2014038 (Migration)

[2021] AATA 2034

2014038 (Migration) [2021] AATA 2034 (14 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014038

MEMBER:Noelle Hossen

DATE:14 May 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal has no jurisdiction with respect to the second and third named applicants.

Statement made on 14 May 2021 at 12:31pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – downturn in work because of COVID-19 restrictions – employment contract with different employer signed after review hearing – no evidence of new sponsorship or application provided – discretion to cancel visa – family, including young grandchild, social and cultural ties in Australia – potential difficulty finding work in home country – savings and investments – security situation – COVID-19 travel restrictions and special provisions – members of family unit – third applicant’s study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 359
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASE
Paduano v Minister for Immigration and Multicultural Indigenous Affairs [2005] FCA 211
Wan v MIMA (2001) 107 FCR 133

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 9 September 2020 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 did not comply with condition 8107(3) (b) of his visa. The condition provides that if the applicant ceased employment with his sponsoring employer, the period, during which the applicant ceases employment must not exceed 60 consecutive days. The delegate found that the applicant ceased employment with his sponsoring employer on the 6 March 2020. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant lodged an application for review on the 16 September 2021 and he included a copy of the primary decision record with his application.

4. The applicant appeared before the Tribunal on 22 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. On the 7 April the Tribunal sent an invitation to the applicant pursuant to Section 359(2) of the Act for the applicant to provide information that would be relevant to the exercise of its discretion whether to cancel the Subclass 457 visa.

6. The applicant responded and filed written submissions dated the 16 April 2021 and responded that he would take part in the hearing on the 22 April 2021.

7. The Tribunal has before it, the file from the Department relating to the applicant and has considered the material contained therein and other material contained in the Department’s file.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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

11. 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(3)(b) attached to the applicant’s visa. This condition requires that the visa holder should not be unemployed for a period exceeding 60 consecutive days.

12. The Tribunal has the following evidence before it relevant to whether the applicant has not complied with condition 8107 (3) (b) and whether the ground to cancel the applicant’s visa under Section 116(1) (b) has been made out:

13. The standard business sponsor who nominated the visa holder was [Company 1] (“the sponsor”), whose nomination was approved on the 21 April 2017.The sponsor advised the Department that the visa holder ceased employment with them effective 6 March 2020.

14. The Act sets out the procedure for cancelling visas. Notice of the grounds on which the cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled. The visa holder must also be given an opportunity to respond. In addition, a visa may not be cancelled before the visa holder has been given notice of cancellation that includes information relevant to the cancellation.

15. In his submissions filed by the applicant on the 16 April 2021 the applicant stated that he did not dispute the fact that he ceased employment with his employer/sponsor for a period exceeding 60 days and he therefore did not comply with condition 8107(3) (b).

16. Based on this information, there appears to be grounds for cancelling his visa under Section 116 (1) (b) of the Act because it appears that he has not complied with condition 8107.

17. Accordingly , the Tribunal finds that the Department gave notice of intention to consider Cancellation (NOICC) on the 22 June 2020 in relation to his Subclass visa 457.It also finds that this notice set out the grounds of the alleged noncompliance in respect of condition 8107.

18. The applicant responded in writing to the Department on the 24 and 25 June 2020.

19. The applicant agreed that there are grounds for cancellation and confirmed that his work in the [industry] had been badly affected by the COVID-19 pandemic.

20. The Tribunal finds that the Response that the applicant provided to the Department indicated that he understood the nature of the alleged non-compliance.

21. The Tribunal finds that the Department provided the applicant with enough information to adequately understand and, therefore, to respond to the notice of intention to consider cancellation, as required under the legislation.

22. As a result , given the evidence before it, the Tribunal finds that the applicant’s employment in the nominated occupation of [Occupation 1] at [Company 1] ceased on the 6 March 2020.The Tribunal finds that the applicant has not returned to this employment at the time of the decision.

23. Consequently, The Tribunal is satisfied that the applicant has ceased his employment with his sponsoring employer for more than 13 consecutive months at the time of this decision.

24. Therefore, the Tribunal finds that the applicant has not complied with the requirement in paragraph 8107(3)(b) that his cessation of his employment must not exceed 60 days and the requirements of condition 8107, which was a condition that applied to her Subclass 457 visa.

    Consideration of discretion / conclusions

25. 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

26. 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 and stay in Australia, whether the visa holder has compelling need to travel to or remain in Australia.

