Callangan (Migration)

[2021] AATA 4329

Callangan (Migration) [2021] AATA 4329 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mario Noel Callangan

CASE NUMBER:  2018175

HOME AFFAIRS REFERENCE(S):          BCC2020/1796436

MEMBER:Bridget Cullen

DATE:7 September 2021

PLACE OF DECISION:  Brisbane

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 7 September 2021 at 12.12pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – made redundant due to the impacts of COVID-19 – consideration of discretion – purpose of visa – Metal Machinist (First Class) – Subclass 482 visa sponsorship offer – circumstances giving rise to breach – beyond the applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 2020 made by a delegate of the Minister for Home Affairs 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 review applicant did not comply with a condition of his 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.

3. The applicant appeared before the Tribunal on 26 August 2021 by telephone to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, Katherine Cora of TCP Law & Migration (MARN 1798092).

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 is attached to the applicant’s visa. This condition requires the following:

   “8107
   
   (3) If the visa is, or the last substantive visa held by the applicant was, a subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):

   [...]

   (b) if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days.”

7. The applicant was granted the visa on 19 July 2018, and his most recent approved nomination was with Berendsen Fluid Power Pty Ltd, approved in March of 2020. The sponsor advised the Department that the applicant was no longer employed with them from 29 May 2020. The delegate, in sending the Notice of Intention to Consider Cancellation on 4 November 2020 noted that this appeared to be in breach of Condition 8107(3)(b) as it had, by this point, been more than 60 consecutive days of unemployment.

8. The applicant stated in response, and also gave evidence at the hearing, that his period of unemployment was because he had been made redundant due to the impacts of Covid-19 and had also affected his ability to find a new employer / sponsor.

9. Although the Tribunal has a great deal of empathy for persons who have found themselves unemployed due to the Covid-19 pandemic, including the applicant, in deciding whether the ground exists or not, the requirement is plain and simple. The requirement of Condition 8107(3)(b) is that the periods of unemployment are not to exceed 60 consecutive days.

10. Therefore, the Tribunal finds that the applicant ceased employment with his nominating company on 29 May 2020 and that the applicant’s ceased employment exceeded 60 consecutive days. This means that the applicant was in breach of Condition 8107(3)(b).

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

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

    The Purpose of the visa holder’s travel and stay in Australia

13. The purpose of the applicants Subclass 457 visa, which was granted on 19 July 2018, was to facilitate his working in Australia in an approved nomination for an Australian employer (Berendsen Fluid Power Pty Ltd) in the occupation of Metal Machinist (First Class) (ANZSCO 323214). The visa, had it not been cancelled, was valid until 19 July 2022.

14. The applicant made extensive and ongoing efforts to secure employment following his redundancy from 29 May 2020. He was employed as a full-time machinist at PTE Hydraulics Pty Ltd between 15 February 2021 and 9 July 2021.

15. The Subclass 457 visa regime came to an end in March 2018 and was replaced by the Subclass 482 visa which is a temporary visa and enables an Australian business to employ a person in an area where there is an identified skill shortage and who establishes the need to employ an overseas applicant.

16. The applicant is now employed by Bradbury Group Australia as a CNC Operator (Machinist). The Bradbury Group Australia is offering the applicant a Subclass 482 visa sponsorship if the applicant was successful at the AAT and provided correspondence from general manager affirming such.

    The extent of compliance with visa conditions

17. The representative’s submissions state that the applicant always acted in accordance with visas held, and that the redundancy due to the Covid-19 pandemic was something out of the applicant’s control.

18. The Tribunal accepts that the redundancy was related to the Covid-19 pandemic and outside the applicant’s control. The evidence before the Tribunal is that the applicant has otherwise complied with the conditions attached to his visa.

    The circumstances in which the ground for cancellation arose

19. The representative submitted the following:

    “As submitted in the response to the NOICC, the impact of COVID19 was out of Mr Callangan’s control. The result of the decrease of employment and subsequent redundancy was not something that Mr Callangan’s control.”

20. The Tribunal was provided with a detailed timeline of the applicant’s attempts to seek further employment as a Machinist (First Class) at multiple places during 2020, but, due to circumstances also largely out of his control, most employers were not willing to follow through with a sponsorship.

21. Despite the challenges of securing employment mid-pandemic, the applicant did, and worked in his area of skill for PTE Hydraulics Pty Ltd for several months before gaining employment with his prospective Subclass 482 sponsor, the Bradbury Group Australia.

22. The applicant has done his best to continue to meet the purpose of his travel to and stay in Australia – that is to work in his area of skill for an Australian sponsor. As the circumstances of his redundancy are beyond his control, and he has secured employment with a prospective Australian sponsor which the Tribunal assesses as having reasonable prospects of approval, the Tribunal weighs these factors collectively in favour of a decision not to cancel.

    The degree of hardship that may be caused to the visa holder and any family members

23. The Tribunal accepts that if the applicant’s visa remains cancelled, that it will cause some hardship to the applicant.

    The visa holder’s past and present behaviour towards the Department

24. There is no evidence to suggest that the applicant has behaved in a negative manner towards the Department as to weigh against him in the exercise of the discretion.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s.140 of the Act.

25. There are no persons in Australia whose visas would be consequentially cancelled under s. 140.

    Legal consequences of a decision to cancel the visa

26. If the cancellation decision is affirmed, the applicant who currently holds a Bridging Visa will be required to depart Australia. It is the understanding of the Tribunal that due to the current restrictions to international travel caused by the global COVID-19 pandemic the applicant could apply to the Department for a Bridging Visa which will enable him to stay in Australia until such time he is able to depart. If the applicant fails to depart Australia in accordance with the requirements of any Bridging Visa he holds, the applicant would be detained under s.189 of the Act and removed from Australia under s.198 of the Act as an unlawful non-citizen.

27. If the applicant's visa is cancelled he will be affected by s.48 and prohibited for a period of time for applying for visas with the application of PIC 4013 criterion.

    Australia’s international obligations

28. The applicant has not raised before the Department, or before the Tribunal, that any of Australia's international obligations would be breached as a result of the cancellation of his visa. The Tribunal finds that no breaches of Australia's international obligations would arise from the cancellation the applicant's visa.

    Any other relevant matters

29. The Tribunal has seen the submissions and evidence made in relation to the difficulties of the applicant returning home. The Tribunal was referred to another decision of the Tribunal, where a Member acknowledged there may be difficulties in returning to the applicant’s home country due to travel restrictions due to the pandemic. However, the following sentences did immediately note that the Australian Government put in place contingency options for persons that found themselves in Australia with limited options to return home and information in relation to this was available on the Department’s website; and found the claim in relation to Covid-19 irrelevant as to whether the power to cancel that visa should have been exercised.

30. This Tribunal weighs the Covid-19 related travel difficulties neutrally – as a factor that it considers does not weigh in favour or against cancellation.

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

    DECISION

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

    Bridget Cullen
    Member