Seguia (Migration)

Seguia (Migration) [2018] AATA 5849 (28 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Honorato Jr Seguia
CASE NUMBER:  1731036
HOME AFFAIRS REFERENCE(S):           BCC2017/3001241
MEMBER:Karen Synon
DATE:28 December 2018
PLACE OF DECISION:  Melbourne
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 28 December 2018 at 11:50am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – ceased employment with the sponsor over 90 days – employment with new approved sponsor after 90 days – cancellation notice sent to old address – death of applicant’s wife – employer’s unfulfilled assurances – financial hardship – primary level defect curable by full merits review – new sponsor’s continuing need for the applicant’s skills – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 119, 140, 359
Migration Regulations 1994, Schedule 8 Condition 8107
CASES
Zubair v MIMIA [2004] 139 FCR 344
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on 30 November 2017 the basis that the applicant had not complied with Condition 8107(3)(b).
The applicant applied for review of the decision to cancel his visa on 8 December 2017 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Invitation to comment and provide information
On 3 October 2018, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:
·     The information is from the Department of Home Affairs records and relates specifically to [the applicant]:
o    You were granted a Subclass 457 visa on 11 June 2016[1]. It was originally valid to 11 June 2019 but was cancelled on 30 November 2017. Your visa was sponsored by Transcrete Pty Ltd.
[1] At the hearing it was clarified that this was an error and the visa grant date was 11 June 2015.
o    Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased to be employed by your approved sponsor, the period must not exceed 90 consecutive days.
o    You ceased being employed by your sponsor on or before 17 February 2017. On 30 November 2017, the date your visa was cancelled, you had not worked for your sponsor for more than 90 consecutive days.
o    There is no information to indicate that you recommenced employment with your sponsor.
o    A recent check indicates that no new relevant business nominations have been approved in respect of you since your visa was cancelled.
In conducted this review in your case:
·We will first consider if there are grounds to cancel your Subclass 457 visa in accordance with s.116 of the Migration Act.
·If we determine that there are such grounds, we will then consider if your visa should be cancelled, taking into account all the relevant information.
This information is relevant because it indicates that:
·You breached a condition of your subclass 457 visa, and there are grounds for cancelling your visa under s.116(1)(b) of the Migration Act
§There are circumstances which may indicate that your Subclass 457 visa should be cancelled including that:
§ Your Subclass 457 visa was granted to you for the purpose of undertaking particular employment with an approved sponsor and that purpose ceased when you stopped being employed by your sponsor.
§ You have not secured a new approved sponsor, because no new business nomination has been approved for you.
If we rely on this information in making or decision, we may:
·Determine that you breached your visa condition and therefore are there are grounds to cancel your Subclass 457 visa under s.116(1)(b) of the Migration Act.
·Decide that your visa should be cancelled.
You are invited to give comments on or respond to the above information in writing.
If we determine that there are grounds to cancel your Subclass 457 visa, it will go on to consider if your visa should be cancelled. In making this assessment, the Tribunal will consider all relevant information, which may include, but is not limited to:
o    The purpose of your travel to and stay in Australia
o    The degree of hardship that may be caused by visa cancellation
o    The circumstances in which the ground for cancellation arose
o    Your past and present conduct towards the department
o    Australia’s obligations under international agreements
o    The impact of cancellation on any victims of family violence
o    Any other relevant matters.
Applicant’s Response
The applicant sought an extension of time in which to respond which was granted. On 19 October 2018 the applicant provided a statement and a number of supporting documents (some of which had been previously provided). A submission relevantly contended:
1)     The Applicant seeks to rely on the case of 1417329 [2015] MRTA 150 (4 February 2015), where the Migration Review Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa
2)     The applicant in the said case had nearly the same circumstances as [the applicant’s] circumstances in that:
i.The applicant's Notice of Intention to Consider Cancellation was sent to her address in Bangladesh while she was in Australia;
ii.The applicant put off searching for employment when her father passed away;
iii.She obtained employment with another sponsor more than 90 days from the time that she ceased employment with her previous sponsor.