27. The applicant arrived in Australia in 2017 from Iraq with his wife and 2 youngest [children]. His first [child] who is not the subject of the application came to Australia in 2013. [She/He] is married and works as [an Occupation 2] and is living here on a permanent basis. His second [child] is [an Occupation 3] and is married to an Australian and is also planning to live in Australia permanently. His first and second [children] are not included in the application for review.

28. The applicant confirmed that he had a few siblings who still live in Iraq. He said that he still owns a house in Iraq. He did travel back to Iraq from Australia, on 3 occasions. When he was asked why he had returned to his home country he stated that he had to conclude some business affairs. His visits to Iraq were at times for a few months and his last visit commenced [from] July 2019 [to] August 2019.

29. The Decision of the Delegate set out the following information: “The Visa holder was granted a temporary visa to work in a nominated occupation for an approved sponsor. In the most recently approved nomination, the visa holder was nominated to work in the occupation of [Occupation 1] for the approved sponsor, [Company 1] (the sponsor). The sponsor notified the Department that the visa holder ceased employment effective 06 March 2020.While the visa holder claims he is actively looking for employment, current departmental records do not indicate that the visa holder has returned to work for a new sponsoring employer. As such, I am satisfied that the visa holder is not employed in the occupation of [Occupation 1] and therefore no longer fulfils the original purpose for which his visa was granted. Based on this information, I give this consideration significant weight in favour of cancelling the visa.”

30. The applicant told the Tribunal at the hearing, that he had been actively looking for work and had applied to 2 companies. He was not working at the date of the hearing in his capacity as an [Occupation 1]. He said that there was a potential for work at a company and that he was at this stage watching the work before he said yes to the contract. He said that he needed 10 more days to provide evidence to the Tribunal that he could find employment.

31. The applicant was granted 10 days to provide evidence to the Tribunal that he can obtain work in his chosen field. He did lodge a document being a contract signed by him on the 29 April 2021.

32. He had stated at the hearing that he had been offered a contract to work for an Iraqi gentleman and he needed 10 days to decide whether he should accept. He said that he was working for a security firm for 3 days a week. The Tribunal checked with his representative who appeared by telephone whether the applicant had submitted any documentation to verify the position including who the likely sponsor might be. The applicant had not submitted any documents to the Tribunal at the time of the hearing.

33. The applicant was aware of the reasons why his visa 457 was cancelled on the 9 September 2020.The applicant demonstrated in his response to the Tribunal that he appreciated the importance of finding a new sponsor.

34. He signed a contract of employment after the hearing date of the review as he has not taken any steps prior to the date of this decision to lodge the required business sponsorship and nominations applications with the Department for this purpose.

35. The Tribunal is satisfied that the applicant has not worked as [an Occupation 1] for [Company 1] since the 6 March 2020 and that this continues to be the case at the time of the decision.

36. In addition, the Tribunal finds that the applicant does not have an approved sponsor who has an approved business nomination in his favour at the time of the decision. The Tribunal has no evidence that there is a pending nomination application before the Department from his new employer.

37. The Tribunal has had regard to the judgment in Paduano v Minister for immigration $ Multicultural & Indigenous Affairs & Migration Review Tribunal 2005 FCA 211 where the Federal court held that the ordinary meaning of “compelling” is “forceful”. In particular, the Court held that forceful reasons (in the context of reasons for an absence from Australia) may involve physical , legal, or moral necessity, or may , by reason of their forcefulness , be convincing .

38. In considering whether the applicant has a compelling need to remain in Australia, the Tribunal has taken into consideration his age, skills and employment background as being relevant to the assessment. The evidence is that he is [age] years of age, has a degree in [Subject 1] and prior to the cancellation of his employment had worked in Australia

39. The representative said that he had been expecting documents to be produced by his client, but he had not received any further information to date.

40. At the time of the hearing the Tribunal did not have any evidence before the Tribunal that the visa holder was employed by a new sponsor who had applied for a new visa. His wish was to remain in Australia to locate a new employer that will sponsor him for a visa, which, search had been unsuccessful to date.

41. The applicant referred to the COVID-19 pandemic, the resulting restrictions and business shutdowns, and the effect on him. In his submissions in writing the applicant stated as follows: “The applicants have been in Australia for many years and have other immediate family members who also live in Australia with their families. The applicant has a network of social and cultural ties in Australia and has made a significant contribution to his family’s wellbeing in Australia.”

