Brookes (Migration)

[2019] AATA 468

Brookes (Migration) [2019] AATA 468 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Antony Lloyd Brookes

CASE NUMBER:  1725331

HOME AFFAIRS REFERENCE(S):           BCC2017/2594153

MEMBER:Amanda Mendes Da Costa

DATE:8 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 08 February 2019 at 12:11pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 90 days – occupation of Restaurant or Café Manager – employment ceased by mutual agreement – new position delayed by sporting injury – new sponsor employed the applicant after timeframe – roles including host and in-house drag queen – decision under review set aside    

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 2 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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 ceased employment with his sponsor on 9 March 2017 and remained in breach of visa condition 8107 of his visa and not complied with a condition of his visa for in excess of 90 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. The applicant appeared before the Tribunal on 4 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Philippa Scott and Mr Stephen Corbett.  

4. 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

5. 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?

6. 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 8107 attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period in which he or she ceases employment must not exceed 90 consecutive days.

7. The standard business sponsor who nominated the applicant in the most recently approved nomination was Ba Get Pty Ltd (the sponsor), whose nomination was approved for the applicant to be employed in the position of Restaurant or Café Manager (ANZSCO 141111).

8. On 12 September 2016 the applicant was granted a Subclass 457 visa.

9. The Department of Immigration subsequently received advice from the applicant’s sponsor that the applicant ceased employment with it on 9 March 2017.

10. On 25 August 2017 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his visa.  The applicant was invited to provide comments regarding the NOICC, which he provided on 25 August, 31 August, 1 September and 4 September 2017.

11. In his response, the applicant requested the delegate to exercise their discretion not to cancel his visa.  He relied on the following matters as relevant to the exercise of the delegate’s discretion regarding the cancellation of his visa:

    ·His new employment was with The Trustee for Sevar Trading Trust trading as The Main Café, Bar and Restaurant in Berwick, Victoria (Sevar) and this employer was in the process of applying for an approved nomination for a position for him as a venue manager.

    ·He had been involved in a sporting injury on 8 June 2017 and had undergone surgery for that injury on 3 August 2017.  Consequently he was unable to commence his new employment until he had recovered sufficiently from his injuries, to no longer need the use of crutches.

12. The Tribunal notes that the applicant provided the Department with a copy of the nomination application dated 29 August 2017 by Sevar.  This application was refused on 3 October 2017.

13. The applicant’s visa was subsequently cancelled on 16 October 2017.

14. The applicant was employed as a Restaurant Manager for the sponsor’s two Vietnamese restaurants in Melbourne and was also required to supervise staff at another two restaurants which the sponsor owned with other investors.  He was employed in this role on a full time basis until 9 March 2017.  He cased employment with the sponsor due to a disagreement about the operation of the business, particularly the sponsor’s proposal to significantly increase prices in each its restaurants.  The applicant was concerned about the effect this was likely to have on the viability of the sponsor’s business.

15. The decision to end the applicant’s employment with the sponsor was a mutual one and the applicant was confident at the time that he would be able to find another sponsor before 90 consecutive days had elapsed.  He applied for several positions with other employers but found that given the recently announced decision by the Australian Government to end the Subclass 457 visa, made it difficult for him to obtain further employment.  The applicant had a number of interviews with prospective employers but they were reluctant to employ him given the requirement for sponsorship and an approved nomination and the proposed changes to the Temporary Work Skilled visa scheme.  Although the Tribunal finds the applicant’s behaviour in leaving his employment naïve, it accepts that he genuinely thought he would be able to obtain another sponsor.

16. On 30 May 2017 the applicant secured an offer of employment with Sevar.  His prospective employer indicated to him that it was prepared to make sponsorship and nomination applications for a position for him. The applicant was subsequently injured during a rugby match and unable to commence his employment.

17. The applicant told the Tribunal that he telephoned the Department on 4 June 2017 to advise them of his new employment and the details of his employer.

18. The applicant underwent surgery on his knee in August 2017 and whilst he was recuperating, spoke to his prospective employer, who advised that it was in the process of making a nomination application for him.  It was not until he received the NOICC that he realised that his prospective employer had not been successful in its application and that the Department intended to consider cancellation of his visa.