3.The Tribunal, in setting aside the decision under review in the above-cited case, found that:
i.The applicant's search for a new sponsor was further delayed by the fact that her father passed away and she was distressed by this and she was waiting to hear from her previous sponsor.
ii.The applicant had not previously breached visa conditions;
iii.She obtained employment with another sponsor more than 90 days from the time that she ceased employment with her previous employer;
iv.The applicant was unable to respond to the notice of intention to cancel because it was sent to her old temporary address in Bangladesh and she did not receive it. There is no requirement for a Subclass 457 visa holder to keep the Department informed of their most recent address. The applicant was denied an opportunity to respond to the notice of intention to cancel and present evidence and arguments before the cancellation decision was made.
4.[The applicant] submits that:
i.His search for a new sponsor was delayed by the fact that:
a)He relied upon the assurance of Alloy that they were going to employ him by February 2017;
b)Alloy's CEO advised him to keep following-up regularly for any vacancy;
c)He tried applying with other companies but could not find a company that was willing to sponsor him as an employee in his field of work;
d)He was depressed and upset about the death of his wife, with whom he was married for 30 years, and had 8 children with; he was guilty that his wife passed on while he was in Australia and she was in the Philippines, not being with his wife when she was alive and she needed him most;
ii         He has not previously breached his visa conditions;
iiiHe was unable to respond to the notice of intention to cancel because it was sent to his old address in the Philippines while he was in Australia, and that address was not his permanent address in the Philippines - he no longer has a house in the Philippines and rents accommodation for his family now. He did not receive the notice of intention to cancel.
Purpose of the visa holder’s travel to and stay in Australia; compelling need to remain in Australia:
5.The applicant went to Australia to work as a welder. He was a welder at Transcrete and also a welder at Alloy Steel.
6.The applicant returned to Australia although his wife was terminally ill to be able to pay off his liabilities in the Philippines, incurred mostly when his wife as sick ad had to undergo dialysis, which is a costly process.
Degree of hardship that may be caused
7.The applicant will be faced with financial hardship if he were to return to the Philippines.
8.While waiting for the review of the decision for his visa cancellation, the Applicant incurred significant debts for accommodation and other living expenses in Australia and further debts in the Philippines.
9.The Applicant applied for an early of release of his superannuation after his visa was cancelled, and while awaiting the decision on his review application, but his application was refused.
Mitigating compassionate and compelling factors
10.The Applicant seeks a reversal of the decision on compassionate and compelling factors. He is the main source of financial support of his 3 children in the Philippines.
11.The Applicant incurred substantial debt while staying in Australia after the cancellation of his visa, and while awaiting the decision, without being able to work. He relied upon the generosity of his friends to keep him alive in Australia after the cancellation of his visa.
12.If his visa were not cancelled, the Applicant's visa would have been valid until 11 June 2019.
13.Although The ground for cancellation in s 116(1)(b) exists, the ground does not require mandatory cancellation under s 116(3 ), and the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
14.Based on the Applicant’s submissions and personal circumstances set out in his Affidavit and Supplementary Affidavit, the Applicant seeks the exercise by the Tribunal of its discretion not to cancel the Applicant's visa.
The applicant’s Affidavit dated 16 October 2018, relevantly contends:
·Alloy Steel International (‘Alloy’) was my first sponsor and they nominated me for a Subclass 457 visa originally on 1 December 2006.
·In 2014, my wife and I went home to the Philippines just before our visas expired.
·Before I went to the Philippines, Alloy applied for my sponsorship and nomination.
·In 2014, while in the Philippines, I applied for work locally.
·I found work in a ship yard as a welder but it was good for 3 weeks and the pay was $7.35 per day only for 8 hours of work, which was not enough to pay my debts.
·Based on Alloy's new sponsorship and nomination, I applied for a new Subclass 457 visa which was granted on 11 June 2015.
·While waiting for Alloy to confirm my flights, I emailed Alloy to ask them to confirm when I could fly to Perth.
