Borgia (Migration)
[2024] AATA 3565
•18 September 2024
Borgia (Migration) [2024] AATA 3565 (18 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Matteo Borgia
REPRESENTATIVE: Mr Chetan P Singh (MARN: 1805690)
CASE NUMBER: 2410404
HOME AFFAIRS REFERENCE(S): BCC2022/1343512
MEMBER:Alison Mercer
DATE:18 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 482 - Temporary Skill Shortage visa.
Statement made on 18 September 2024 at 4:05pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage – non-compliance with condition of visa – ceased working with nominating employer for more than 60 days – circumstances beyond control of visa holder – COVID downturns and restrictions – long period without work – delays in submission of nomination application by new employer – new nomination approved before visa cancelled – ongoing work and value to new employer – financial and personal hardship – skills priority list – mandatory legal consequences – legislation and policy amendment – relevant period now 180 days – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8607(5)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 30 April 2024 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 (Cth) (the Act).
The applicant was granted a subclass 482 visa on 24 January 2022, which was valid until 24 January 2026.
On 4 March 2024, the Department of Home Affairs (the Department) sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant, advising him that he appeared to have breached a condition of his visa by ceasing work with his original nominating employer for more than 60 days, based on advice received from the applicant’s previous agent on 30 March 2022 that the applicant would cease work with his nominating employer on 3 April 2022. The applicant was invited to provide a response.
On 22 March 2024 and 13 April 2024, the applicant responded to advise that a new employer, Wine Bay Pty Ltd, had lodged a nomination of him on 12 April 2024. He asked that his visa not be cancelled in order to enable him to transfer his visa to this new employer.
On 30 April 2024, the delegate cancelled the visa under s 116(1)(b) on the basis that the applicant had breached 1 of the conditions of his subclass 482 visa by ceasing employment as a Chef with his nominating employer, Ciavanni Group Pty Ltd, for more than 60 days. The delegate found a ground for cancellation was established and found the reasons in favour of cancellation outweighed those against cancellation, given that there was no evidence that the applicant had tried to find a new employer within 60 days of ceasing his original employment.
The Tribunal received a review application from the applicant on 3 May 2024. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Chetan Singh, as his representative and authorised recipient for correspondence. The applicant also provided evidence of a Department approval of Wine Bay Pty Ltd’s nomination of the applicant for the position of Chef, dated 29 April 2024.
On 5 August 2024, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 30 August 2024. They were requested to provide any additional material in support of the applicant’s case by 23 August 2024.
On 12 August 2024, the applicant and his agent indicated that they would attend the hearing, and that they wished the Tribunal to also take evidence from Mr Frank Ciorciari, described as employer/business owner.
On 24 August 2024, the Tribunal received written submissions, a letter of support from the applicant’s employer, and a written statement from the applicant.
The written submissions from the agent made the following points:
…
We write a prehearing submission on behalf of Mr. Matteo Borgia (Case number: 2410404), who seeks a review of the decision of the Department of Home Affairs to cancel his Temporary Skill Shortage (TSS) visa (subclass 482) on 30 Apr 2024 with a hearing scheduled on 30 Aug 2024.
This submission will set out the following information –
1. Relevant Facts & timeline
2. Applicable Legislation & Policy
3. Home Affairs’ Cancellation Policy and Approved Nominations
4. Grounds of review
·Conditions out of Visa Holders’ Control
·Relevant Legislation & policy Changes directly affecting the Visa condition in question (8607)
·Best Interest of Australian Business & Economy
·Further restrictions on Visa Approval
·Personal & Financial Hardship
5. Conclusion
6. Supporting Documents for Mr. Borgia’s Argument
7. References
Relevant facts & timeline
The following table shows the relevant timeline (dates) and essential information pertinent to upcoming hearings:
Date
Events
24 Jan 2022
Subclass 482 granted
3 April 2022
Ceased employment with sponsor
April 2022
Received new employment offer
4 March 2024
NOICC issued
12 April 2024
New nomination lodged
13 April 2024
Department notified
29 April 2024
Nomination approved
30 April 2024
Visa cancelled
Decision appealed with AAT
23 August 2024
Response to hearing attendance sent to AAT
23 August 2024
Further supporting evidence and submission submitted to AAT
30 August 2024
Hearing scheduled
Applicable Legislation & Policy
Mr. Borgia’s Visa was cancelled under Section 116(1)(b) of the Act for noncompliance with condition 8607 attached to cancelled Visa subclass 482.
