1935016 (Migration)

[2020] AATA 3533

1935016 (Migration) [2020] AATA 3533 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1935016

MEMBER:Michelle East

DATE:12 May 2020

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 12 May 2020 at 4:44pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased work for more than 60 consecutive days – economic conditions made it difficult to secure further employment – confusion due to application to Fair Work Commission – significant hardship should the visa be cancelled – consequential cancellations – contribution to community – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 348

Migration Regulations 1994 (Cth), Schedule 8, Visa Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 December 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) 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 his visa condition 8107 by having ceased employment with his last approved sponsor for a period exceeding 60 days. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The applicants appeared by telephone before the Tribunal on 12 May 2020 to give evidence and present arguments.

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 attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which they cease employment must not exceed 60 consecutive days.

8. On the basis of the information before it from the Department records and as detailed in the delegate’s decision, the Tribunal finds that the applicant was granted a subclass 457 visa on 3 October 2018 to occupy a position of ‘Engineering Professionals nec (ANZSCO 233999) to work for [Employer 1] (‘the sponsor’).

9. Prior to that the applicant had been granted a subclass 457 visa on 6 June 2011 and 14 October 2014.  He arrived in Australia on his first subclass 457 visa [in] August 2011.

10. The Tribunal finds that the applicant’s occupation of ‘Engineering Professionals nec’ (ANZSCO 233999) is not a specified occupation for the purposes of paragraph 8107(3A).

11. According to the delegate’s decision, the Department received notification on 6 June 2019 from the sponsor that the applicant had ceased working with them from 5 June 2019.

12. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 19 November 2019 and on 22 November 2019 he provided a written response.

13. In that response he provided as follows:

    The purpose of the 457 visa granted on the 3^rd October 2019, sponsored by [Employer 1] was to maintain the requirements to attain eligibility to apply for Permanent Residency on the 19^th May 2019.

    This was the third 457 visa granted with a medical waiver but due to various circumstances, we were not afforded the opportunity to apply for Permanent Residency after being in Australia for almost eight years. The initial visa was granted on the 6^th June 2011 and we arrived in Australia on the 31^st August 2011.

    [Employer 1] terminated my employment on the 5^th June 2019. An unfair dismissal application was submitted and mediated by the FairWork commission [in] July 2019.

    Concluded that the case was outside the delegation of the FairWork commission owing to the level of my yearly earnings. The case was to be progressed through the Civil Courts. Based on the potential costs, financial risks and taking [large company] with an international law firm, we decided to withdraw the FairWork case [in] July 2019. Formal discontinuation was submitted to the FairWork Commission [in] July 2018. (Attached).

    I pursued the possibility of finding an Employment Lawyer willing to take on the Unfair Dismissal case under a no fee no win basis but have been unsuccessful.

    We enquired regarding the 60-day notice on two occasions but were informed that [Employer 1] were still our sponsor.

    We have not received the formal 60-day notice from the immigration department and questioned the fact that [Employer 1] had submitted the notice to the immigration department. [Employer 1] confirmed that they issued the notice within the 28-day period following Employment termination.

    I have sought alternative employment from June 2019 with no success. The only offers that I have received was that they would employ me if I had a Permanent Residency in place or in progress. I work in a specialised [field, Field 1] and most of the [Field 1] projects either are in the tender stages or are under political pressure to employ Australian resources.

    The online visa portal was consistently kept up to date with all our personal details and I have not been employed by any other entity other than [Employer 1] under the current 457 Visa. We have been active members on a number of Volunteer organisations. ([College 1], [Environmental Organisation 1], [charitable organisation], [sporting club] and [Medical Support Association 1]).

    My cousin and family who are Australian Citizens will be adversely effected with us leaving Australia, as they do not have any other family members in Australia.

    My three children ages [specified] do not know any other country as my oldest was [age] and youngest was [age] when we arrived in Australia. The move from [Town 1] to [City 1] has effected all three children emotionally and should we have to move to [Country 1] or England, our children will struggle to integrate. My wife is [a citizen of Country 1] and I am British. If we leave Australia, we will need to stay with my in laws in [Country 1] until I can arrange council housing and financial relief in England. We sold our property and most of our belongings when we immigrated to Australia.

    With the pending Brexit issues, we potentially will be required to apply for further visas for my wife and myself to retain our family unit. My children cannot speak [the language of Country 1] and are currently home schooled. In [Country 1], home schooling is not recognised and the Children must attend school. This would further effect my children’s emotional stability.

    There are a number of projects across Australia, which will be kicking off in the New Year. These are aligned to the new [Management System 1, used in Field 1, that was] developed in Europe. I have gained intimate knowledge and experience having implemented this system on a number of [operations] across Europe. I was part of the team who delivered the first [Management System 1] in Australia. I have also been part of developing and training Australian resources on the new system. I will definitely be able to source a new sponsor once the [Management System 1] projects are awarded. The [Management System 1] knowledge base across Australia is at a critical level, which potentially could affect the successful completion of [related] projects.

