Berning (Migration)

[2018] AATA 4934

Berning (Migration) [2018] AATA 4934 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wade Berning

CASE NUMBER:  1709873

HOME AFFAIRS REFERENCE(S):           BCC2017/914204

MEMBER:Amanda Mendes Da Costa

DATE:25 October 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 25 October 2018 at 2:52pm

CATCHWORDS

MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment – previous sponsor’s business closed down – amendment in ANZSCO occupations – new nomination lodged and approved – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 May 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant ceased employment with his sponsor on 30 September 2016 and remained in breach of visa condition 8107 of his visa for in excess of 90 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. The applicant appeared before the Tribunal on 18 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ferdinand Meneguzzo.

4. The Tribunal has also considered written submissions provided by the applicant, dated 15 October 2018.

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

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?

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

9. The applicant’s Subclass 457 was granted on 25 November 2014. He subsequently commenced employment in his nominated occupation of landscaper with his previous sponsor. His employment ceased on 30 September 2016 when his employer closed down its business and terminated his employment. The applicant conceded the grounds for cancellation of his visa under s.116(1)(b) existed as outlined in the NOICC (notice of intention to consider cancellation) as more than 90 days had expired after his employment with his sponsor ceased and he remained in breach of condition 8107 of his visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) 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

11. 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

12. The applicant is a South African national, who came to Australia in 2011 for the purpose of employment in the horticulture industry.  He has had employment with three companies in Australia and has found work through his own skill and endeavours.

13. Mr Berning has a degree in horticulture, conferred by the Natal University in Johannesburg.  On completion of his university education, he was employed by the Johannesburg City Council as a landscaper in its parks and gardens for approximately 20 years.  He then worked for several years at the Johanesburg Zoo where he was responsible for developing habitat simulations for several of the animal species there and also for zoos in other countries.

14. After arriving in Australia he was initially employed in Canberra for 9-10 months and then moved to Western Australia where he worked in the horticulture industry, undertaking large landscaping projects.

15. Upon the grant of his Subclass 457 visa, the applicant was employed by his previous sponsor as a landscaper, predominantly in northern Western Australia although one of his projects involved the construction of a gold course on Rottnest Island off the coast of Perth.   In September 2016 he received a text message from his then employer, informing him that it would be closing its business; that the applicant’s services were no longer required and that he would be required to find another sponsor.

16. The applicant subsequently was offered employment with two prospective employers - Mandurra City Council in Western Australia and Green Corp Group Pty Ltd trading as Plantmark (Plantmark), in Victoria.  The applicant accepted the position with the latter company and relocated to Melbourne to commence his new employment.  The applicant’s employer referred him to a migration agent (not his current one) to assist him with his migration status.  The applicant provided the agent with what he believed was all the required documentation for the purpose of a fresh nomination application for Plantmark.  He was subsequently advised by the agent that there was one outstanding document to be provided by the employer.

17. The applicant believed that the agent had lodged all required documentation and was advised that everything was in order and that his sponsor had instructed this agent to lodge the nomination application in February 2017.  The applicant understood he would be able to work for Plantmark.  Consequently, the applicant was shocked when he received an email from the Department on 18 April 2017, advising that his visa was liable to be cancelled.

18. The applicant told the Tribunal that a new nomination application was lodged for the applicant by Plantmark on 11 April 2017, for the occupation of Nurseryperson ANZSCO Code 362411.  The applicant told the Tribunal that Plantmark became an approved business sponsor on August 2017.

19. On 18 April 2017 the Australian government announced the abolishment of the Subclass 457 visa and amendments were made to the ANZSCO occupation lists.  Due to these changes, Plantmark lodged a new nomination application for the applicant on 4 May 2017, for the occupation of Landscape Gardner ANZSCO Code 362213.

20. This nomination was subsequently approved by the Department on 1 May 2018.

21. The applicant submitted that he had remained in Australia for the purpose of skilled employment in the occupation of Landscape Gardner.  He said he has signed an employment contract and had been working for Plantmark for the past two years.  He submitted that if his current sponsor, Plantmark, were to lose his skills and expertise, they would not be in a position to continue with the company’s growth and the training of six Australian employees.

