Brigham (Migration)

[2022] AATA 1788

Brigham (Migration) [2022] AATA 1788 (19 May 2022)

Corrigendum

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Richard Brigham

REPRESENTATIVE:  Ms Liyao Wang

CASE NUMBER:  2115712

HOME AFFAIRS REFERENCE(S):           BCC2021/1700830

MEMBER:  Joanne Bakas

DATE OF DECISION:  19 May 2022

DATE CORRIGENDUM

SIGNED:  31 May 2022

PLACE OF DECISION:  Adelaide

AMENDMENT:  The following corrections are made to the decision:

·     Paragraph 4 of the Decision Record states:

The applicant was represented in relation to the review. Ms Liyao Kah and Mr Michael Butler, both from Finlayson’s Lawyers attended the hearing in person.

This should be replaced with:

The applicant was represented in relation to the review. Ms Liyao Wang and Mr Michael Butler, both from Finlayson’s Lawyers attended the hearing in person.

Joanne Bakas Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Richard Brigham

REPRESENTATIVE:  Ms Liyao Wang

CASE NUMBER:  2115712

HOME AFFAIRS REFERENCE(S):           BCC2021/1700830

MEMBER:  Joanne Bakas

DATE:  19 May 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 403 (Temporary Work (International Relations)) visa.

Statement made on 19 May 2022 at 4:38pm

CATCHWORDS

MIGRATION – cancellation – Temporary Work (International Relations) (Class GD) visa – Subclass 403 (Temporary Work (International Relations)) – applicant ceased work with the employer – applicant pursuing unfair dismissal litigation – application for a Parent Visa – lengthy stay in Australia – social ties to the community – extensive contribution to the Australian community – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 2 cl 403.212; Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 October 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 403 (Temporary Work (International Relations)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

1. The delegate cancelled the visa under s 116(1)(b) on the basis that the Minister was satisfied that the applicant did not comply with a condition of their visa; in this instance conditions 8107(1)(a) and 8516 attached to the applicant’s visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

1. The applicant appeared before the Tribunal on 3 May 2022 via audio and video conference on MS Teams to give evidence and present arguments. His spouse, Mrs Lisa Brigham was with the applicant and also gave evidence.

1. The applicant was represented in relation to the review. Ms Liyao Kah and Mr Michael Butler, both from Finlayson’s Lawyers attended the hearing in person.

1. The Tribunal exercised its discretion to hold the hearing by audio and video conference on MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams, 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 MS Teams. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. 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

1. 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?

1. 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.

1. In this instance condition 8107 attached to the applicant’s visa. This condition requires the visa holder not to cease to be employed by the employer in relation to which the visa was granted.

1. Also attached to the applicant’s visa is condition 8516 which requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. As it relevantly applies to this matter, the applicant’s cessation of employment with his approved sponsoring employer means the visa holder does not continue to meet the requirements of Regulation 403.212. This is because it appears he no longer genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted (that is, to work for the Australian Signals Directorate, the applicant’s last approved employer).

1. It is not disputed by the applicant that he ceased employment with the Australian Signals Directorate on 30 September 2021 or that he did not recommence employment with the Joint Defence Facility at Pine Gap (the initial sponsor employer for his Temporary Work (International Relations) (subclass 403) visa. However, the applicant’s evidence included that this non-compliance was beyond his control.

1. 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

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

1. The Tribunal is cognisant of the circumstances that the applicant was granted the visa for the purpose of being able to undertake work on a temporary basis, for a sponsored employer, at the Joint Defence Facility Pine Gap (JDFPG) and that he has been in Australia since 2011.

1. It is not in dispute that the applicant initially arrived to undertake a short term assignment and that his spouse later joined him in Australia ad that he had been offered subsequent employment contracts, enabling him to extend his and his spouse’s stay in Australia. His most recent was with Stellar Solutions.

1. As the applicant no longer works at the JDFPG, or another approved workplace his purpose of stay for the visa he holds, no longer exists.

1. The applicant’s submissions included that he had no idea that he was about to be fired in September 2020. He is currently involved in litigation in Australian Courts that he commenced for unfair dismissal and for defamation. These legal actions would be detrimentally affected if he was not able to remain in Australia to pursue them.

1. In addition, the applicant’s only son is an Australian permanent resident and lives nearby with his wife and child. The applicant and his spouse applied for a Parent Visa (subclass 103) as they wish to stay in Australia in their retirement and spend time with their son.

1. The applicant met his purpose of stay up until his cessation of work in September 2020. Since that time his stay in Australia has been for purposes other than fulfilling the temporary work contract for which the visa was granted.

1. The applicant gave his evidence in an honest and forthright way and the evidence establishes to the Tribunal’s satisfaction that the applicant is currently embroiled in litigation relevant to the sudden termination of his employment.

1. The Tribunal is satisfied that the applicant is no longer employed by his approved sponsor in which is contrary to the purpose for which the visa was originally granted.

1. However, the Tribunal is also satisfied that the evidence provided by the applicant in regard to his legal matters, weighs somewhat in favour of not cancelling the visa.