·Alloy told me to wait for further notice from them because they were reducing their workforce.
·Alloy told me that I could apply with another employer in Australia in the meantime.
·Someone in the Philippines informed me that Transcrete Pty Ltd (‘Transcrete’), a company based in Sydney, was looking for welders/boilermaker.
·I applied with Transcrete, and Transcrete sponsored and nominated me for a 457 visa as a first class welder.
·I did not apply for another 457 visa as my 457 visa was still valid until 11 June 2019.
·I worked with Transcrete from 14 January 2016 to 16 February 2017.
·On 2 February 2016, my wife died in the Philippines while I was in Australia working for Transcrete. I took an emergency leave and flew back to the Philippines to bury her
·In or about October 2016, I flew to Perth from Sydney for 2 days to obtain my wife's PAYG certificate from her former employer.
·At this time I went to the offices of Alloy, and spoke to the CEO, Steven Kostecki.
·I asked Mr Kostecki if he would re-employ me if l left Transcrete.
·Mr Kostecki assured me that Alloy would re-employ me by February 2017.
·As a result, I confidently resigned from Transcrete for the reasons I already set out, including the lack of overtime work, which I needed, to pay off my debts.
·Another reason why I left Transcrete was that I felt depressed and upset about my wife's death. We were married for 30 years and had 8 children. It took a toll on me and I felt guilty for not being there when my wife needed me most.
·Upon my return to Perth following my resignation from Transcrete, I contacted Alloy immediately.
·Mr Kostecki told me to wait and keep following-up regularly to check for a vacancy.
·I tried applying with other companies but I could not find any company that was willing to sponsor and nominate me pursuant to a 457 visa.
·Every month, I returned to Alloy begging for a job.
·Finally, on 3 August 2017 Alloy employed me based on the renewed nomination of 2015.
·On 30 November 2017, I received an email from the Department of immigration and Border Protection now Department of Home Affairs ('the Department") informing me that my visa was cancelled.
·The basis of the cancellation was the condition under Subclass 457 visa, 8107(3)(b) which provides that if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.
·I was unaware that the Department sent a letter of notice of intention to cancel to my address in the Philippines on IO October 2017 while I was in Australia.
·The address that was used by the Department was my old address in the Philippines and I do not live there anymore.
·I was unable to respond to the letter sent by the Department on 10 October 2017.
·As soon as I became aware that there was a problem with my visa, I engaged a lawyer to resolve my matter.
·I have been cooperative with the Department and I have not deliberately flouted immigration law.
·I confirm that Alloy Steel is willing to re-employ me if my visa were to be reinstated.
·I confirm that should my Subclass 457 visa be reinstated, I will work in the same occupation as set out in my nomination and my original purpose and intent to travel in Australia will be retained.
·I continue to suffer from depression.
·Annexed…is a true copy of a certificate from my counsellor relating to my counselling sessions.
·I have been unemployed since the cancellation of my Subclass 457 visa.
·I applied with Centrelink for a claim for status resolution support services payment and early release of superannuation on compassionate grounds, and mortgage assistance.
·Centrelink contacted me by telephone informing me that I was not eligible for the payments that I applied for because I was a holder of a subclass 457 visa.
·I have incurred substantial debts since November 2017…
·As at the date of this affidavit, my debts in the Philippines and Australia are subsisting and remain unpaid.
·One of my creditors…told me that if I do not pay him what I owe him, he was going to take me to Court to make sure that I stayed in prison.