The relevant Legislation and Policy have been amended substantiallyi as the Govt recognizedii several issues, including compliance with relevant Visa condition as indicated in the Govt’s Migration Strategy 2023 paper and the Explanatory memoranda of the relevant legislative change. The changes are as follows -
8607: at the time of Cancellation (pre 1St July 2024)iii
8607(2) Unless subclause (3) applies, the holder must:
(c) if the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder is in the Short-term stream or Medium-term stream and the person who nominated the nominated occupation was not an overseas business sponsor at the time the nomination was approved work only in a position in the person's business or a business of an associated entity of the person.
…
(5) If the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days
8607: Current (effective of 1st July 2024)iv
(5) The holder may cease to work in accordance with subclauses (1) and (2) for a period, but:
(a) any such period must not exceed 180 consecutive days; and
(b) the total number of days on which the holder does not work in accordance with subclauses (1) and (2) must not exceed 365 during the visa period for the holder’s visa
Home Affairs’ Cancellation Policy & Approved Nominations
It is crucial to highlight that when Mr. Borgia's Visa was revoked, he had an approved Nominationv. Our previous observations suggest that the Department typically refrains from cancelling Visa Subclass 482 under 116(1)(b) if the nominee has a pending TSS Nomination with a different approved Sponsor.
Grounds of review
The applicant argues that the tribunal should rule in his favor for several reasons listed below.
Conditions out of Visa Holders’ Control
The applicant received a job offer from Wine Bay Pty Ltd shortly after leaving their previous employment, and their employer had engaged a Registered Migration Agent to submit a new Nomination. However, there were multiple delays in submitting a valid nomination within the 60-day period, as evidenced by the employer, who will provide further proof at the hearing. The employer acknowledges their errorvi.
Ultimately, a new nomination was submitted and approved before the visa was cancelledvii. The applicant took all necessary steps to secure an approved nomination to avoid breaching their visa conditions.
Lack of legislation Protections and recent changes to Legislation and Policy Change
The government has recognized the 60-day period as a concern in various inquiries, including the latest Nixon Review. It was recommended and incorporated into the Government’s Migration Strategyviii, issued on December 11, 2023. As mentioned previously, this was revised on July 1, 2024.
Best Interest of Australian Business & Economy
Presently, Mr. Borgia is employed at Wine Bay Pty Ltd, operating under the trading name Riserva, a fine dining restaurant located in the heart of Sandringham. The applicant plays an essential role in the business, with the employer significantly depending on his presence. The employer has already invested in sponsorship and nomination fees, which have been approved, including government and representative fees.
Further Visa restriction
The cancellation under s116(1)(b) contributes to a 3-year ban (PIC4013) on multiple offshore temporary visa applications, including Subclass 482. If the applicant chooses to depart and submit another Subclass 482 application with an Approved Nomination from WINE BAY PTY LTD, he would be unable to meet the requirements of PIC 4013ix and subclause 482.222(b)x. This places both the Australian business and the applicant in a difficult predicament.
Personal & Financial Hardship
The applicant has spent considerable time within the Australian community and has planned to reside here for a long time. The TSS Visa also provides a Transitional Pathway to permanent residency, which has been expanded recently by the Australian Government. The applicant made every effort to comply with visa conditions, including securing new employment. However, certain factors beyond the applicant’s controlxi led to a breach of visa conditions and the subsequent cancellation of the visa. This cancellation not only disrupts the applicant's personal plans but also causes financial hardship, as he incurred expenses for visa applications and subsequent unavoidable, uncontrolled processes.
Conclusion
In conclusion, this submission respectfully requests that the Tribunal consider setting aside the Department's decision and reinstating the applicant's Temporary Skill Shortage visa (subclass 482) based on the following grounds:
·The breach was beyond the control of the Visa Holder.
·The visa cancellation occurred subsequent to the approval of the Nomination.