The extent of compliance with visa conditions and past and present behaviour of the visa holder towards the Department

1. By virtue of his cessation of employment, the applicant has fallen into non-compliance with visa conditions 8107 and 8516. The applicant’s submissions included that this was as a result of the actions of his employer and through no fault on his part. Further he has commenced legal action as a result of the termination of his employment.

1. There is no evidence apart from this to indicate that the applicant has failed to comply with other conditions or with his current bridging visa conditions.

1. There is also no evidence before the Tribunal indicating the applicant has been unco- operative or displayed any specific adverse behaviour towards the Department.

1. Given the circumstances surrounding the non-compliance and the action undertaken by the applicant, The Tribunal gives this consideration some weight in favour of not cancelling the visa.

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

1. Th evidence before the Tribunal shows that the applicant has been living in Australia for over 10 years. He has held a number of temporary visas to undertake specific temporary work contracts. The Tribunal notes that there is no expectation that visa holders will be eligible to remain in Australia beyond the validity of their visa or work contract.

1. However, the Tribunal also notes that the applicant and his spouse have resided in Alice Springs for significant period of time and have developed social ties to the community.

1. The submissions of the applicant included that he has been involved in the following community areas:

   a.    Board member/Treasurer, Alice Springs Baseball Club

   b.    2014,2016 & 2018 Masters Games Volunteer

   c.     2016 Baseball Coordinator, Masters Games, Alice Springs

   d.    2020 Alice Springs Team Participant for Junior Baseball Fundraiser

   e.    2020 Member, Beefsteak and Burgundy Men’s Club

   f.   2022 Volunteer, Alice Springs Open (Golf)

   g.    Alice Springs Animal Shelter Fund Raiser Event and

   h.    Multi Year Volunteer for Paul Williams Golf Fundraiser.

2. The applicant’s spouse has also had a number of community commitments in Alice Springs, including:

   a.    2013 to 2020 Central Craft Member and Volunteer bi-monthly retail outlet

   b.    2016 taught glass beadmaking at Central Craft expo week

   c.     2014, 2016, 2018 Masters Games Volunteer

   d.    2017/2018 Butterfly connection volunteer and participant

   e.    2016 Royal Flying Doctors Race Day volunteer

   f.   2014 to 2018 Town Council Sunday Market participant

   g.    Multi Year Volunteer for Paul Williams Golf Fundraiser

   h.    Alice Springs Animal Shelter Fund Raiser Event and

   i.   2022 Poppy Fundraiser for Returned and Services League (RSL).

3. In addition the applicant’s son, and only offspring, is 30 years of age and married a dual Australian and New Zealand citizen on 15 February 2018. Since 2019 the applicant’s son and his wife have been living with the applicant. His son became a permanent resident on 12 August 2021 and on 2 November 2021 the applicant’s son and his wife sponsored the applicant and his spouse for a parent visa (subclass 103) which is currently being processed by the Department.

1. The applicant also gave evidence that he and his spouse purchased a home in Alice Springs in December 2019 and have been living in that home since and that both he and his spouse undertake employment in accordance with their current bridging visa conditions.

1. In addition, as detailed above, the applicant is currently involved in legal action against his sponsored employer. If his visa is cancelled the Tribunal is satisfied that this will cause some detriment to his attendance at subsequent matters associated with his legal cases.

1. The Tribunal is also satisfied that if his visa is cancelled, the applicant will suffer some financial, psychological and emotional hardship given his circumstances as detailed above.

1. In considering all of the above, the Tribunal gives this consideration substantial weight against visa cancellation.

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.

1. The grounds for cancellation were enlivened when the applicant’s employment was terminated.

1. There is evidence before the Tribunal that the applicant has engaged a lawyer in respect of subsequent legal matters he wishes to pursue in regard to the termination of his employment. He had no intention of ceasing his employment.

1. The Tribunal accepts that the resulting breach of his visa condition was beyond the applicant’s control.

1. The Tribunal gives this consideration some weight against visa cancellation.

Whether there would be consequential cancellations under s 140

1. The Tribunal notes that the departmental records show the applicant’s spouse, Ms Lisa Brigham, holds a secondary Temporary Work (International Relations) (subclass 403) visa. If the applicant’s visa is cancelled, this will cause the automatic consequential cancellation of Ms Brigham’s visa also.

1. As such, the Tribunal affords this consideration a little weight against cancelling the 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

1. In circumstances where the visa is cancelled, the applicant and his spouse will no longer have a suitable visa status to allow them to remain in Australia. They will thus become unlawful non-citizens liable for detention under s.189 of the Act and removal under s.198 of the Act.

1. The applicant would also be subject to s.48 of the Act which would limit the potential to lodge further visa applications onshore in Australia.

1. The Tribunal gives this consideration some weight against visa cancellation.

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

1. The Tribunal finds no information before it to indicate that visa cancellation would impact Australia’s international obligations or would be in breach of Australia’s non-refoulement obligations.

1. The Tribunal therefore attributes little weight to these considerations in deciding whether to exercise the discretion to cancel the visa.

If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. As the visa subject to cancellation is not a permanent visa, this is not a relevant consideration to this case

Any other relevant matters

1. There are no other relevant matters evident or raised by the applicant.

1. In considering the circumstances as a whole, the Tribunal is satisfied, on balance that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 403 (Temporary Work (International Relations)) visa.

Joanne Bakas Member