Also provided, in summary were the following documents/reports:
·     A copy of the applicant’s wife’s ‘Certificate of Death’ confirming she died on 1 February 2016;
·     A submission dated 8 December 2017 the substance of which is repeated in later submissions;
·     Information about the applicant’s debts, financial obligations and his application for early release of his superannuation on compassionate grounds;
·     A letter dated 11 October 2018 from Katie Larkin, Business Manager, Vison Counselling and Psychology, who writes that that applicant attended a session on 11 October 2018 with a therapist. No further sessions were booked;
·     A copy of the visa grant issued to the applicant on 11 June 2015 and valid until 11 June 2019 with the sponsor, Alloy Steel Australia (Int) Pty Ltd;
·     A letter dated 20 December 2017 from Steven Kostecki, Chief Executive Officer, Alloy Steel stating that the company is willing to re-employ the applicant as a Welder (First Class) on the original terms and conditions as the application granted on 19 January 2015 and that, in the interim, the applicant has been employed on a full time basis as a Welder (First Class) on the night shift from August to 30 November 2017;
·     A further email from Denise Gasmire, Finance Manager dated 26 October 2018 stating that Alloy Steel International is still prepared to employ the applicant;
·     A further Affidavit from the applicant dated 1 November 2018 which does not add any additional substantive, relevant information to that summarised here; and
·     An Affidavit sworn by the applicant and dated 8 December 2017 in which he relevantly states:
oI am 51 years old and a citizen of the Philippines;
oOn 1 December 2006, I first entered Australia as a Welder pursuant to a Temporary Work (Skilled) (subclass 457) visa under the sponsorship of Alloy Steel Australia (Int) Pty Ltd (“Alloy Steel”).
oI worked for Alloy Steel for 7 years and 6 months.
oMy wife was with me in Perth.
oWhile in Perth, my wife worked as a chicken boner for a chicken factory and earned an income.
oIn or about November 2010, my wife and I applied for permanent residence but this application was refused because my wife did not ass the health requirement because of kidney problems discovered during the health screening process.
oMy wife and I appealed the refusal decision but ultimately abandoned the appeal so as not to disqualify us from applying for another substantive visa in Australia.
oMy wife and I left Australia to go back to the Philippines on or about 9 July 2014, on the basis that Alloy Steel assured me that Alloy Steel was going to re-employ me under a new 457 sponsorship.
oAlloy Steel made good its promise to sponsor me in my new application for subclass 457 visa.
oI applied for a new 457 visa on or about 19 January 2015
oMy new 457 visa with Alloy Steel as a sponsor did not issue until 11 June 2015…
oHowever, while I was in the Philippines getting ready to depart for Perth, Alloy Steel advised me not to travel to Australia as yet due to a slow-down in its business.
oI then had to apply with another company, Transcrete Pty Ltd, which agreed to become my sponsor.
oThis took me months to find another sponsor.
oI arrived in Sydney on 13 January 2016 or nearly 1 year and a half since I first departed Australia.
oI commenced work at Transcrete on 14 January 2016.
oOn 2 February 2016, my wife passed away in the Philippines from kidney failure and I had to go back to the Philippines to bury my wife. I took an emergency leave from work…
oAfter burying my wife, I returned to Sydney on 22 February 2016.
oI stayed with Transcrete until 16 February 2017.
oI resigned from my employment with Transcrete for the following reasons:
My net pay was $824 per week;
I was not able to supplement my weekly wage with overtime work as there was no overtime work available;
My salary was not enough to pay rent, food, my financial liabilities in the Philippines, and support my children in the Philippines;
Prior to her death, my wife was in constant need of medical attention including regular dialysis treatment, and this led me to incur enormous debts as the cost of hospitalisation in the Philippines was beyond my means.
I also had to pay recruitment fees to recruiters who helped me with my new subclass 457 visa application;
I borrowed money from loan sharks who asked for 100% interest rate…
oConverted to Australian currency, I estimate my total liabilities to be approximately $48,611.
oThese liabilities continue to incur interest.
oI decided to remain in Australia after leaving Transcrete, but return to Perth and approach Alloy Steel.
oAlloy Steel could not provide me with employment.
oIt was not until 3 August 2017 that Alloy Steel employed me pursuant to the original nomination, and after conducting a VEVO entitlement check…
oOn 30 November 2017, I received the notice of cancellation of my visa by email…
oOn the same day Alloy Steel terminated my services, following receipt of a copy of the notice of cancellation of visa.