42. The Tribunal has weighed the family’s claim that they want to remain in Australia to live because two of their [children] are already living in Australia. Although the Tribunal acknowledges that the 457 visa is a temporary visa and is often a pathway to permanent residency in Australia the Tribunal has placed limited weight on the claims, in favour of the applicant’s case as the temporary visa does not come with any guarantee or express representation of permanent residency. The applicant’s preference to remain in Australia with his family for the purpose of improved future career and economic prospects is not consistent with the purpose of the 457 visas.

43. A 457 visa is a temporary visa that provides for skilled people and their immediate families to come to Australia to work for an approved employer for up to 4 years. The visa operated on the premise that it would not undermine job opportunities for Australians. The 457 scheme allowed visa holders to fill roles where there is a genuine skills shortage.

44. Accordingly, the Tribunal weighs the following matters heavily in favour of exercising its discretion to cancel the applicant’s visa because of the seriousness of the applicant’s breach of condition 8107(3) (b).

    The extent of compliance with visa conditions

45. The applicant ceased his employment with the sponsor on the 6 March 2020, a period of more than 5 months prior to the visa being cancelled by the Department. At the time of the hearing the applicant had been unemployed in his field for 13 months. There is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions but, the fact that he had not maintained employment as [an Occupation 1] with an approved sponsor is fundamental to the grant of the visa. Therefore, the Tribunal places a lot of weight to these facts, in favour of cancelling the visa.

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

46. At the time of the delegate’s decision on the 9 September 2020 the applicant expressed several hardships concerns if his visa was cancelled. He had stated that his youngest [child] was studying a [course] at [an institution] in Perth and that [s/he] needed to remain until the end of the year to finish [her/his] course. At the time of the hearing before the Tribunal his [child] had completed the course but was not enrolled any further as the cost of studying [Subject 2] in Australia was too expensive for the family to enrol [her/him].

47. He had told the Department that he was concerned about the wellbeing of his family if they had to return to Iraq. He had stated that the situation in Iraq was dangerous and he had been concerned for the health and wellbeing of his family due to the COVID -19 pandemic and its impact on the country and the economy. He had stated to the delegate that Australia was a haven presently. However, he had expressed to the Department that he does not experience financial hardship due to the loss of employment at the present time as he had adequate income from overseas investments to support himself and his family.

48. The delegate acknowledged that the applicant faced quite a few difficulties if he had to return to his home country with his family but he found the Government had put in place a number of contingency options for visa holders that found themselves in Australia with limited options for returning home. The delegate found that he had the option of applying for a Bridging Visa E to enable him to remain in Australia temporarily until he was able to return to his home country.

49. The Delegate found as follows: “I consider the visa holder may experience some emotional, psychological and other hardship if the visa is cancelled, but he will not be compelled to depart Australia immediately given the current pandemic situation. In light of this information, I give this consideration a little weight against cancelling the visa.”

50. The applicant confirmed that his [child] was no longer studying and had completed the Course in 2020.He said that [s/he] had been working in a [workplace]. He said that [s/he] was still living with him and his wife.

51. He said that if the visa is cancelled, he will not be able to return to Australia to visit his [children] who live here and his grand[child] who is [age] years of age. The Tribunal acknowledges that there will be a hardship to the applicant if he is unable to remain in Australia in the immediate future if the visa is cancelled.

52. He said that it will be hard for him to return to his home country as he will have to start from zero.

53. He did confirm that he has a home in Iraq and that no one lives in the home. He said that when he came to Australia in 2017, he had finalised all his work.

54. He said that there was no opportunity for work in his home country. It was put to him that he did have work when he was in Iraq and he confirmed that he did work but he expected that if her returned to Iraq that there would be very little work to be found.

55. The Tribunal does not have any evidence other than the speculations from the applicant that there may be difficulties in Iraq in finding employment.

56. However, the Tribunal finds that the applicant does have assets in Iraq, community ties to his family being his siblings who live in Iraq and overseas investments that provide him with financial security. There is very little evidence before the Tribunal that the applicant will suffer financial hardship if he returns to Iraq. The Tribunal places a lot of weight in favour of cancelling the visa as a result of the facts as stated in this paragraph.

57. The Tribunal says that in respect of the travel restrictions the Government has put in place a few options for visa holders with limited options of returning to their home country because of the pandemic.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

1. The Tribunal accepts that the grounds for cancellation arose as a result of the economic situation due to the COVID-19 pandemic.

