunal. In the meantime, the applicant continues to work in the nominated occupation of Welder (First Class) as he has approved work rights attached to his WE-050 Bridging visa.

14. The Tribunal finds that the last substantive visa held by the applicant was a Subclass 457 visa granted on the basis that he met the requirements of subclause 457.223(2) or (4) and was working for a standard business sponsor at the material time of approval.

15. The first issue for the Tribunal to determine is whether the applicant has complied with condition 8107 of his visa. The oral evidence provided at the hearing is consistent with the delegate’s observations that the applicant resigned from Collier and Miller Pty Ltd, ceasing employment with the sponsor with effect from 30 November 2018. The applicant concedes that he has not returned to any employment under an approved nomination and therefore, this has continued in excess of 60 consecutive days.

16. Based on the evidence discussed above, the Tribunal finds that the period during which the applicant ceased employment has exceed 60 consecutive days, which is a breach of condition 8107, specifically 8107(3)(b) attached to his Subclass 457 visa.

17. 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

18. 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’.

19. A Notice to Consider Cancellation (NOICC) of the visa was issued to the applicant dated 22 August 2019.  In his response to the NOICC the applicant provided on 27 August 2019, various documents, including (inter alia) the following outline of arguments why his visa should not be cancelled: 

    …“We are writing in response to the Notice of intention to consider cancellation of    Temporary Work (Skilled) Subclass 457 visa received on 22 August 2019.

    Background

    Marte Remollo is a Filipino Citizen who currently holds Subclass 457 Visa. …

    Marte Remollo was nominated by Collier & Miller Pty Ltd as a Welder (First Class) under Subclass 457. His nomination was approved on 16 January 2017 and was employed until 30thNovember 2018. Marte decided to cease his employment with Collier & Miller Pty Ltd and moved to Adelaide, South Australia on 03 December 2018.

    Marte Remollo was aware of his visa condition 8107 where he is required to find another employer with 60 consecutive days. Therefore, before his resignation, he has found another employer to sponsor him – Samaras Structural Engineer.
    Samaras Structural Engineer submitted a nomination application submitted on 22 November 2018, TRN - EGOK8IJ6CH. The application was made within the 60 consecutive days period.

    Through email conversation and phone calls, Marte Remollo had been following-up with Angie Meyer, Return to Work Officer of Samaras Structural Engineer, about the status of the Nomination Application and advised her about his 8107 visa condition.
    Samaras Structural Engineer was notified that the Nomination Application was refused on the 03 December 2018. Unfortunately for Marte Remollo, he was only notified of this on the 02 January 2019 which is almost a month from when Samaras received the notification refusal. Samaras Structural Engineers said the Nomination Application was refused on a “technicality” and they will re-lodge the nomination application. On the 07 January 2019, he followed-up when the Nomination Application will be re-lodge. We have attached the following document for your reference:

    1. Correspondence from Samaras and Marte
    2. Acknowledgment of Nomination Application Received
    3. Notice Refusal of Nom App Samaras
    4. Notice of Refusal Decision Samaras

    Marte Remollo did not want to breach his visa condition. Therefore, he looked for another employer and found LAI Industries Pty Ltd.

    LAI Industries Pty Ltd hired Marte Remollo as a Welder (First Class). They have submitted the Nomination Application for Marte Remollo - TRN EGOLETNYNJ - on the 23 February 2019 for Temporary Skills Shortage (Subclass 482) visa. The Nomination Application was again refused on 20 March 2019 by the Department.
    Although the Nomination Application has been refused, it is not yet finalised. It is currently on appeal with the Administrative Appeals Tribunal (AAT) - Case Number 1908193. We are still waiting for the decision on this matter. We have attached the following information for your reference:

    1. IMMI Acknowledgement of Application Received
    2. IMMI Refusal of Nomination Notification and Decision Record
    3. Submission letter to AAT - copy
    4. AAT Acknowledgement of Application
    5. New Employment Contract
    6. Form 956 for Marte Remollo completed and signed – Keith
    7. Form 956 AAT – Keith
    8. Form 956 NOICC completed and signed – Marte

    He did not notify the Department immediately because he was hoping to get another employer within the 60 consecutive days.

    Other circumstances

    Marte Remollo is the only child of his aged parents. He is the “sole breadwinner” of the family. Both his father and mother are 79 years old. His parents cannot work due to old age. Being the only child, he provides financial support to them to attend to all their needs. Also, he currently has a car loan to pay. We have attached the following information for your reference:

    1. Remittance advice from RIA Money Transfer (3 parts)
    2. Car Loan Policy
    3. Car Registration
    4. Personal Letter to Immigration about NOICC

    Losing his employment will surely cause hardship, not only to him but to his family as well.