Notice of Intention Consider Cancellation
oIn the Notification of Cancellation of 30 November 2017, the delegate referred to a notice of 10 October 2017 described as a notice of intention to consider cancellation of visa (‘Notice of Intention’).
oI say I never received a copy of the Notice of Intention and the first time I knew about it was when I read about it in the notice of cancellation.
oThe said Notice of intention could have been sent to my address in the Philippines.
oAs of 10 October 2017, I was working in Perth for Alloy Steel, and did not receive a copy of the Notice of Intention.
Purpose of via holder’s travel to and stay in Australia; compelling need to remain in Australia:
oI worked for Alloy Steel as a Welder from 2008 until 2014
oThereafter worked for Alloy Steel for 3 months.
oWhile my visa was being cancelled, I was in active employment with Alloy Steel, my original sponsor
oAlloy Steel is willing to offer the same position to me, provided that the visa cancellation decision is set aside…
oThe said visa, were it not cancelled, would have been valid until 11 June 2019.
oI am the main earner in the family. I support 3 of my children, 1 of whom is in university, and 2 of whom are in high school.
oI also have to pay off my debts which I accumulated while my wife was sick and required expensive dialysis treatment and hospital care.
oI also have continuing obligations to pay off my debts to loan sharks for my visa application expenses while applying for a new 457 visa in the Philippines.
oI was not earning an income while waiting on my new 457 visa to issue and had to survive on borrowing.
The extent of compliance with visa conditions
oFor the grant of the 457 visa, my wife and I departed Australia and discontinued our ministerial appeal for the refusal to grant a permanent residence visa.
oFor the new visa, after being informed that Alloy Steel could not provide me with immediate re-employment, I sought out another employer based in Sydney to sponsor my employment.
oNotwithstanding financial difficulty, I stayed with Transcrete for 13 months, although I was bleeding financially, and was not earning enough to be able to meet my financial obligations in the Philippines, including sending money to my children for their day-to-day living expenses.
oI sought out and constantly hounded Alloy Steel to re-employ me, and this is where I was when my visa was cancelled.
oThe notice of grant of visa to me stated:
"If more than 90 consecutive days have passed since the date you ceased employment, you may be in breach of condition 8107 and may have your visa cancelled. "
oI actively looked for employment after leaving Transcrete and Alloy Steel was not able to provide me with work until August 2017.
oMy interpretation of the visa condition was that it was not mandatory because of the word "may".
oI could not afford to go back to the Philippines after leaving Transcrete because of my financial liabilities in the Philippines that I have to pay off and my focus after leaving Transcrete was to find another job as a welder in Australia.
Degree of hardship that may be caused
oI will be faced with financial hardship if I were to return to the Philippines.
oAlloy Steel is willing to re-employ me and the only reason my services were terminated on 30 November 2017 was because my visa was cancelled.
oI have set out my financial liabilities above, including my obligation to support my 3 children who continue to rely on me for financial support.
Circumstances in which ground for cancellation arose:
oI had to leave my employment with Transcrete as I was not earning enough to support myself, my children and pay off my financial liabilities in the Philippines.
oI was relying upon working overtime to supplement my income but this opportunity was not available to me.
oI believed that I would easily find alternative employment because of my skill but the global financial crisis led to a lot of potential employers not having any job vacancies and demand for welders.
oI was lucky enough to return to Alloy Steel, who is supportive of my employment.
Past and present conduct of the visa holder towards the Department
oI did not insist on remaining in Australia after my application for permanent residence was denied and after realising that my wife's medical condition was not going to improve. My wife and I chose to return to the Philippines where my wife eventually passed away.
oI immediately sought legal advice on my options upon receiving the notice of cancellation of visa, and am applying for review in a timely manner.