    We are currently working with an Immigration agent and immigration lawyer to assist us with identifying a process and category to allow us to apply for permanent residency. The last two companies that I have worked for has just refused to sponsor our Permanent Residency application. We have been under a lot of emotional pressure and stress over a number of years, which has placed a lot of pressure on my family unit.

    We are requesting that the Minister considers our situation and grant an extension of the cancellation to the end of March 2020 to enable me to source alternative Employment and / or submit a Permanent Residency application.

14. The applicant confirmed at the hearing he did cease working for the sponsor as indicated and at the date of the delegate’s decision had not obtained a new nomination.  He further stated that there was some confusion because of his application to the Fair Work Commission for wrongful dismissal and whether that meant he was still sponsored by [Employer 1].

15. In any case, as at the date of the delegate’s decision, the applicant had ceased work for more than 60 consecutive days regardless of when the cessation of his employment commenced.

16. The Tribunal therefore finds that during the period the applicant held his subclass 457 visa he ceased employment for more than 60 consecutive days and therefore breached condition 8107(3)(b) of his 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’.

    The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia.

19. The applicant provided a comprehensive submission to the Tribunal detailing his employment and visa background.

20. The applicant and his family moved to Australia in 2011.  The applicant described his experience in managing [Management System 1] and project managing [a related system] in Europe.

21. The applicant initially lived in [City 1], working as a project manager for [Employer 2] and was responsible for project managing [a specified new worksite].

22. He subsequently learned that [Project 1] would be utilising the first implementation of [Management System 1] in Australia.  He was employed by [Employer 3] as [Occupation 1] on 12 March 2012.  [Employer 3] had been awarded the [Project 1] [Field 1] contract.

23. The applicant continued to work for [Employer 3] until being made redundant on 12 February 2016.  During that time he worked in a variety of positions within the company.  Attempts were made to secure permanent residency however these were unsuccessful.

24. The applicant commenced working for [Employer 1] during May 2016.  He initially worked as a [Field 1] Supervisor on [a] roster.  The applicant was invited by the company to apply for a new position as [Field 1] Superintendent in August 2016.  The applicant described being ‘reluctant to apply for the position because we were on a 457 visa (with a medical waiver) and that we had lost our Permanent Residency (PR) eligibility due to my previous company changing our visa work category without our knowledge and agreement.  [Employer 1] committed to support us with our visa and PR.  Based on their agreement and committed support, I applied and was appointed in the [Field 1] Superintendent position.  We also moved to [Town 1] from [location], as the new position was residential’.

25. After some discussion, [Employer 1] agreed to apply for a renewal of the applicant’s 457 visa as a sponsor.  A new visa was granted in October 2018.

26. The applicant detailed issues he had with his General Manager resulting in his General Manager suspending him on 17 December 2018 and starting an investigation based on a complaint from a third party.  [Employer 1] presented a settlement agreement to the applicant which was signed by him on 14 January 2019 and returned to the company for execution.

27. On 1 May 2019 the applicant received a ‘Termination of Employment’ letter with a five week notice period and his employment was terminated on 5 June 2019.  The applicant applied to Fair Work Australia and attended conciliation.  This was not successful and due to the costs of progressing with his claim the applicant discontinued his application.

28. The applicant, as detailed above, has lived and worked in Australia for an extended period of time.  He has been employed in a variety of roles in a professional capacity.  The Tribunal accepts that repeated attempts have been made to be sponsored for a permanent visa and that these have not been successful due to no fault by the applicant.

29. A subclass 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.

30. The purpose of the applicant’s stay in Australia when granted the 457 visa, was to work in his professional field.  He has held other positions since the one he originally occupied, however has been working in the same area of work during that time.

31. The Tribunal accepts the applicant’s evidence that efforts were made during that time to secure permanent residency and he had his most recent 457 visa renewed with the intention that he would progress to permanent residency.

32. Therefore, although the applicant originally came to Australia on a temporary 457 visa, his intention in recent years was to gain permanent residency.

33. The applicant was clearly complying with the purpose of his travel to and stay in Australia up until he was terminated by [Employer 1].  The Tribunal accepts that the economic conditions in [State 1] since that time made it difficult to secure further employment.

34. At the hearing the applicant confirmed that once he and his wife received their bridging visas that they both obtained work.  The applicant said he has been employed since January 2020 as a principal [Field 1] engineer for [Employer 4] and his wife is working as [an Occupation 2] at [College 1].

35. The Tribunal is prepared to accept the applicant’s explanation as to why he left his employment through no fault of his own.  The Tribunal is satisfied that the applicant has, to the extent possible, complied with the purpose of his travel to and stay in Australia.

