Bobo (Migration)

[2021] AATA 1397

Bobo (Migration) [2021] AATA 1397 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr George Bobo
Ms Ketanai Bobo
Miss Shantel Ropafadzo Bobo
Miss Geordeen Nokutenda Bobo

CASE NUMBER:  2016221

HOME AFFAIRS REFERENCE(S):          BCC2020/1432600

MEMBER:Amanda Upton

DATE OF ORAL DECISION:  17 March 2021

DATE:17 March 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 other applicants.

Statement made on 17 March 2021 at 12:22pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) – Subclass 482 (Temporary Skill Shortage) – non-compliance with visa condition – ceased employment for more than 60 days – left employment because of stress – initial difficulty in obtaining new employment because of COVID-19 pandemic before finding permanent position – new employer will make position nomination application – discretion to cancel visa – potential hardship if cancellation affirmed – members of family unit – decision under review set aside for first applicant, no jurisdiction for other applicants

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (3), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8607(5)

CASES
Rani v MIMA (1997) 80 FCR 379
Tien 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 26 October 2020 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 had ceased working for his sponsoring employer on 7 April 2020 and had not returned to work for that employer for more than 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.

4. The applicant appeared before the Tribunal on 17 March 2021 to give evidence and present arguments. The Tribunal gave its decision on the review at the conclusion of the hearing held on 17 March 2021. The following is the reason for that decision.

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. In this instance condition 8607 attached to the applicant’s visa. At 8607 (5) this condition requires that the visa holder must not cease employment for a period exceeding 60 consecutive days.

8. The applicant confirmed to the Tribunal that he accepted that the grounds for cancellation did exist as he had not been employed for a period of time that exceeded 60 days.

9. There is nothing in the evidence that the applicant gave to the Tribunal that is inconsistent with the existence of grounds for cancellation.

10. The Tribunal finds that the applicant ceased the relevant employment for a period exceeding 60 consecutive days and had breached condition 8607 that attached to his visa.

11. 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

12. 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’.

13. The applicant gave evidence that he first came to Australia on 3 April 2019. His family arrived after him in March 2020.

14. The applicant was granted his Temporary Work (Skilled)(subclass 482) visa on 25 March 2019 for the purpose of undertaking employment in the nomination occupation Social Worker (ANZSCO 272511) with the approved sponsor.

15. The applicant left his employment on 7 April 2020 due to the stress of the position. He told the Tribunal that at this time his intention was to obtain employment with another employer in a similar role but due to the timing of his ceasing employment being at the start of the impact of COVID-19, it was very difficult for him to obtain another job, particularly as he was at the time still living in Victoria.

16. The applicant provided to the Tribunal evidence of having searched for other employment in different states a number of organisations indicated that they were not employing new people due to the pandemic. He was offered a position in the Northern Territory however was unable to take up the role as he was required to fund the move himself and he was unable to afford to do so. The move was also going to be difficult at the time due the restrictions in place.

17. The applicant now has ongoing permanent employment as a Case Worker with the Department of Family and Community Services in New South Wales. He has provided evidence of payment of wages and a Letter of Offer for the position.

    Purpose of the applicant’s travel and stay in Australia

18. [information redacted]

19. The Tribunal considers that the applicant is now in employment that is in the same field as that for which he arrived initially and that when he became unemployed, he made reasonable efforts to obtain further employment in the relevant field. The Tribunal accepts that there have been prevailing conditions outside the control of the applicant that made this difficult. The Tribunal also notes that the applicant was willing to move him and his family to wherever he needed to in Australia to enable him to obtain that employment.

20. The Tribunal finds that although the applicant’s employment with the Department of Human Services in Victoria has ceased, this purpose continues to exist as the applicant has commenced employment with another sponsor, the Department of Family and Community Services in New South Wales. 