·The cancellation will result in considerable hardship to the Visa Holder, and there exist compassionate circumstances justifying the reinstatement of the visa.
·This submission is supported by the provided evidence referenced below, and further oral evidence will be provided by the Applicant and his Employer to substantiate this application.
We express our gratitude to the Tribunal for granting us the chance to submit this submission and other supporting materials for the upcoming hearing.
…
In his statement dated 22 August 2024, the applicant made the following points:
…
I am writing to provide a formal statement regarding my compliance with visa conditions as part of the ongoing tribunal process.
I have consistently made every effort to comply with all visa requirements set by the Department of Home Affairs. After leaving my previous job, I promptly found a new employer and informed them of the need to notify the relevant authorities to ensure my visa conditions were met.
My Nomination was submitted in April 2024. Despite the timely submission, there was an unforeseen delay in the processing of my application. This delay was beyond my control and not due to any fault of my own. Once the issue was identified, my employer and I took immediate action to resolve it.
My employer has fully supported the visa transfer process, including making a significant financial commitment to ensure compliance with all legal and immigration requirements.
I respectfully request that the tribunal considers my genuine efforts to meet visa conditions and the unexpected circumstances that caused the delay in the application process. My continued stay and employment in Australia are very important to me, and I remain committed to fulfilling all necessary obligations.
Thank you for your time and consideration.
…
Finally, the letter dated 13 August 2024 from Mr Francesco Ciorciari, director of Tranquillo Pty Ltd (trading as Riserva Wine Bar) and Wine Bay Pty Ltd (trading as Baia di Vino), makes the following points:
…
I am writing to provide formal support and clarification regarding the visa dispute hearing for Matteo, who has
been employed as a Chef de Partie at Baia di Vino & Riserva Wine Bar, two busy Mediterranean restaurants
located in Sandringham and Malvern. Matteo plays a vital role in our culinary team and his experience and knowledge is integral to the successful operation of our businesses.Matteo plays a key role in managing our kitchen, ensuring that our high standards are consistently met. His
expertise in Mediterranean cuisine, combined with his dedication and leadership, has been indispensable to
our restaurant’s success. His absence would significantly disrupt our operations, affecting not only our service
quality but also the livelihood of our other employees.Matteo requested a transfer of his visa to our restaurant Riserva Wine Bar. We engaged with his immigration
agent from Glover Migration to begin the transfer process as we were committed to Matteo and ensuring his
Visa remained valid in Victoria. The delay occurred due to an oversight during the challenging period of the COVID-19 lockdown in June/July 2022. The transfer application process was inadvertently stalled due to a missed payment, an error that was neither intentional nor a reflection of Matteo’s or our commitment to
compliance with immigration requirements.Upon a notification from Home affairs in April 2024 of his expired visa, the nomination for Matteo was finalised and was approved on 1st May 2024 for our restaurant Baia di Vino. However, shortly thereafter, the
Department of Home Affairs cancelled his visa, a decision that has placed considerable stress on Matteo and
uncertainty towards his future in Australia. To facilitate the nomination, we engaged Glover Migration, to
whom we paid $3,751.42 for the application submission. This financial investment reflects our commitment to
securing Matteo’s position within our team.We respectfully request that the tribunal considers the critical importance of Matteo to our business and the
circumstances surrounding the delay in the Nomination Transfer application. We believe that his continued
employment is essential to the ongoing success of our restaurants.
…The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 30 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his current employer, Mr Frank Ciorciari, and legal submissions from his agent.
The applicant told the Tribunal that he arrived in Australia in 2019 as the holder of a Working Holiday visa and found work in the hospitality industry. However, in 2020, the COVID19 pandemic occurred and he and the industry struggled. The employer he was working for at that time was badly affected, and the applicant lost work. He told the Tribunal that he was fortunate to have cousins in Melbourne with whom he was able to move in, and who supported him financially for the periods where he was unable to work. The applicant said that he contributed to the household by cooking for everyone and used this time to learn English intensively.