19. The Tribunal notes that the nomination application by Sevar was refused on 3 October 2017. 

20. After he received the Notice of Cancellation of his visa on 16 October 2017, the applicant spoke to his prospective employer’s migration agent who advised that it had lodged the current application for review on his behalf.  The employment with Sevar did not eventuate due to the refusal of the nomination application for the applicant.

21. Given the difficulties he had experienced in Melbourne, the applicant moved to Sydney in December 2017 to seek further employment.  In January 2018 he received an offer of employment with a business in Sydney but it withdrew its offer when it became aware of his migration status.  In February 2018 he obtained employment with his current employer, The Sydney Collective Pty Ltd, where he has been employed since between 26 and 32 hours, five days per week.       

22. On the basis of the evidence before it, 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

23. 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

24. The applicant is a national of the United Kingdom.  He initially arrived in Australia on holiday in 2010.  He returned to Australia on 17 September 2011 on a Working Holiday visa and was subsequently granted a Student visa which enabled him to complete studies in hospitality and business management and accounting.  Whilst he was studying he was obtained employment as a restaurant manager with the Ba Get Pty Ltd, a standard business sponsor.

    The extent of compliance with visa conditions

25. There are no known instances of non-compliance with visa conditions, apart from the applicant’s non-compliance with condition 8107.

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

26. The applicant told the Tribunal that if the visa was cancelled and he was required to return to the United Kingdom, he would be able to live with family members in Wales, could obtain employment and would have the assistance of friends.  However, the Tribunal acknowledges that the applicant would be likely to suffer some difficulties in re-establishing his career and personal life in the United Kingdom after eight years in Australia.

    Circumstances in which the ground of cancellation arose

27. The Tribunal accepts that prior to the cancellation of his visa, the applicant was employed in his nominated occupation by Ba Get Pty Ltd, which was a standard business sponsor with an approved nomination for the application.  The applicant continued in his employment with the sponsor until 9 March 2017, when his employment ceased by mutual agreement with the sponsor.

28. The Temporary Work Skilled visa is a temporary visa which enables the visa holder to remain in Australia temporarily for a period of four years.  The purpose of that visa was to enable the applicant to be employed in Australia as a Restaurant Manager for his sponsor. Ba Get Pty Ltd.  That employment is no longer available to the applicant.

    Past and present behaviour of the visa holder towards the Department

29. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

30. The applicant is a single man with no children.  The Tribunal finds that the cancellation of the visa would not result in the consequential cancellation of any dependent visa holders.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

31. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely because as a United Kingdom citizen he will be able to return to the United Kingdom. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.

    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

32. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations or the best interests of a child would be breached as a result of the cancellation.

    Other matters

33. In late 2017 the applicant moved to Sydney to pursue employment opportunities. In January 2018 he obtained employment with his current employer, The Sydney Collective Pty Ltd.  This company operates several licensed venues in Sydney and one in Byron Bay in New South Wales.  The applicant is employed at the Imperial Hotel in Sydney which is a venue which caters predominantly to the LGBTQI community, with a restaurant, bars and nightclub.  The applicant is employed in a variety of roles including host and in-house drag queen.  The company recently acquired the Imperial Hotel and has spent in excess of 12 million dollars on refurbishment.  The applicant’s role is to welcome and entertain patrons who are predominantly members of the LGBTQI community.

34. Ms Scott is the human relations manager for the applicant’s employer and Mr Corbett is a manager at the Imperial Hotel.  They told the Tribunal that the applicant was a valued employee who had strong links with the LGBTQI community in Sydney and was able to foster and maintain a relationship between staff at the venue and its patrons.  The Tribunal notes that the venue has been operating (with different owners) for over 35 years and that it has always had strong links to the LGBTQI community.  The current owners are keen to maintain those links. 

35. Ms Scott explained that although the applicant’s current employer is unable to offer him a management position in any of its venues, it has contacts with the owners of another company in Sydney which operates five venues similar to the Imperial Hotel in Paddington, New South Wales.  Ms Scott said that she had already had discussions with the manager of one of those venues who indicated that the company was prepared to sponsor and employ the applicant.

36. Ms Scott further explained that the applicant’s personality and talents as a host and in-house drag queen were uniquely suitable to his role at the Imperial Hotel and other similar venues and the applicant’s prospects of future employment with other similar venues to the Imperial Hotel was excellent.  

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

    DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Amanda Mendes Da Costa
    Member