21. There is currently no approved nomination for the applicant however the applicant told the Tribunal that the issue of requiring the nomination was discussed in his employment interview and that the employer will make the nomination one being given notice of the Tribunal’s decision. Given the nature of the organisation being a large government body, The Tribunal is satisfied that this will in fact occur.

22. The Tribunal gives significant weight to this factor against cancelling the visa.

    Extent of the applicant’s compliance with visa conditions

23. There are no known instances of non-compliance with visa conditions (including the applicant’s Subclass 482 and bridging visas), apart from the applicant’s non-compliance with condition 8607(5), attached to his visa.

24. The Tribunal notes that the applicant was in breach of his visa condition for the period from 7 April 2020 to when he commenced employment again on 30 November 2020, a period of over 6 months. The Tribunal ordinarily would consider this to be a significant breach of the condition however as discussed above, accepts and takes into account, that the applicant made attempts to be employed and the prevailing conditions made this more difficult than perhaps would ordinarily be the case.

25. The Tribunal give some weight to this consideration against cancellation of the visa.

    Degree of hardship that may be caused

26. The applicant told the Tribunal that his family was now settled in Bega, his wife has been able to find part time work as has one of his daughters. Both his children are at school in the area in Year 9 and 11. He is very happy with his work and considers there are opportunities for advancement in the role that he is in.

27. The applicant is responsible for supporting his two children who are with him in Australia and two other younger children (4 & 6) who currently live with his family in his home country. He also has child support obligations to a young child who lives in Victoria.

28. If the applicant’s visa is cancelled, he will no longer be able to support his family, a position that he has had to deal with for a great period of time last year. He currently pays rent for their house, has a car loan, is required to pay fees for his children to go to school even though it is a public school as well as the usual every day expenses that people have to finance.

29. The applicant wishes to bring his young children to Australia to live with the family and is finding the uncertainty about the visa application to be preventing him from doing this. The whole family is finding this stressful. The applicant stated that if his visa was to be cancelled, he will feel immense guilt about not being able to support his family and his two young children will not be able to come to Australia.

30. [information redacted]

31. The Tribunal accepts that the applicant will suffer some financial and emotional hardship and considers that these are natural consequences of a visa cancellation. The Tribunal places some weight to the considerations raised by the applicant in this regard.

    Circumstances in which the ground of cancellation arose

32. The Tribunal accepts that prior to the cancellation of the applicant’s visa, he was employed as a Social Worker by his sponsor the Department of Human Services, which was a standard business sponsor with an approved nomination for the applicant and that he left this employment for genuine reasons with a genuine intention of finding a relevant position immediately.

33. The Tribunal further accepts that the applicant made reasonable attempts to find appropriate work and was unable to do so for reasons, predominantly beyond his control. The applicant found himself in breach of his visa condition as he was not able to source such work as quickly as he anticipated. The Tribunal accepts that he was genuine in trying to do so.

    Past and present behaviour of the visa holder towards the Department

34. There is no evidence to suggest the visa holder has been uncooperative with the Department or with departmental staff.

35. The Tribunal gives this consideration a little weight against cancelling the visa holder’s visa.

    Whether there would be consequential cancellations under s.140

36. The applicant is married with two dependent children and their visas are subject to consequential cancellation under s.140.

37. The Tribunal accepts the evidence of the applicant with respect to the fact that his family is happy and settled in their current location and that the applicant’s visa being cancelled will cause them emotional stress and financial hardship if the applicant is unable to support them. The Tribunal gives this factor some weight against cancellation of the visa.

    
    
    

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

38. 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).

39. 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.

40. Accordingly, the Tribunal does not give this consideration any weight to these considerations, either in favour of or against cancellation of the visa.

    If the visa is a permanent one, whether the visa holder has strong family, business or other ties in Australia

41. As the applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration, either in favour of or against cancellation of the visa.

    Any other relevant matters

42. There are no other matters before me to consider.

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

    DECISION

44. 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.

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

    Amanda Upton
    Member