The applicant confirmed that his original subclass 482 visa sponsor in 2022, coming out of the COVID19 lockdowns in Melbourne, was Ciavanni Group Pty Ltd. This company operated a pizzeria in Narre Warren. The applicant told the Tribunal that he helped establish this business with the owners. He set up the kitchen, developed the menus and worked in the business as the Head Chef. In response to the Tribunal’s query, the applicant said that he left this employer voluntarily in April 2022 as he wanted to gain experience in a larger and more sophisticated restaurant. The applicant said that he was aware that he had 60 days to find another employer to take over sponsorship of his visa. He told the Tribunal that he was in discussions with several potential employers, including Mr Ciorciari, whom he knew through his cousins. The applicant said that he was trying to assess the best option for him to gain the experience he needed and secure stable employment. However, many businesses were still affected by COVID19 downturns and had limited operations and/or lacked capacity to employ him on a full time basis. The applicant said that he was also weighing up whether he should stay in Australia or return to Italy. Ultimately, he decided that his life was in Melbourne due to his connection with his cousins here, and their support of him.
The applicant told the Tribunal that he was in negotiations with Mr Ciorciari in 2022 about working for the latter’s restaurants, but for reasons that the applicant was not fully aware of, this did not proceed at that time.
The applicant’s agent told the Tribunal that he had spoken with the applicant’s agent at the time, who told him that she did prepare paperwork in 2022 for Mr Ciorciari’s business to be approved as a sponsor and nominate the applicant, but it did not proceed for reasons that were not entirely clear.
Mr Ciorciari himself told the Tribunal that to the best of his memory, he was keen to employ the applicant as a Chef in 2022 but his business partners were less so, as the business was still recovering from the significant downturn caused by the COVID19 pandemic and associated lockdowns in Melbourne. Their collective decision was that they were not in a financial position to proceed with nominating the applicant at that time. However, when the applicant got back in touch in 2024 (having received the NOICC), Mr Ciorciari’s business was in a position to offer him full time employment as a Chef and they proceeded with the nomination of him. This was approved on 29 April 2024, the day before the applicant’s subclass 482 visa was cancelled. The applicant’s agent noted that this was unusual in his experience, as the Department usually elected not to cancel a persons’ visa if they had found a new sponsor and nominator, and the nomination in this case had actually been approved at the time that the decision to cancel the applicant’s subclass 482 visa was taken.
The applicant told the Tribunal that he started work for Mr Ciorciari’s restaurant Baia di Vino as soon as its nomination of him was approved, and had been there full time since that time. He was the second Chef at the restaurant, responsible for the pasta dishes. He had permission to work on his bridging visa. Once he started working again, he rented his own place but remained very close to his cousins. He confirmed that his sister and parents remain in Italy, and noted that his mother contracted COVID badly during the pandemic but fortunately recovered. He said that it was a very stressful period as he was unable to leave Australia to see his family in Italy, and vice versa.
The applicant said that he was shocked when he got the NOICC and that he and Mr Ciorciari acted as quickly as they could, with the applicant’s current agent assisting, to rectify the situation. The applicant told the Tribunal that his reason for obtaining a subclass 482 visa in the first place was to follow a pathway to permanent residence, if possible, and that he still hoped to be able to do this, and ultimately to open his own restaurant. However, he was committed to working for his Australian employer as the holder of the subclass 482 visa, if the cancellation was reversed.
Mr Ciorciari confirmed that he was first introduced to the applicant in or about March 2022 but a nomination did not proceed at that time – although it was discussed – due to the financial situation of the business, which was emerging from the COVID19 lockdowns in Melbourne. Mr Ciorciari told the Tribunal that since emerging from the COVID19 period, he and the business were desperate to get staff, as most temporary residents had left the country during the pandemic, but financially, he and his partners could not commit to nominating the applicant in early 2022. However, by 2024, they were in a position to do so.
