Roperos (Migration)

[2021] AATA 5366

Roperos (Migration) [2021] AATA 5366 (17 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Michaelangelo Caminos Roperos
Mrs Maribel Bacaran Roperos
Master Franz John Bacaran Roperos
Master Franz Joseph Bacaran Roperos
Master Franz Marchael Baracan Roperos

CASE NUMBER:  1824297

HOME AFFAIRS REFERENCE(S):          BCC2018/882829

MEMBER:Sean Baker

DATE:17 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl 457.221 of Schedule 2 to the Regulations.

Statement made on 17 November 2021 at 10:07pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Welder – substantial compliance with conditions of last visa – ceased employment with sponsor – inadvertent breach – occupation in strong demand – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360

Migration Regulations 1994 (Cth), Schedule 2, cl 457.221; Schedule 8, Condition 8107

CASES
Baidakova v MIMIA [1998] FCA 1436
Jayasekara v MIMIA (2006) 156 FCR 199
Kim v Witton (1995) 59 FCR 258
MIMA v Modi (2001) 116 FCR 496
Shrestha v MIMA [2001] FCA 1578

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 August 2018 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 23 February 2018. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl 457.221 because the delegate found the first applicant (the applicant) had not substantially complied with conditions placed on the applicant’s last held substantive visa.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant complied substantially with the conditions of his last held substantive visa.

   Has the applicant complied substantially with the conditions of the last relevant visa(s)?

8. If the applicant is in Australia, cl 457.221 requires that he or she must have complied substantially with the conditions that applied to the last of any substantive visas held and to any subsequent bridging visa. Whether the applicant has complied substantially with a visa condition is a question of fact, to be determined having regard to the particular circumstances of the case: Kim v Witton (1995) 59 FCR 258 (at 271), followed in Baidakova v MIMIA [1998] FCA 1436. The circumstances considered by Sackville J to be relevant in Kim v Witton included:

   ·the nature of the breach of condition;

   ·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

   ·whether or not the applicant deliberately flouted the condition; and

   ·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

9. However, there is no rigid test, and those considerations should not be regarded as exhaustive, or elevated to the status of relevant considerations in every case: see Shrestha v MIMA [2001] FCA 1578 and MIMA v Modi (2001) 116 FCR 496. In addition, there are visa conditions to which the concept of substantial compliance has no logical application. In these cases, either the condition is satisfied or it is not: Jayasekara v MIMIA (2006) 156 FCR 199.

10. In the present case, the applicant was granted a Temporary Work (Skilled)(subclass 457) visa on 12 February 2015 valid until 12 February 2019. This visa was subject to Condition 8107.

11. Relevant to this case, this condition requires the holder:

    ·     to work only in the occupation listed in the most recently approved nomination for the holder;

    ·     to work only in a position in the sponsor’s business, or an associated entity, unless the nominated occupation is specified in a written instrument, or the holder is fulfilling a legal requirement to give notice;

    ·     to commence work within 90 days after arrival or visa grant;

    ·     not to cease employment for more than 60 consecutive days;

    ·     not to engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted; and

    ·     meet relevant licence, registration or membership requirements.

12. The information before me, which I accept, is that the applicant had his employment with his previous sponsor, Austal Ships Pty Ltd terminated on 25 August 2016. The applicant then actively sought further work in the occupation listed in the most recently approved nomination. He was then employed by MEI Group Pty Ltd trading as Mammoth Equipment and Exhausts as a Welder in January 2017.

13. A Notice of Intention to Consider Cancellation was  issued by the Department on 3 May 2017 and the applicant provided a brief response on 4 May 2017 confirming sponsorship under Mammoth Equipment and Exhausts. According to submissions, at this time, and hearing nothing further form the Department, the applicant believed his prompt and honest email reply to the Notice would be sufficient.

14. In late 2017, the applicant received an employment offer from Conquest Group for a Welder position, which he accepted, and which resulted in the lodgement of a new nomination and this application.

15. On 13 March 2018, the applicant’s previous Temporary Business Entry (class UC) Temporary Work (Skilled)(subclass 457) visa was cancelled for breach of condition 8107(3)(b).