2. His written submissions state that significant weight should be placed in favour of not cancelling his visa in consideration of the circumstances in which the main applicant lost his skilled employment  on account of his employer losing its contracts due to the COVID-19 pandemic and not being able to continue to offer employment to the main applicant. The applicant submits that this was completely outside of the applicant’s control and the delegate should have used its discretion to not cancel the visa in light of the fact that the applicant was stood down from his position due to no fault of his own.

3. The Tribunal accepts that at the time that the applicant’s employment was terminated that it was out of his control. The applicant has been unable to secure employment. The applicant did lodge his contract of new employment on the 29 April 2021.The applicant remained unemployed for a period of 13 months.

4. He had stated to the delegate that he can comfortably support himself and his family, and maintain his health cover with his savings as well as income he receives from a couple of investments that he has overseas until he can find new employment in the near future.

5. At the time of the delegate’s decision in September 2020 he indicated that he was actively looking for employment and that with the Australian Government stimulus package for the [industry], his chances for re-employment or regaining his previous job were increasing.

6. However, at the time of the hearing in April 2021 the applicant did not provide any written evidence to the Tribunal confirming that he had applied for work. He stated that he had applied for a job with 2 companies. He did not provide the Tribunal with any evidence until 10 days following the hearing that he had signed a contract of employment. There is no evidence that the new employer will be approved as a sponsor by the Department.

7. The Tribunal accepts that at the time that the applicant’s employment was terminated it was because of the pandemic.

8. The applicant presented no evidence to the Tribunal on the 22 April 2021 that he had secured employment. The Tribunal gave him a further 10 days to file documents. He lodged a contract of employment on the 29 April in accordance with the time for the extension. There is no evidence before the Tribunal that the new employer has taken any steps or is willing to sponsor him for the Subclass 457 visa.

9. Having regard to all the evidence before it, on balance the Tribunal is not satisfied that the circumstances that led to the cancellation of the applicant’s visa , or that the reasons for and the extent of non- compliance with condition 8107, point to the exercise of the relevant discretion in his favour.

   Past and present behaviour of the visa holder towards the department:

10. The applicant’s evidence is that he has cooperated with the department and provided information when he was requested to do so by the Department. Apart from the breach of the visa conditions there is no adverse information regarding the applicant. The Tribunal weighs those factors in favour of the applicant’s case.

    Whether there would be consequential cancellations under s.140:

11. The applicant’s spouse and child had their subclass 457 visas automatically cancelled. The second and third named applicants did not contribute to the circumstances that led to the applicant’s non-compliance with condition 8107.The Tribunal finds that the secondary visa holders whose authority to remain in Australia would be affected by the cancellation under Section 140 of the Act.

12. The Tribunal gives some weight, to this factor in relation to the exercise of the relevant discretion in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

13. The Tribunal finds that this matter is not relevant to the consideration of the Applicant’s visa as the visa was cancelled due to the failure to comply with condition 8107.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

14. The applicant has his wife [Ms A] born on [Date 1] and his [child] [Ms B] born on [Date 2] as dependents whose visas will also be cancelled.

15. The Tribunal places some weight against cancelling the visa as if the applicant’s visa is cancelled their visa will be automatically cancelled.

16. The applicant is a citizen of Iraq and had stated that he held fears for his family’s safety but did not state why he had those fears at the hearing other than to state that there was corruption in Iraq or words to that effect.

17. The applicant does not have a child who is under the age of 18 years of age and their most recent visa were subject to conditions including condition 8107.

18. The Tribunal acknowledges that the applicant, his spouse and [child] have a strong inclination to remain in Australia. The Tribunal does not have any doubts that if they were to remain in Australia that this would result in a considerable measure of happiness for them. However, the Tribunal needs to balance these factors with the fact that they are non- citizens, so the Tribunal gives these matters little weight.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

19. The Tribunal acknowledges that the applicant does have family ties with Australia as his evidence is that two of his [children] will continue to live in Australia with their partners. His eldest [child] has a [age]-year-old child.

    Any other relevant matters:

20. The applicant submits that he became unemployed because his employer’s business was adversely impacted by the economic downturn caused by the COVID-19 pandemic, and the applicant submitted in writing that the circumstances that led to him becoming unemployed were outside of his control.

21. He is seeking that the Tribunal place considerable weight on those facts so that the visa is not cancelled.

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

    DECISION

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

23. The Tribunal has no jurisdiction with respect to the second and third named applicants.

    Noelle Hossen
    Member