Mitigating compassionate and compelling factors
oI seek the setting aside of the decision of the Minister on the basis of compassionate and compelling factors:
oMy wife passed away
oMy wife previously worked and supplemented my income and we both sent our incomes to the Philippines to pay off our debts and to support our children (we have a total of 8 children, some of whom are adults, but 3 of whom we still support).
oMy wife's medical condition caused us severe financial hardship as the cost of hospitalisation and dialysis treatment is something which majority of the Philippine population could not afford.
oAs my wife and I had to return to the Philippines, we did not have an income while we were there and while my wife required medical care. My wife and I were left with no option but to borrow from loan sharks who charged usurious interest rates.
oI am still paying off these loans.
oI was unemployed in Australia for only about 5 months and actively sought employment in the interim.
oI now have capacity to improve my finances and repay my debts with the offer from Alloy Steel to re-employ me as soon as my visa is reinstated, if at all.
oI did my best to stay with Transcrete and only decided to find alternative employment when I could no longer afford to remain with Transcrete due to my financial obligations.
oAs a race Filipinos are known to be hardworking, will sacrifice for their families, and do not give up easily. It took a lot of courage for me to leave my employment with Transcrete to look for better pay.
Whether cancellation would result in the visa holder being unlawful and subject to detention
oThe visa cancellation, without an appeal and a bridging visa, would result in my being unlawful and subject to detention.
Any other relevant matters
oI seek to be given a chance with Alloy Steel.

On 12 November 2018 the Tribunal wrote to the applicant via his representative, requesting that Mr Steven Kostecki be available to give witness evidence at the hearing about Alloy Steel International’s willingness to re-employ the applicant. In response, on 13 November 218 the Tribunal was advised that Mr Kostecki was unable to attend the hearing in person but is willing to confirm by telephone the substance of the following Affidavit dated 13 November:
1)   I am the Chief Executive Officer of Alloy Steel Australia (Int) Pty Ltd trading as Alloy Steel International (“Alloy Steel”).
2)   I have authority to swear this affidavit on behalf of Alloy Steel.
3)   Alloy Steel is willing to re-employ [the applicant] as a Welder (First Class), on the original terms and salary as set out on our application 1040560680 granted on 19 January 2015 or such other application as may be directed by the Tribunal.
4)   I confirm that [the applicant] was employed by Alloy Steel on a full-time basis as a Welder (First Class) on our night shift operations for the period 3 August – 30 November 2017;
5)   [The applicant’s] employment ceased due to the issue of Notice of Cancellation of Temporary Business Entry visa.
6)   I confirm that Alloy Steel is willing to re-employ [the applicant] if his visa were to be reinstated.
7)   [The applicant] will commence on our night shift operations at an hourly rate of $26.00 with a night shift allowance of 15%...
The applicant appeared before the Tribunal on 15 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence Mr Steven Kostecki by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Ilonggo and English languages as necessary.
The applicant was represented in relation to the review by a registered legal practitioner who attended the hearing.
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
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?
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 was attached to the applicant’s visa. Condition 8107(3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.
On the basis of the information before it the Tribunal finds that the applicant was granted a subclass 457 visa on 11 June 2015 to occupy the nominated position of ‘Welder (First Class)’ at Alloy Steel. The applicant was also the subject of an approved nomination for the occupation of Welder ‘(First Cass)’ with Transcrete Pty Ltd which was approved on 11 June 2016 and valid until 11 June 2019 before being cancelled on 30 November 2017.
The applicant explained that he had worked for Alloy Steel for 7 years and 6 months from 1 December 2006 to July 2014. He was recruited from the Philippines by Mr Steven Kostecki’s father who, after reviewing the written certifications provided, came to the Philippines to conduct a trade test with the applicant and others. The applicant arrived in Australia on 1 December 2006 and immediately started working for Alloy Steel. He initially came by himself but his wife joined him 2 years later. His sister-in-law cared for their 8 children. In November 2010 Alloy Steel nominated them for an ENS visa however this was refused when his wife failed the health examinations. They appealed to the Tribunal but were unsuccessful. Five men came to work for Alloy Steel with him and some of them are now citizens. They left Australia on 9 July 2014.
