2205267 (Migration)

[2022] AATA 4898

2205267 (Migration) [2022] AATA 4898 (24 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)

CASE NUMBER:  2205267

MEMBER:Noelle Hossen

DATE:24 November 2022

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 24 November 2022 at 2:55pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – engaged in work other than nominated occupation – discretion to cancel visa – COVID-related paid leave – working to meet extra living expenses after wife ceasing work and birth of baby – long residence, intention to continue working in nominated occupation and application for permanent visa in progress – restricted work hours since visa cancelled – members of family unit – automatic cancellation of secondary applicants’ visas with no jurisdiction to review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 347
Migration Regulation 1994 (Cth), Schedule 8, condition 8107(1)(b)

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 5 April 2022 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant was engaged in employment as [an Occupation 1] which was work that was not his nominated occupation according to the conditions of his visa grant. As such he may have breached subclause (1) (b) of condition 8107. 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 before the Tribunal on 12 October 2022 to give evidence and present arguments.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. 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

7. 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

8. 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(1)(b) attached to the applicant’s visa. This condition requires that the applicant must not be employed in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted.

9. The applicant was granted a Temporary Work Skilled (Class UC/subclass 457) visa on the 19 September 2018 which was due to expire on the 19 September 2022.He arrived in Australia [in] October 2018 as the holder of the Visa. His visa was granted on the basis of employment with [Company name] trading as [Business name] as [an Occupation 2].

10. The Department were alerted to the fact that the applicant was working as [an Occupation 1] between January 2021 to April 2021.

11. In the Delegate’s Decision the Delegate noted that the applicant admitted that he was working as [an Occupation 1]. His work was not his nominated occupation according to his conditions of the visa grant. As such the applicant may have breached subclause 1 (b) of condition 8107.

12. The Department issued a Notice of Intention to Consider Cancellation on the 24 March 2022. The Department did not receive a response to the Notice. At the hearing the applicant confirmed that he had sent the Response to the wrong address and therefore the Department did not receive it on time.

13. The applicant does not deny that he breached the conditions by working in an occupation that he was not nominated to do therefore the Tribunal is of the view that there are grounds for the cancellation.

14. 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

15. 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 a compelling need to travel to or remain in Australia:

16. The applicant travelled to Australia to work as [an Occupation 2] for [Company name] from 17 October 2018. He said in his evidence that he had complied with the conditions of his visa until January 2021. He was asked by his employer to take paid leave as the business was doing badly because of the Covid restrictions and lockdowns. At the same time in January 2021 his wife gave birth to their daughter who was born on [Date].

17. His wife had been working and due to the impending birth of the child she was no longer able to help with the family’s financial position. He provided the Tribunal with information regarding the extra costs associated with the birth of the child. They were finding it difficult to meet their living expenses. He [did Occupation 1] as that was the only way that he could sustain his family financially.

18. The applicant has a pending application for Employer Nomination Scheme (subclass 186) which was lodged on the 11 December 2021, relating to a nomination by [Company name] in the occupation of [Occupation 2].

19. Although the applicant has engaged in an occupation that was not his nominated occupation the applicant is planning to work on a full-time basis for [Company name] and continue with his intended purpose of his travel and stay in Australia.

20. The Tribunal places some weight in favour of not cancelling the visa in respect of this consideration.

    the extent of compliance with visa conditions:

21. Save and except for the for the period from January to April 2021 the applicant has complied with the conditions of the Visa. The Tribunal places some weight on those facts in favour of the applicant’s case and not to cancel the Visa.

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

22. The applicant and his wife have remained to live in Australia. His wife has applied for a student visa. The applicant and his wife were having a difficult time, and at the hearing indicated that the child had been sent to India as they were not coping emotionally because of the uncertainty of their position. The applicant has spent a long time in Australia previously as he first arrived in 2009 on a student visa.

23. The applicant provided the Tribunal with an extensive list of statutory declarations from friends and community members that they have formed attachments to and socialised with in Australia.

24. The applicant has already suffered a setback financially as he has to work restricted hours being 20 hours since the visa was cancelled.

25. The applicant and his family will suffer emotional, financial and psychological hardship if they have to return to their home country. The Tribunal places a lot of weight on those facts in favour of not cancelling the visa.

    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:

26. The circumstances in which the ground for the cancellation arose was because of the restrictions placed on individuals due to the lockdowns caused by the covid pandemic. The applicant would not have breached his condition if his work hours had not been restricted because of the pandemic. The Tribunal does find that the ground of cancellation arose because of the problems businesses faced during the pandemic which resulted in a difficult financial situation for the applicant and his wife at that time in January 2021.

27. The Tribunal places some weight on this consideration against the cancellation of the visa.

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

28. There is no evidence before the Tribunal to suggest that the applicant has not cooperated with the Department, so the Tribunal places some weight on those facts against cancelling the visa.

    whether there would be consequential cancellations under s 140:

29. If the visa is cancelled by operation of Section 140 (1) the visas of the 2 dependents of the applicant namely his wife and child will be consequently cancelled.

30. The Tribunal places weight on those facts in favour of not cancelling the Visa.

    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:

31. If the visa is cancelled, the applicant may become an unlawful non-citizen and may be liable for detention. As he has a pending application, any bridging visas associated with these applications may be cancelled although they may be able to apply for other bridging visas whilst awaiting the outcome of those applications.

32. The Tribunal places some weight on that considerations in favour of not cancelling the visa.

    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].)

33. As a signatory to the Convention on the Rights of the Child, Australia has an obligation to consider the bests interests of the child when making a decision.

34. The child is presently in India and she has been separated from her parents already.

35. Therefore, a Decision to cancel the visa will not result in any breaches of the international obligations or agreements to which Australia is a signatory so the Tribunal will not place any weight on this consideration to cancel the visa.

    any other relevant matters:

36. There are no other relevant matters.

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

    decision

38. 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.

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

    Noelle Hossen
    Member