36. The Tribunal finds this weighs in favour of not exercising the discretion to cancel the visa.

37. The applicant gave evidence of his family’s desire to stay in Australia and of the financial disadvantage they would suffer if they had to return to the UK or [Country 1], the second-named applicant’s home country.  The Tribunal acknowledges that the applicant and his family would prefer to remain in Australia however finds this falls short of being a compelling need.

    The extent of compliance with visa conditions

38. There is no evidence suggesting the applicant has not been compliant with other visa conditions since arriving in Australia in 2011.  The Tribunal also notes the applicant had visited Australia for short stays prior to this time and there is also no evidence suggesting a breach of visa conditions at that time.

39. The Tribunal finds this weighs in favour of not exercising the discretion to cancel the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

40. As outlined in his response to the NOICC, the applicant outlined the degree of hardship that would be caused to himself and his family in the event of his visa cancellation.

41. The applicant has 3 children all of whom have only known living in Australia.  Their eldest was [age] and the youngest [age] when they moved here.  He said they would need to live with his wife’s family in [Country 1] while he was sourcing housing and financial assistance in the UK.  He said his children do not speak [the language] and would struggle to adjust to schooling in [Country 1].  At the hearing they reiterated these concerns and said they would need to be on welfare if they returned to the UK.  They both expressed their concerns regarding the degree of financial, psychological and emotional hardship they would suffer if they were forced to leave Australia.

42. The Tribunal accepts there would be significant hardship to the applicant and his family should the visa be cancelled and finds this weighs heavily in favour of not exercising its discretion to cancel the visa.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

43. The Tribunal accepts the evidence that the applicant had his employment terminated by his most recent sponsor and was actively searching for work.  His oral evidence was that there was prejudice against 457 visa holders, however once he and his wife obtained their bridging visas in January they both secured work immediately.

44. The Tribunal is satisfied that the circumstances in which the ground of cancellation arose were beyond the applicant’s control and find this weighs in favour of not exercising its discretion to cancel the visa.

    Past and present behaviour of the visa holder towards the department

45. There is nothing to indicate that the applicant has been involved in any adverse behaviour towards the department and finds this weighs in favour of not exercising its discretion to cancel the visa.

    Whether there would be consequential cancellations under s.140

46. The delegate’s decision reflects that the applicant’s wife and three children would all have their visas cancelled as a result of the applicant’s visa being cancelled.  The Tribunal accepts the parties’ evidence that this would be extremely difficult for them as a family unit.

47. The Tribunal finds this weighs heavily in favour of not exercising its discretion to cancel the visa.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

48. The applicant’s visa was cancelled on 11 December 2019 and he now holds a Bridging visa E.  There is no evidence before the Tribunal that would result in him being subject to detention or that indefinite detention is a possible consequence of cancellation.  The Tribunal considers this factor neutral in the exercise of its discretion.

49. As described earlier, the applicant said he would be forced to live with his wife’s family in [Country 1] when they leave Australia pending a return to the UK.  The Tribunal also notes the hardship caused by the current circumstances of COVID-19 and the further uncertainty this has created for people such as the applicant and his family.

    Whether any international obligations, including non-refoulement and the best interests of the children as a primary consideration would be breached as a result of the cancellation

1. There is no evidence before the Tribunal to suggest that any international obligations would be breached as a result of the cancellation.   Whilst the Tribunal notes the evidence regarding the hardship that would be suffered by his children if they have to return to [Country 1] and the UK, having spent their formative years in Australia, this does not amount to a breach of any international obligations.  The Tribunal considers this factor neutral in considering its discretion.

   Any other relevant matters

2. The applicant has provided several testimonials from family friends, colleagues of his wife and organisations they are involved in.  One of these is [Environmental Organisation 1] which describes the applicant’s wife’s contribution as valuable.  The program is said to be invested in [specified species] conservation.  A reference from the applicants’ cousins was also provided attesting to the close family relationship between the two families, particularly in the context of being isolated from other family members.

3. The applicant’s son has a diagnosis of [medical condition] which has led to the parties’ involvement with [Medical Support Association 1].  A testimonial from the President of that association speaks glowingly of the parties’ involvement with the association and their level of contribution.  A report from a social worker at [a named hospital] also noted the son’s diagnosis and observed that he was described as ‘well managed and compliant’.

4. The overall picture presented to the Tribunal from these testimonials is of a close-knit family who have actively contributed to Australia both economically and socially.  The applicant has been fully employed since securing his first subclass 457 visa and the applicant’s wife has been heavily involved in school and other communities since moving here.  She also obtained her qualification as an [Occupation 2] and has been employed in a [school].  The Tribunal is impressed with their level of contribution and commitment to Australia.  The Tribunal finds this weighs in favour of not exercising its discretion to cancel the visa.

   Conclusion

5. The Tribunal has had careful regard to all the documentary and oral evidence provided to it.

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

   DECISION

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

8. The Tribunal has no jurisdiction with respect to the other applicants.

   Michelle East
   Member