Boland-Quinn (Migration) - [2021] AATA 4621

Boland-Quinn (Migration) [2021] AATA 4621 (9 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Liam David Boland-Quinn
CASE NUMBER:  2109062
HOME AFFAIRS REFERENCE(S):          BCC2021/392080
MEMBER:Antonio Dronjic
DATE:9 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 09 November 2021 at 3:40pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ceased employment for 60 days – continuing work as subcontractor using own ABN – attempts to find new sponsor – discretion to cancel visa – long residence and hardship if visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8607(5)
CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1459
COT15 v MIBP (No 1) (2015) 236 FCR 148
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Re Drake (No 2) (1979) 2 ALD 634
Sakhno v MIAC [2007] FMCA 1492
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 July 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).
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 Migration Regulations 1994 (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.
Background to the cancellation of the applicant’s visa
The decision record of 7 July 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 3 March 2020, the applicant was granted a Subclass 482 visa, to remain valid until 3 March 2024.
·The standard business sponsor (SBS) who most recently nominated the applicant to work as a bricklayer was NJ Bricklaying Pty Ltd (the sponsor).
·On 15 January 2021, the applicant ceased his employment with the sponsoring business.
·A notice of intention to consider cancellation (NOICC) was issued on 26 May 2021.
·On 31 May 2021, 25 and 28 June 2021, the applicant responded to the NOICC. He conceded that he breached the condition 8607(5) that was imposed on his visa.
·On 7 July 2021, after considering the applicant’s responses to the NOICC, the delegate proceeded to cancel the applicant’s visa.
The applicant applied to the Tribunal on 15 July 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 16 July 2021, the Tribunal acknowledged the receipt of the review application and invited the applicant to provide material or written arguments that he intends to rely upon.
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 9 November 2021. With the same letter the Tribunal invited the applicant to provide all documents he intends to rely on to support his case by 2 November 2021. Neither the applicant nor his representative provided documentary evidence or submissions prior to the hearing.
The applicant appeared before the Tribunal on 9 November 2021 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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.
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 his visa was cancelled under s 116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8607, to which his 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 further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
The applicant is a citizen of UK, where he completed a trade school and was operating his own bricklaying business. His parents and younger sister live in UK. The applicant gave evidence that, prior to arriving in Australia in March 2000, he sold his house in UK, closed his bricklaying business, and sold all his work tools.
He first came to Australia in September 2013 as a holder of a working holiday visa. His second working holiday visa was granted in September 2014. In January 2018 and January 2019, he travelled to Australia as a holder of a visitors’ visa. He was granted a subclass 482 visa on 3 March 2020 while offshore. His latest arrival to Australia was on 7 March 2020.
The applicant gave evidence that he registered his own Australian Business Number (ABN) in September or October 2013. He had been working under his ABN for various employees in Australia as a subcontractor until he commenced full-time employment at the sponsoring business in mid-March 2020. He was employed as a foreman and was earning approximately $1,000 per week. He stated that he understood the conditions imposed on his Subclass 482 visa.
The applicant confirmed that he ceased working for the sponsoring business on 15 January 2021. He was dismissed from his employment as he was found drinking at work. He gave evidence that he had been looking for alternate sponsor ever since he ceased working at NJ Bricklaying Pty Ltd but was unsuccessful. He continued to work for various businesses in Australia as a subcontractor using his own ABN. The applicant stated that some of the businesses he worked for as a subcontractor promised to sponsor him but decided against it because of the COVID-19 pandemic.
The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached condition 8607 that was imposed on his Subclass 482 visa, as the period during which he 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.
The Tribunal noted that according to the primary decision record, in his response to NOICC, he stated that his attempts to find a replacement sponsor have been unsuccessful, that he has been living and working in Australia on and off for eight years, that his goal is to become an Australian citizen, that if will be difficult to find a job in UK as the construction industry in UK has been ravaged by the COVID-19 pandemic, that he sold his home, vehicle and work tools and equipment in UK and would have to live with his mother if he has to return to UK.