Mr Ciorciari said that the hospitality industry was still experiencing significant shortages of experienced staff, including Chefs, and he emphasised how much the applicant had contributed to fostering customer loyalty with his authentic Italian pasta dishes. Mr Ciorciari said that both his restaurants were located in the suburbs of Melbourne, with less foot traffic than a CBD venue, so they needed to woo and retain loyal local customers. The applicant had contributed to this significantly, and would be difficult to replace, especially given the continuing shortage of experienced Chefs. Mr Ciorciari said that the applicant was also a person of good character and was hardworking. He noted that his business had sponsored 1 other person, who was now a business partner in 1 of their other restaurants, and that this demonstrated that they sponsored people who could really make a contribution. Mr Ciorciari expressed the view that the applicant deserved to have his visa restored and to be able to continue to work for Baia di Vino. He also observed that in Australia, hospitality roles were not regarded as professional careers, but more as part time employment while people were studying, yet in Europe (especially Italy) being a Chef was a highly regarded profession, which someone would stay in for life, and this was the attitude of the applicant. He noted that this was also why so many Australian hospitality businesses relied on overseas staff.
The applicant’s agent noted that the applicant was on the verge of securing a new nomination in March-April 2022 with Mr Ciorciari, but this did not proceed for reasons beyond the applicant’s control. However, a nomination by Mr Ciorciari’s business was approved before the Department cancelled the applicant’s visa. The agent further noted that Chefs were still listed as being in shortage throughout Australia in the most recent Skills Priority List issued by the government. He submitted that if the applicant were to go offshore to make a new subclass 482 visa application, he would be affected by the criteria in Public Interest Criterion 4013 (which imposed temporary bars of 3 years on people returning if they had had a visa cancellation in Australia) and was also prevented from making a further application onshore by s.48 of the Act.
The applicant’s agent further submitted that it had been recognised that the 60 day timeframe in condition 8607 (as it applied when imposed on the applicant’s visa in 2022) was inadequate and, as of 1 July 2024, that period was now 180 days. The agent argued that this indicated a recognition by the Department that it was unrealistic and/or unfair to expect a subclass 482 visa holder to find a new employer and secure a new nomination within 60 days of ceasing employment with their original employer.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF LAW, 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?
s 116(1)(b) - non-compliance with conditions
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 8607 was attached to the applicant’s visa. At the time that it was attached (and at the time the NOICC was issued), this condition required as follows [Tribunal’s emphasis in bold font]:
...
8607
(1) The holder must work only in the occupation (the nominated occupation) nominated by the nomination identified in the application for the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder.
(2) Unless subclause (3) applies, the holder must:
(a) if the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder is in the Labour Agreement stream—work only for the person who nominated the nominated occupation; or
(b) if the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder is in the Short-term stream or Medium-term stream and the person who nominated the nominated occupation was an overseas business sponsor at the time the nomination was approved—work only in a position in the person's business; or
(c) if the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder is in the Short-term stream or Medium-term stream and the person who nominated the nominated occupation was not an overseas business sponsor at the time the nomination was approved—work only in a position in the person's business or a business of an associated entity of the person.
(3) This subclause applies if:
(a) the nominated occupation is an occupation specified by the Minister in an instrument made under subregulation 2.72(13); or
(b) the holder is continuing to work for a person for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.
(4) Subject to subclause (6), the holder must commence work within:
(a) if the holder was outside Australia when the visa was granted—90 days after the holder's arrival in Australia; or
(b) if the holder was in Australia when the visa was granted—90 days after the holder's visa was granted.
(5) If the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.
(6) If the holder is required to hold a licence, registration or membership (an authorisation) that is mandatory to perform the nominated occupation in the location where the holder's position is situated, the holder must:
(a) hold the authorisation within:
(i) if the holder was outside Australia when the visa was granted—90 days after the holder's arrival in Australia; or
(ii) if the holder was in Australia when the visa was granted—90 days after the holder's visa was granted; and
(b) continue to hold the authorisation while the holder is performing the occupation; and
(c) notify Immigration, in writing, as soon as practicable if an application for the authorisation is refused; and
(d) comply with each condition or requirement to which the authorisation is subject; and
(e) not engage in work that is inconsistent with the authorisation, including any conditions or requirements to which the authorisation is subject; and
(f) notify Immigration, in writing, as soon as practicable if the authorisation ceases to be in force or is revoked or cancelled.
…
It is not disputed that the applicant ceased work for his original nominating employer, Ciavanni Group Pty Ltd, on 3 April 2022. The Department was notified of this in advance, on 30 March 2022 by the migration agent engaged by the applicant at that time.