    The purpose of his travel and stay in Australia is for work. He diligently looked for an employer within the 60 consecutive days period to avoid breaching his visa condition. He has now found LAI Industries Pty Ltd as his employer. The Nomination Application is currently being reviewed by the AAT. During his unemployment period, he has not rely on Australian Government to fund his expenses and stay. He is the “sole breadwinner” of his family who relies on him for financial support. …”

20. The applicant submits, in conclusion, that he diligently looked for an employer and that he tried his best to comply with his visa condition. He submits that he has not received any monetary benefit from the Australian government during his unemployment. He submits that cancelling his visa would cause hardship to him and his aged parents because he is the “sole provider” for his family.

21. In considering whether to cancel the visa, the Tribunal has taken into account the information received from the applicant, including that in response to the NOICC above, relevant legislation under the Act and Regulations and the PAM3 guidelines set out in Procedural Instruction General visa cancellation powers (s109, s116, s128, s134B and s140) regarding cancellation of the visa.

    The purpose of the visa holder’s travel to and stay in Australia

22. The Tribunal has considered the purpose of the applicant’s travel and stay in Australia is to fill the skill shortage for in demand positions including that of Welder (First Class). The applicant was granted the Temporary Work (Skilled) (subclass 457) visa on 18 January 2017 for 4 years for the purpose of employment with an approved sponsor in that skilled occupation. As found above, he ceased employment with the sponsor on 30 November 2018 and as the applicant has not had a nomination application approved by the Department to work for another sponsor in a skilled occupation exceeding 60 days, Mr Remollo is in breach of condition 8107.

23. The Tribunal places some weight on the fact that the applicant secured and stayed in the nominated skilled occupation of Welder (First Class) until his employment with the first sponsor employer was discontinued, being the specific purpose of the applicant’s travel to and stay in Australia.

24. The Tribunal is cognisant of the circumstances that the applicant was granted the visa for the purpose of being able to temporarily fill a skill shortage in this area and to work in Australia for an approved sponsor in a skilled occupation for which he was specifically nominated and which could not be filled from within the Australian workforce.

25. The applicable visa conditions allow the applicant 60 days from ceasing employment with the sponsor in which to pursue and secure a new sponsor or to apply for another visa in line with a valid purpose for wishing to remain in Australia, or alternatively, to arrange to depart Australia. The applicant has had two nominations lodged by employers since leaving Collier & Miller but these have been refused.  The cessation of employment with his sponsor means that his ongoing stay with no sponsor is not in line with the purpose of the visa.  During the 60 day period a person continues to hold the visa for an extended period to continue searching for another sponsor, or alternatively to await the outcome of an appeal by a potential sponsor to this Tribunal.

26. These circumstances weigh somewhat in favour of cancelling the visa.

    The extent of compliance with conditions subject to which the visa was granted

27. The applicant’s subclass 457 visa was granted subject to condition 8107. Aside from the present circumstances discussed where condition 8107 was contravened, there is no suggestion of any other non-compliance by the applicant with previous visa conditions, noting he has also held several Bridging visas pending the outcome of this review. The Tribunal notes the delegate’s acknowledgement that ‘apart from 238 days non-compliance with condition 8107’ there is no information to suggest the applicant has been non-compliant with any other condition attached to his visas in the past.

28. The Tribunal acknowledges and takes into consideration that it has been in excess of the 60 continuous day period allowed under condition 8107(3)(b) for a visa holder to secure a nomination with another approved sponsor. The Tribunal notes however, that the non-compliance with the visa condition following the discontinuance of the applicant’s employment arises from factors outside of the applicant’s control - both in respect of nomination by Samaras Structural Engineers and LAI Industries Pty Ltd due to the respective sponsors’ actions or shortcomings for an approved nomination.

29. Therefore, I give the applicant’s aforementioned compliance with visa conditions in the past some weight in favour of not cancelling the visa.

    The degree of hardship that may be caused to the applicant or his family members

30. The applicant states his elderly parents rely solely on him for financial support 'and it would be very difficult for me and my parents if I lose my job.' The Tribunal notes the car loan that the applicant is presently repaying.  The Tribunal acknowledges that the consequences of cancellation might cause a degree of hardship for the applicant and his family if he is not able to earn income in Australia.  In particular, the Tribunal notes the advanced age of his parents of 79 or more years, and the evidence the applicant has provided funds to them in the past from his earnings from work in Australia to support them in their retirement. The applicant has described his parents as “comfortable” but that they rely on him for “the extras”. The applicant is not partnered and has no children or other full siblings. He has two half-brothers, and a half-sister who helps to look after his parents in Cagayan-De-Oro in the Philippines where they live.