22. Mr Berning told the Tribunal that his current position involved him  presenting talks to those involved in the landscaping industry and also problem solving for customers of Plantmark.  He also provided lectures to University and TAFE students on a regular basis - providing advice on growing and planting techniques and information regarding the use of weedkillers and the means of avoiding contamination of underground water storage tanks.

23. The Tribunal has been provided with written references dated 19 October 2018, from Miranda Brown, the Human Resource Manager and Simon Lindsay, the general manager of Plantmark.  Each of these references attests to Mr Berning’s valued contribution to the company’s business.  In her reference, Ms Brown opines:

    Plantmark is the leading suppliers of commercial landscape and garden industry in Victoria New South Wales and Queensland and has been so for over 30 years

    Wade has become an integral part of the Plantmark team at our Wantirna and Monbulk sites in Victoria. His ability to provide support and relevant information pertaining to plant requirements to suppliers and customers is an invaluable resource to our business.

    In particular, Wade’s knowledge of plants in their preparation of usage in the commercial landscape palette is a distinctive quality in the nursery industry.

    Customer service relating to plant usage; pest and disease identification and problem solving; specific pruning techniques and the promotion of healthy growth through a feeding/fertilising program are a few of Wade’s proficiencies.

    Wade has been successfully liaising with local councils and industry partners ranging from soil to allied and green-life products on Plantmark’s behalf.

    Wade’s expertise has been instrumental in providing information and guidance to educational institutions in the nursery industry such as Swinburne University, Holmesglen, the Gordon Institute and Chisholm Institute, ensuring the next generation of landscapers and horticulturalists have an opportunity to be exposed to a commercial production nursery.

24. Mr Lindsay opines:

    Wade’s 20 years of experience in the commercial landscape of growing, maintaining Australian native trees and shrubs in his country of origin, South Africa, are invaluable to a business such as ours as it is a rare and unique skill set that takes many years to acquire.

    Wades position within Plantmark now sees him directly responsible for training 6 staff, imparting his vast experience and knowledge of the niche industry so that we may continue to develop our current and future employees. He is also influential on the mentoring staff across Plantmark’s 6 located across VIC, NSW and QLD.

25. The Tribunal accepts the evidence of the applicant and his two referees.

    The extent of compliance with visa conditions

26. Apart from the applicant’s non-compliance with condition 8107 of his visa, there are no known instances of non-compliance with visa conditions.

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

27. Mr Berning is single and has an adult child living in South Africa.  Although he gave no evidence regarding hardship that may be caused if his visa was cancelled, the Tribunal accepts that the applicant would experience difficulties  in obtaining further employment and re-establishing his personal life after seven years in Australia, if he were compelled to return to South Africa.

28. The Tribunal heard evidence from Mr Meneguzzo who is the applicant’s cousin.  He attested to the applicant’s close relationship with Mr Meneguzzo, his brother and parents, who have been living in Australia since 1978.  The Tribunal accepts this evidence.

    Circumstances in which the ground of cancellation arose

29. The Tribunal accepts that cancellation of the applicant’s visa was due to him ceasing employment with his previous sponsor and not returning to such employment for in excess of 90 days, which was in breach of condition 8107 of his visa.  The Tribunal is satisfied that the termination of his employment was due to the financial difficulties experienced by his previous employer and not any act of malfeasance or poor performance of his duties by the applicant. The Tribunal is further satisfied that the applicant is now the subject of an approved nomination for the position of Landscape Gardner with Plantmark.

    Past and present behaviour of the visa holder towards the Department

30. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

31. There are no persons whose visa would be subject to consequential cancellation under s.140.

    Whether there are mandatory legal consequences

32. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained.  There is no suggestion that he will be detained indefinitely.  The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to an exclusion period in relation to some future visa applications.  There are no provisions in the Act which prevent the applicant from making a valid application without the Minister’s intervention.

    International obligations, including non-refoulement

33. There is no evidence and the applicant does not claim that Australia’s non-refoulement obligations would be breached as a result of the cancellation of the applicant’s visa.

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

    DECISION

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

    Amanda Mendes Da Costa
    Member