Nor is it disputed that the applicant was not the subject of an approved nomination by his new employer, Wine Bay Pty Ltd, until 29 April 2024, more than 60 days after the applicant ceased employment with Ciavanni Group Pty Ltd on 3 April 2022.
Given this, the Tribunal finds that the period during which the applicant ceased work with his original nominating employer exceeded 60 days by the time that the NOICC was issued on 4 March 2024, and thus the applicant did breach 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 visa should be cancelled.
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.’
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
The applicant was originally granted a subclass 482 visa in early 2022 to work as a Chef, to fill a labour market shortage for an Australian business (at that time, the pizzeria operated by Ciavanni Group Pty Ltd). Since May 2024, the applicant has been working in this capacity for another Australian employer, Wine Bar Pty Ltd, and one of the directors of the business provided evidence at hearing that the applicant is a valued employee who has contributed to the business since starting his employment, and that he would struggle to replace the applicant if the applicant was not able to continue. The Tribunal notes that this is supported by the most recent Australian government National Skills Priority List (issued in 2023) which shows Chefs as being in short supply throughout Australia, including Victoria.
The Tribunal also notes that the current employment arrangement between the applicant and Wine Bar Pty Ltd is in line with the aims of the subclass 482 visa and nomination program, which is to enable Australian employers to fill roles which cannot easily be filled locally. The Tribunal accepts that it would be disruptive to Mr Ciorciari’s business if he had to now attempt to replace the applicant.
The Tribunal further notes that the applicant has now resided in Australia for approximately 5 years, including through the COVID19 pandemic years 2020 – 2022 in Melbourne, which was subject to significant lockdowns affecting (amongst other things) the applicant’s ability to travel home to Italy and to find employment in hospitality in Melbourne.
The Tribunal gives these factors some weight in favour of not cancelling the applicant’s visa.
Extent of compliance with visa conditions
It is not disputed that the applicant failed to comply with condition 8607 which was imposed on his subclass 482 visa, as he did not secure new employment and an associated nomination for more than 60 days after he ceased with his original nominating employer on 3 April 2022.
As discussed with the applicant and his agent at hearing, the period during which the applicant was not employed nor the subject of an approved nomination was just over 2 years (3 April 2022 to 29 April 2024), a not insignificant period, and one which the Tribunal would normally place weight on in favour of cancelling the visa (particularly since the applicant chose to leave his original employment and was aware that he had 60 days to find another employer, and that the purpose of a subclass 482 visa is to work for an Australian employer).
However, the Tribunal acknowledges that both the applicant and the Melbourne hospitality industry were significantly affected by the period of COVID19-related lockdowns between early 2020 to late 2021, and it accepts that the hospitality industry was still recovering in early 2022. It further accepts the evidence of the applicant and Mr Ciorciari at hearing that the latter’s business was intending to nominate the applicant as a Chef in March-April 2022 but ultimately did not proceed with this due to the assessment of Mr Ciorciari’s fellow directors that Wine Bar Pty Ltd was not in a financial position at that time to employ and nominate the applicant as a Chef on a full time basis. As Mr Ciorciari noted, the company was in the position to do so in April 2024, when its nomination of the applicant was approved by the Department.
On balance, the Tribunal considers that the above factors are not heavily in favour of cancelling the visa.
It further accepts that there is no evidence that the applicant breached any other condition(s) of his visa, and this weighs in favour of not cancelling his visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In relation to the applicant, the Tribunal accepts from his evidence at hearing that he has lived in Australia for approximately 5 years, and that he considers it as his home as he has family – in the form of cousins to whom he is close – here (although his sister and parents remain in Italy). The Tribunal therefore accepts that cancellation of his visa (which would otherwise not have ceased until 24 January 2026) would cause him some emotional and/or psychological hardship, and possibly some financial hardship arising from ceasing employment here and relocating to Italy and having to find employment there.
The Tribunal further accepts that cancellation of the applicant’s visa would cause disruption to Wine Bar Pty Ltd and Mr Ciorciari as they would have to try to replace the applicant in circumstances where there is an ongoing documented shortage of Chefs in Victoria.