31. The Tribunal accepts that in these circumstances, there will be a significant degree of hardship that will result to the applicant and his family members discussed above, should the visa be cancelled. The Tribunal recognises also that the applicant awaits the outcome of a review of a nomination refusal regarding a further sponsor, Lai Industries Pty Ltd, to work in a skilled occupation (presently pending) and that this delay and angst may further result in hardship. The Tribunal considers that visa cancellation may also cause the applicant emotional hardship noting he has spent almost 3 years in Australia to date apart from a short absence of one month in August / September 2018. Therefore, the Tribunal gives the hardship factor some weight in favour of not cancelling the visa.

    The circumstances in which the ground for cancellation arose

32. The circumstances for which the ground for cancellation arose, of no sponsored employment in excess of 60 days after the applicant discontinued his employment with his then approved sponsor, have already been discussed. The applicant acknowledges that his employment with the relevant sponsor ended by his own discontinuance and that he continues to be without any sponsored employment. The Tribunal notes, in particular, that the discontinuance / resignation took place prior to any successful nomination by Samaras Structural Engineers being finalised, and this weighs somewhat against the applicant.

33. On the other hand, the Tribunal accepts that the refusal of the nomination by Samaras Structural Engineers was beyond the visa holder’s direct control - as was the downturn in work at Collier & Miller Pty Ltd which led to the discontinuance. The applicant’s continued action to search for a new sponsor in the same nominated occupation of Welder (First Class), weighs in favour of not cancelling the visa. The applicant’s evidence is consistent with Departmental records which indicate no new nomination for sponsorship has been approved in regard to him - although the application by Lai Industries Pty Ltd remains pending.

    The past and present behaviour towards the Department

1. The Tribunal accepts the applicant’s submission that aside from the aforementioned breach with condition 8107, he has otherwise behaved appropriately towards the Department. 

2. The Tribunal notes that the applicant responded in a timely manner when required, such as the NOICC response. As the delegate observed: “There is no adverse information before me regarding the applicant’s behaviour toward the Department. I give this consideration some weight against cancelling the visa.”

3. The Tribunal also considers this weighs against cancellation of the visa.

   Whether there are persons in Australia whose visas would, or may, be cancelled under s140

4. According to departmental records no other persons within or outside Australia hold a visa because the applicant holds the visa.  The applicant told the Tribunal that he is not partnered and does not have any children or other dependants or close relatives in Australia.

5. The Tribunal accepts that the circumstances of this case are such that no other person’s visa would be consequentially cancelled under s140 of the Act.

6. This weighs in favour of cancelling the visa.

   Legal consequences of a decision to cancel the visa

7. In circumstances where the visa is cancelled, the applicant will no longer have suitable visa status to allow him to remain in Australia. He will thus become an unlawful non-citizen liable for detention under s.189 of the Act and removal under s.198 of the Act.

8. However, detention or forced removal may be avoided by agreeing to depart. As a citizen of the Philippines it would be open to the applicant to return to that country to avoid being placed in immigration detention. The Tribunal therefore, does not consider it likely for the applicant to be detained indefinitely. The applicant would also be subject to s.48 of the Act, which would serve to limit his options should he wish to apply in future for further visas while in Australia. He would be eligible to apply for a Bridging Visa to regularise his visa status.

9. The Tribunal has also considered that the applicant might not be permitted to work in Australia following visa cancellation.

10. The Tribunal gives this consideration little weight against cancelling the visa.

11. Australia’s international obligations

12. The Tribunal has considered whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. The applicant has been able to freely travel to and from Australia and the Philippines in the recent past without hindrance such as the occasion in August / September 2018.

13. There is no information before the Tribunal to suggest that the applicant has dependants in Australia. There is also nothing before the Tribunal to suggest that cancelling the visa would lead to a breach of Australia’s non-refoulement obligations i.e. relating to Protection or Complementary Protection.  Accordingly, for this consideration, the Tribunal gives no weight for or against cancelling the visa.

    Any other relevant matters

14. There are no other relevant matters evident.

    CONCLUSION

15. After considering all the available information, the Tribunal is satisfied that the grounds for not cancelling the visa outweigh the reasons to cancel the visa.

16. Considering the circumstances as a whole, the Tribunal concludes, on balance, that the visa should not be cancelled.

    DECISION

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

    Stavros Georgiadis
    Member