Biel (Migration)

[2021] AATA 4659

Biel (Migration) [2021] AATA 4659 (26 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Penelope Maria Biel
Mr Charlton Jonathan Biel

CASE NUMBER:  2108391

HOME AFFAIRS REFERENCE(S):          BCC2020/1924144

MEMBER:Antonio Dronjic

DATE:26 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 26 October 2021 at 3:38pm

CATCHWORDS
MIGRATION – cancellation –Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant breached condition 8507 – applicant managed to find new employment – applicant’s new employer has applied to the Department for approval of a nomination – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 June 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage 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 breached condition 8607(5) of Schedule 8 to the Regulations, as the period during which the applicant ceased employment exceeded 60 consecutive 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.

   Background to the cancellation of the applicant’s visa

4. The decision record of 25 June 2021 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 7 March 2020, the applicant was granted a Subclass 482 visa, to remain valid until 7 March 2022.

   ·The standard business sponsor (SBS) who most recently nominated the applicant to work as a Merchandise Planner was Mayer Pty Ltd (the sponsor).

   ·On 30 June 2020, the applicant ceased her employment with the sponsoring business.

   ·A notice of intention to consider cancellation (NOICC) was issued on 2 December 2020.

   ·On 4 December 2020, the applicant responded to the NOICC. She conceded that she breached condition 8607(5), as the period during which she ceased employment exceeded 60 consecutive days.

   ·On 25 June 2021, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 29 June 2021 for review of the visa cancellation and with her application submitted a copy of the primary decision record. On 20 September 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a video hearing scheduled for 26 October 2021.

6. On 18 October 2021, the applicant’s representative submitted:

   ·Legal submissions dated 18 October 2021.

   ·Applicant’s Statutory Declaration dated 15 October 2021.

   ·Letter from Vimwood Australia Pty Ltd dated 14 July 2021.

   ·Applicant’s Curriculum Vitae.

   ·Email correspondence between the applicant and the Department of Home Affairs.

   ·Medical letter from Guardian Medical dated 22 September 2020.

   ·Letter from Vimwood Australia Pty Ltd dated 5 October 2021.

   ·Letter from Jivaro dated 11 April 2021.

   ·Letter from Myer Pty Ltd dated 23 June 2020.

7. Ms Biel appeared before the Tribunal on 26 October 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

8. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing.

9. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that her visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that she had not complied with a condition of her visa. Specifically, condition 8607, to which her visa was subject, prescribes in 8607(5) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicant.

10. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

11. The applicant is a citizen of South Africa. She is married. Her two sisters and parents are Australian residents and another sister lives in New Zealand. Her husband jointly owns a property in South Africa with his two siblings.

12. Ms Biel came to Australia in March 2018 as a holder of a Subclass 457 visa. She was initially sponsored and nominated to work in Australia as a Merchandise Planner by Target Australia Pty Ltd. She continued to work for this company until March 2019 when the sponsorship and nomination was taken over by Mayer Pty Ltd. Her position at Mayer Pty Ltd was made redundant on 30 June 2020.

13. On 26 July 2020, the applicant’s husband suffered severe heart attack. Ms Biel needed to assist him during this time which impacted her ability to look for employment in Australia. She kept the Department informed of her husband’s medical condition and her efforts to find new employment in Australia. 

14. On 4 August 2021, she commenced a full-time employment as a Merchandise Planner at Vimwood Australia Pty Ltd. According to her understanding, this business is an approved sponsor and they have lodged a nomination application for a Subclass 482 visa with the Department on 20 July 2021. They are still awaiting a decision from the Department on this nomination application.

15. The Tribunal acknowledged that, Ms Sally Coates, the Managing Director of Vimwood Australia Pty Ltd submitted a copy of the letter dated 14 July 2021, previously submitted to the Department with the nomination application and a copy letter dated 5 October 2021 addressing the applicant’s employment.  

16. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that she breached condition 8607 that was imposed on her Subclass 482 visa, as the period during which she ceased employment exceeded 60 consecutive days, and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

17. The Tribunal indicated that it would take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application. It asked the applicant if there was anything else that she wanted to raise with the Tribunal.

18. The applicant stated that she read the submissions prepared by her representative and that he relies on the same reasons as stated in these submissions and her statutory declaration of 15 October 2021.

19. Shortly after the hearing, the applicant’s representative provided a copy of the Department’s sponsorship approval letter related to Vimwood Australia Pty Ltd as evidence that this business was approved as a sponsor on 30 July 2021 for a period of five years.

20. 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

21. 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?

22. 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 8607 is attached to the applicant’s visa. The condition in 8607(5) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 60 consecutive days.

23. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 30 June 2020. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8607(5).

24. 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

25. There are no matters specified in the Act or Migration Regulations 1994 (the 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’.

26. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].

27. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    The purpose of the visa holder’s travel to and stay in Australia

28. The Subclass 482 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

29. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as Merchandise Planner on a temporary basis. The applicant ceased her employment at the sponsoring business on 30 June 2020 as she was made redundant.

30. The applicant decided to remain in Australia. The Tribunal accepts that the applicant managed to find new employment at Vimwood Australia Pty Ltd and commenced her full-time employment as a Merchandise Planner on 4 August 2021. This entity is an approved sponsor and on 20 July 2021 it nominated the applicant for a Subclass 482 visa.

31. Based on the Department’s notification of approval of SBS dated 30 July 2021, the Tribunal is satisfied that the applicant’s current employer has been approved as a sponsor on 30 July 2021 for the period of five years. Based on the Department’s acknowledgment letter of 20 July 2021, the Tribunal is satisfied that the applicant’s current employer nominated the applicant for a position within their business and that the decision on this application is pending.

32. The Tribunal has taken into consideration the fact that the applicant’s visa would have, but for the cancellation, ceased on 7 March 2022. The Tribunal finds that the purpose of the applicant’s stay in Australia is not lost as the applicant has found the new employer that nominated the applicant for a position within the business. This is the consideration that favours the reinstatement of the applicant’s visa.

    The extent of compliance with visa conditions

33. The applicant was made redundant by Mayer Pty Ltd on 30 June 2020 because of trading restrictions imposed by the Government in response to COVID-19 pandemic.

34. The Tribunal accepts that the entire retail industry in Victoria was severely affected by the restrictions imposed by the Government. The Tribunal further accepts that it was very difficult for the applicant to find an alternative employer within a 60-day period willing to sponsor and nominate her for the position within the business. Based on the evidence provided, the Tribunal accepts that the applicant’s husband suffered a severe heart attack in July 2020 which further impacted the applicant’s ability to find employment in Australia.

35. On 4 August 2021, the applicant commenced her full-time employment as Merchandise Planner at Vimwood Australia Pty Ltd. She has continued employment at this business to the present day. There is no evidence before the Tribunal that the applicant previously breached any of the conditions imposed on her visas.

36. This is the consideration that favours the reinstatement of the applicant’s visa.

    Degree of hardship that may be caused to the applicant

37. The Tribunal accepts that the applicant has been living in Australia since March 2018 and that she established considerable personal and employment ties with the Australian community.

38. Based on the evidence before it, including the applicant’s Resume and her oral evidence, the Tribunal is satisfied that the applicant and her husband would be able to re-establish themselves in South Africa, given their education and work experience obtained in Australia and South Africa.

39. Balanced against any potential hardship to the applicant that may result from the visa cancellation is the fact that the applicant came to Australia on a temporary visa, which created no expectation of remaining in Australia permanently.

    Circumstances in which ground of cancellation arose

40. As noted above, the applicant was made redundant on 30 June 2020 as a result of trading restrictions imposed by the Government in response to COVID-19 pandemic. The Tribunal accepts that the circumstances in which the ground for cancellation arose were partially beyond her control; nevertheless, it is in the context of a temporary visa for a specific purpose.

41. The Department did not proceed with the visa cancellation until 25 June 2021. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with an alternative business sponsor who successfully nominated the applicant for the position within its business.

    The impact on any victims of family violence

42. There is no evidence before the Tribunal regarding this matter.

    Past and present conduct of the visa holder towards the Department

43. The Tribunal accepts the applicant’s claims that she has been co-operative with the Department and previously complied with visa conditions.

    Whether there would be consequential cancellations under s.140

44. Whilst the applicant’s husband’s visa was also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from her husband.

    Whether there are mandatory legal consequences to a cancellation decision, whether indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s.46A, s.46B, s.48, s.48A, s.91E, s.91K and s.91P of the Act); and whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s.189, and liable for removal under s.198

45. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow her to remain in Australia. If that is the case, she can depart Australia. Whilst her failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

46. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visa, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

47. The Tribunal is satisfied that the applicant will not be prevented by Public Interest Criterion (PIC) 4013 of Schedule 4 to the Regulations from applying for a temporary work visa once she finds a new employer who is approved as a standard business sponsor and has an approved business nomination in relation to the applicant.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

48. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

49. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

    Other relevant matters

1. The applicant submitted, and the Tribunal accepts, that the applicant’s new employer, Vimwood Australia Pty Ltd will be adversely affected if the applicant is no longer able to work there. The Tribunal acknowledges that the applicant’s new employer has applied to the Department for approval of a nomination for a Subclass 482 visa, nominating the applicant for the position within its business.

2. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa. The Tribunal finds that not cancelling the applicant’s visa is the correct and preferable decision.

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

4. The Tribunal has no jurisdiction with respect to the second named applicant.

   Antonio Dronjic
   Member