16. The submission concedes that the applicant failed to secure a new sponsor within 90 days of ceasing employment with AUSTAL Ships Pty Ltd, but argues that this specific requirement is a small part of the broader 8107 condition, which, when coupled with the 100% compliance with condition 8501, should demonstrate that the applicant substantially complied with the visa conditions.

17. The submission goes on to argue that the failure of the applicant to work only in the sponsor’s business and not to cease employment for longer than the time specified in condition 8107(3)(b) was not due to malicious or intentional non-compliance on the part of the applicant. The submission argues that the applicant complied with other conditions on that visa, and has complied with all conditions on his subsequent bridging visa.

18. The submission goes on to note that the applicant is working in a regional area, and that there is a critical skill shortage for welders both specifically in the location he works, as well as more generally in Australia. The submission notes the included letters of support from local members of Parliament (WA) and local councils.

19. I have carefully considered the particular circumstances of the case. It has been conceded that the applicant breached condition 8107(3)(b) on his last held substantive visa.

20. However, when considering the circumstances, I have considered that the nature of the breach in this case appears inadvertent rather than deliberate, and to be on the lower end of seriousness in that it was limited in time and duration. The applicant sought, reasonably promptly to once more be employed in the occupation for which he had been granted the visa and to arrange sponsorship and nomination. The breach, while significant, must also be considered in light of the purpose for which the 457 visa is granted, which is to allow for the temporary entry of skilled workers.[1] Inherent in this is the lack of skilled workers in particular fields. I accept on the information before me that welders are both highly skilled, and in particularly strong demand in Australia generally and in the regional area where the applicant is working specifically. I accept the information before me supports a conclusion that the applicant did not deliberately flout the condition, rather through losing his position and taking some time to find another one this can be seen as inadvertence on the part of the applicant at worst. I am also willing to accept that, having communicated with the Department promptly in relation to the NOICC, the applicant failed to appreciate that he had been in breach.

    [1] Explanatory Statement to SLI 2012, No 238.

21. I have also given weight in my considerations to the letters of support from the local members of Parliament and members of the local council and community. I have also had regard to the information which indicates that welders are on the skills priority list and there is significant demand.

22. The applicant has been employed by his current sponsor for a considerable period and, it appears, if a valued and valuable member of their workforce, performing work which is skilled and in high demand. To refuse the visa would, I accept, cause significant hardship to the applicant and his family and to his employer.

23. For these reasons, the Tribunal finds that the applicant has complied substantially with the applicable visa conditions. As such, the applicant satisfies cl 457.221.

24. If the primary applicant satisfies the remaining criteria for the grant of the visa, the secondary applicants may be entitled to be granted visas on the basis of their membership of his family unit.

25. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

26. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.221 of Schedule 2 to the Regulations.

    Sean Baker
    Member

    
    

    8107(1)  If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a)cease to be employed by the employer in relation to which the visa was granted; or

    (b)work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    (c)engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

    (2) If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)cease to undertake the activity in relation to which the visa was granted; or

    (b)engage in an activity inconsistent with the activity in relation to which the visa was granted; or

    (c) engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

    (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):

    (a)the holder:

    (i)must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)unless the circumstances in subclause (3A) apply:

    (A)must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

    (C)if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor; and

    (aa)subject to paragraph (c), the holder must:

    (i)if the holder was outside Australia when the visa was granted—commence work within 90 days after the holder’s arrival in Australia; and

    (ii)if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted; and

    (b) if the holder ceases employment—the period during which the holder ceases employment must not exceed 60 consecutive days; and

    (c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder:

    (i)must hold the licence, registration or membership while the holder is performing the occupation; and

    (ii)if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and

    (iii) if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and

    (iv)must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and

    (v)must comply with each condition or requirement to which the licence, registration or membership is subject; and

    (vi)must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and

    (vii)must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.

    (3A)For subparagraph (3)(a)(ii), the circumstances are that:

    (a) the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii) as in force before 18 March 2018; or

    (b) the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

    …