The Tribunal indicated that it would take into consideration the evidence given at the hearing. It asked the applicant if there was anything else that he wanted to raise with the Tribunal. The applicant stated that it will be difficult to find employment in UK as it is a wintertime there and nothing much is happening in the building industry during the winter, that he has no home in UK and that there is a massive shortage of skilled tradies in Australia.
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
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?
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.
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 15 January 2021 and 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).
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
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 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].
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
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. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a bricklayer on a temporary basis at NJ Bricklaying Pty Ltd. The applicant ceased his employment at the sponsoring business on 15 January 2021.
The applicant decided to remain in Australia as a holder of a bridging visa E. He claims in his evidence that, ever since he ceased working at NJ Bricklaying Pty Ltd, he tried to find alternate sponsor but was not successful. He continued to work in Australia for various businesses as a subcontractor, using his own ABN.
Based on the evidence before it, including the applicant’s oral evidence, the Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian business which is an approved standard business sponsor and which has successfully nominated the applicant for a position within the business.
The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 482 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists. The Tribunal gives significant weight to this consideration.
The extent of compliance with visa conditions
The ground for cancellation arose when the applicant ceased working with his sponsoring employer in January 2021. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that nominated him for the position of an electrician within 60 days. This was contained in a condition of his visa, which stated if the employment ceases it ‘must not exceed 60 consecutive days’.
The Tribunal notes that the Department did not proceed with the visa cancellation until 7 July 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 Tribunal finds that the applicant’s failure to commence employment with a new business that successfully nominated the applicant to work a bricklayer in the more than nine months since the original cessation of employment represents a significant breach of condition 8607. The Tribunal gives significant weight to this consideration.
Degree of hardship that may be caused to the applicant
In his evidence, the applicant stated that that he has been living and working in Australia on and off for eight years, that his goal is to become an Australian citizen, that if will be difficult to find a job in UK as the construction industry in UK has been ravaged by the COVID-19 pandemic, that he sold his home, vehicle, work tools and equipment in UK and would have to live with his mother if he has to return to UK. He further stated that it will be difficult to find employment in UK during the wintertime and that he has no home in UK.
The Tribunal accepts that the applicant has been living in Australia and that he may have established personal and social ties with the Australian community.
The Tribunal gives limited weight to the applicant’s claim that if will be difficult for him to find a job in UK as the construction industry in UK has been ravaged by the COVID-19 pandemic. The Tribunal accepts that the applicant may face some financial hardship because of the cancellation decision.
The Tribunal has taken into consideration the applicant’s evidence that he is qualified bricklayer and has been operating his own bricklaying business in UK prior to his arrival in Australia in March 2000. The Tribunal is satisfied that the applicant would be able to re-establish himself in UK, given his education and work experience obtained in Australia and UK.
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
The applicant lost his job in January 2021. He was dismissed from his employment as he was found drinking at work. According to the primary decision record submitted by the applicant with his review application, he claims that he used alcohol as a coping mechanism for his mental health since his time in the British army. He further stated that his great uncle died after contracting the COVID-19 virus, which affected him emotionally.
While acknowledging that the applicant’s mental health may have been affected by those events, on the evidence before it, the Tribunal finds that the ground for cancellation arose due to the visa holder’s actions.
The impact on any victims of family violence
There is no evidence before the Tribunal regarding this matter.
Past and present conduct of the visa holder towards the Department
The Tribunal accepts the applicant’s claims that he has been co-operative with the Department and previously complied with visa conditions.
The Tribunal give this consideration some weight against cancelling the visa.
Whether there would be consequential cancellations under s 140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s 140 of the Act. The Tribunal gives no weight to this consideration.
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
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 him to remain in Australia. If that is the case, he can depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
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 visa but not others. Regulation 2.12 of the Regulations prescribes the classes of visa, which do not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.
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 he finds a new employer who is approved as a standard business sponsor and has an approved business nomination in relation to the applicant.
The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

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).
The Tribunal is satisfied that in the circumstances of this case, cancellation would not lead to removal. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.
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. Based on the evidence before it, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements.
Other relevant matters
The applicant stated in his evidence that there is a massive shortage of skilled trade workers in Australia. No documentary evidence in support of this claim was submitted to the Tribunal. For that reason, the Tribunal is unable to give any weight to this consideration.
Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.
Antonio Dronjic
Member