Alloy Steel lodged a new 457 nomination in respect of the applicant but it took 6 months to process and was approved on 11 June 2015 valid until 30 November 2019. At that time the applicant was in the Philippines. He returned to Australia on 13 January 2016 but was informed then that Alloy Steel was downsizing and that he could not start at that time as planned. In his witness evidence Mr Kostecki said that this coincided with the down turn in the mining boom. He then started looking for other work as a first class welder and was referred to Transcrete by a friend. He contacted Transcrete from the Philippines and emailed him his documents. After a month he was offered the position as a welder in Sydney. They lodged a new nomination for him and he worked for one year and 2 months resigning in February 2017. He went back to work for Alloy Steel in August 2017 but thought he would be able to start earlier and straight after resigning from Transcrete. The applicant left work at Transcrete because it provided no overtime, he was depressed, he was not paid enough money and he thought he had a job to go back to at Alloy Steel. He would not have resigned if he knew he could not be re-employed at Alloy Steel.
The applicant agreed that he ceased employment with Transcrete Pty Ltd effective 17 February 2017 and that he did not re-commence employment on a 457 visa again for 90 days or more.
Validity of the s119 Notice of Intention to Cancel
The applicant has claimed that he not receive the Notice of Intention to Consider Cancellation (NOICC) as it was sent to an old address in the Philippines. This appears to have arisen because the applicant did not notify the department of his (then) current address as required. Nonetheless, the Tribunal has proceeded to consider whether, on this basis, s.119 was not complied with.
However the Tribunal is of the view that this defect at the primary level is curable by a full merits review such as the applicant has been afforded. Although the alleged failure of the delegate to provide the applicant with an opportunity to respond suggests a denial of procedural fairness, as considered in Zubair v MIMIA [2004] 139 FCR 344, the Act does not require that the Tribunal “cull out” those decisions which may involve a jurisdictional error on the part of the original decision-maker, and a reviewable decision may be one despite a delegate’s failure to comply with procedure. Although the facts of this case differ, there is no reason preventing this principle from having similar application. To the extent that the applicant has been denied procedural fairness at the primary level, the Tribunal is confident that this defect was cured by a full merits review.
To this end the Tribunal asked the applicant how he would have responded to the NOICC his visa had he received it at the correct email address and whether he would have given the department any additional information to that he had given the Tribunal. He responded that he had told the Tribunal everything. Given the applicant’s response the Tribunal is satisfied that any defect in the notification process has been cured on the review and, as explained to him during the hearing, he was in in breach of Condition 8107(3)(b) once he had ceased employment for more than 90 consecutive days whether or not he responded to the NOICC.
The applicant concedes that after he ceased employment with Transcrete Pty Ltd he ceased employment for a period exceeding 90 days. This is supported by the information before the Tribunal contained in the primary decision and conceded in submissions provided to the Tribunal. The Tribunal therefore finds that during the period the applicant held his subclass 457 visa he ceased employment for more than 90 consecutive days and therefore breached Condition 8107(3)(b) of his visa.
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
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’.
The purpose of the applicant’s travel to and stay in Australia
The applicant first came to Australia to be employed as a Welder at Alloy Steel which was his first sponsor during the period 21 November 2006 to 21 November 2010. He came to Australia to make money to support his 8 children in the Philippines who were, at the time, aged between 15 and 6. The applicant arrived in Australia on 1 December 2006 and his wife arrived here in 2008. His wife’s sister raised their children. Alloy Steel lodged a nomination for permanent residency application for him in November 2010 but this was refused in December 2013 due to his wife’s medical condition. The applicant and wife returned to the Philippines in July 2014. He is hoping, if he does get another visa, that his 3 dependent children will be able to come to Australia.
Alloy Steel was granted a further 457 nomination in respect of the applicant on 11 June 2015 however the applicant’s evidence is that he was advised to wait before returning to Australia as Alloy Steel was reducing its work force. In the interim the applicant secured employment as Welder with Transcrete Pty Ltd. He resigned from Transcrete in February 2017 on the basis of a conversation he had with Mr Steven Kostecki, that Alloy Steel would re-employ him however this did not eventuate until 3 August 2017 when he resumed employment as a Welder.