The Tribunal considers that these factors weigh in favour of not cancelling the applicant’s 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
There is no suggestion that the circumstances of the cancellation of the applicant’s visa involved a personal relationship breakdown or family violence.
The Tribunal has discussed the circumstances in which the cancellation arose above. It finds that as the applicant chose to voluntarily leave his original employment with Ciavanni Group Pty Ltd, this cannot be said to be outside his control. However, the Tribunal accepts that he was aware that he needed to find another employer/nominator within 60 days of this, and that he attempted to do so. Moreover, the Tribunal accepts that he understood that Wine Bar Pty Ltd was going to nominate him as a Chef in April 2022 and that the decision by the company’s director not to proceed with this for financial reasons was outside the applicant’s control.
In relation to the period between April 2022 and April 2024, the Tribunal accepts that the applicant was talking with various potential employers but did not settle on one until he received the NOICC in early March 2024, at which point he and Mr Ciorciari agreed that Wine Bar Pty Ltd would nominate the applicant as a Chef, which it successfully did on 30 April 2024.
As noted above, the Tribunal discussed with the applicant its view that there was a significant period of nearly 2 years in which he was not employed by any Australian employer, which was contrary to the purpose of the subclass 482 visa and associated nomination program. It further noted, however, that the applicant was not working in breach of his visa conditions or in any other way engaging in activities contrary to the law; rather, he was largely at home with his extended family and trying to secure employment that he considered would best develop his skills.
The Tribunal considers that the above factors are fairly evenly balanced in favour of cancelling and in favour of not cancelling the applicant’s visa.
Past and present behaviour of the visa holder towards the department
The Tribunal is satisfied that the applicant has been cooperative when dealing with the Department and this weighs in favour of not cancelling his visa.
Whether there would be consequential cancellations under s 140
The Tribunal is satisfied that there will be no consequential cancellations pursuant to s.140 of the Act, and gives this factor no weight in favour of cancelling or not cancelling the applicant’s 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
The Tribunal accepts that the cancellation of the applicant’s visa has resulted in him holding a bridging visa (with work rights) and that he is therefore not unlawful or immediately liable for detention and removal from Australia. However, it also accepts that he is subject to s.48 of the Act, which prevents him from making a new subclass 482 visa application (and most other visa applications) in Australia. It also appears that he would be subject to a 3 year bar (from the date of cancellation, so until 30 April 2027) on returning to Australia if he were to go offshore and apply for another subclass 482 visa, unless he could demonstrate compassionate or compelling circumstances to waive the bar.
The Tribunal accepts that this limits the applicant and his employer’s options to continue the current employment relationship, and it gives these factors some weight 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].)
There is no evidence that cancellation of the applicant’s visa would breach any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, as a result of the cancellation.
The Tribunal therefore gives no weight to this factor in favour of cancellation or of non-cancellation.
If a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This criterion is irrelevant in this case, as the applicant’s cancelled visa was not a permanent residence visa.
Any other relevant matters
The applicant did not identify any other relevant matters besides the ones discussed above.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should not be cancelled. In reaching this conclusion, the Tribunal considers that the factors in favour of not cancelling the visa outweigh those in favour of cancelling it, and in particular, gives weight to the fact that:
·The applicant tried to find a new employer and nominator and thought that he had secured one within 60 days of ceasing employment with his original employer. This fell through for reasons outside the applicant’s control;
·Since May 2024, the applicant has been working full time in his original nominated occupation of Chef for a new employer, whose operations would be disrupted if it had to now replace the applicant;
·The applicant is working in an occupation for which there is a documented shortage at present and is well settled in Melbourne where he has full time employment and extended family; and
·There is no evidence of any other breaches of immigration (or any other) law by the applicant.
Therefore, despite the almost 2 year period during which the applicant did not find a new employer/nominator, the Tribunal considers that the factors in favour of not cancelling his visa outweigh those in favour of cancelling it, particularly when the applicant’s current circumstances are consistent with the aim of the subclass 482 visa and associated nomination program and his current nomination was approved before his subclass 482 visa was cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 482 - Temporary Skill Shortage visa.
Alison Mercer
Senior Member
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