During the hearing Mr Steven Kostecki gave witness evidence by telephone, confirming that Alloy Steel wants to re-employ the applicant as a welder (first class), as soon as possible. Mr Kostecki explained that Alloy Steel employs 70 people in Australia and a person each in India and America in addition to worldwide distributors. He said it may have been the work-shop manager who told the applicant he could not start work immediately after he resigned for Transcrete in February 2017.
As explained to the applicant at the hearing, a 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that the applicant would be able to remain in Australia on a permanent basis. The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time as a welder (First Class) at Transcrete Pty Ltd. While he no longer works for Transcrete, the Tribunal is satisfied, based on the evidence before it, that Alloy Steel will re-employ the applicant as a Welder (First Class).
Given this evidence and placing significant weight on the written and oral evidence of Mr Kostecki hat the company wants to re-employ the applicant, the Tribunal is of the view that the applicant’s purpose of travel to and stay in Australia is still a valid one.
The degree of hardship that may be caused by visa cancellation
The Tribunal accepts that the applicant has accumulated large debts throughout his life including due to the medical treatment his wife required before her death. It also acknowledges that he support his 3 dependent children who live in the Philippines. At the hearing the applicant said it would be very, very difficult because in the Philippines it is hard to find a job as a welder because there are a lot of skilled people there and the salaries are cheap; $7 for 8 hours work. However, as explained to the applicant at the hearing, many people incur debts for all kinds of reasons and it is not the purpose of Australia’s skilled visa program to provide employment for people to pay off their debts. The Tribunal therefore gives this factor little weight.
The circumstances in which the ground for cancellation arose
The visa was cancelled when the applicant voluntarily left his employment with Transcrete Pty Ltd. At the hearing he said he left Transcrete as he thought that he could immediately recommence employment with Alloy Steel however this re-employment did not eventuate until August.
The applicant’s past and present behaviour towards the Department
There is no information before the Tribunal to suggest that the applicant has not complied with his visa conditions. The Tribunal places no weight on the applicant’s inability to respond to the NOICC.
Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation
The applicant’s visa was cancelled on 30 November 2017 and he now holds a Bridging visa E. There is no evidence before the Tribunal that cancellation would result in him being subject to detention, or that indefinite detention is a possible consequence of cancellation. There is no evidence before the Tribunal to support the assertion made in the applicant’s submission that the visa cancellation, without an appeal and a bridging visa, would result in him being unlawful and subject to detention.
Whether any international obligations would be breached as a result of the cancellation
The Tribunal asked the applicant if he holds any fears for his safety or security should he have to return to the Philippines. He said yes, because he has debts there and he might be put in jail. He said he had given the title of the house to the lenders as collateral and they would take the title for his debts. He said some of his daughters are staying in the house. The Tribunal does not consider that the applicant giving the title of his house to the lenders or that he may face any legal consequences for not paying his debts to be matters which amount to a breach of international obligations. The Tribunal notes that all of the applicant’s 8 children live in the Philippines.
Degree of hardship and consequential cancellations under s.140
There are no consequential cancellations under s.140.
In summary, the Tribunal accepts, and placed the most weight on the fact that, the applicant’s proposed sponsor, Alloy Steel Australia (Int) Pty Ltd has a continuing need for the applicant’s skills in its Australian operations, as evidenced by its consistent evidence as to its capacity and readiness to re-employ him on the same terms and conditions as he was employed when his visa was granted on 11 June 2015. Had it not been cancelled this visa would have remained valid until 11 June 2019. The fact that this was the company for which the applicant worked prior to his visa cancellation and that it is for the same occupation further strengthens the Tribunal’s view that Alloy Steel has a genuine need for the applicant’s skills in its workforce.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
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.
Karen Synon
Member

[2018] AATA 5849

28 December 2018

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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