Canavan (Migration)

[2021] AATA 3796

Canavan (Migration) [2021] AATA 3796 (2 September 2021)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stuart Canavan

CASE NUMBER:  2013732

HOME AFFAIRS REFERENCE(S):          BCC2020/870312

MEMBER:Amanda Upton

DATE OF DECISION:  2 September 2021

DATE CORRIGENDUM

SIGNED:30 September 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

At paragraph 45 of the Tribunal’s decision, the sentence:

“The applicant has provided no relevant reasons in relation to this consideration for being unable to return to India and as such the Tribunal affords this factor no weight.”

should be replaced with the sentence:

“The applicant has provided no relevant reasons in relation to this consideration for being unable to return to Ireland and as such the Tribunal affords this factor no weight.”.

Amanda Upton
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stuart Canavan

CASE NUMBER:  2013732

HOME AFFAIRS REFERENCE(S):          BCC2020/870312

MEMBER:Amanda Upton

DATE:2 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 2 September 2021 at 1:37pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 90 days – no evidence provided to support claim of unfair dismissal – moved cities to be with girlfriend – unable to find new sponsor – COVID-19 restrictions – visa expired – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1429
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168

Re Drake and MIEA (No 2) (1979) 2 ALD 634

Sakhno v MIAC [2007] FMCA 1492

Visnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 28 August 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 applicant had breached condition 8107(3)(b) as he had ceased working for his sponsoring employer on 6 March 2020 and had not returned to work for that employer for more than 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 29 April 2021 to give evidence and present arguments.

4. 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

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?

s.116(1)(b) - non-compliance with conditions

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. In this instance condition. In this instance condition 8107 attached to the applicant’s visa. At 8107(3)(b) this condition requires that the visa holder must not cease employment for a period exceeding 90 consecutive days.

2. The applicant confirmed to the Tribunal that he had not been employed for a period of time that exceeded 90 days.

3. 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’.

2. 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 and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

   [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala 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].

3. 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.

4. 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 8107, to which his visa was subject, prescribes in 8107(3) (b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

5. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

6. The applicant was granted a sub class 457 visa on 25 October 2016. It expired on 25 October 2020.

7. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was Palmer Glass & Carpentry Pty Ltd. The applicant ceased employment with the company on 31 January 2020.

The purpose of the applicant’s travel and stay in Australia.

1. The applicant is a 43 year old Irish man who first came to Australia in October 2012 for the purpose of work. He lived in Perth initially and worked doing sheet metal work. He stayed at the same workplace for a period of 5 years in Perth until late 2017. He left Perth to move to Sydney as he had met a girl and so decided to move to be with her. He obtained new employment in Sydney again doing sheet metal work.

2. The applicant has a sister who lives in Brisbane. She has been there for 10 years.

The extent of compliance with visa conditions

1. There are no known instances of non-compliance with visa conditions (including the applicant’s Subclass 457 and bridging visas), apart from the applicant’s non-compliance with condition 8107(3)(b), attached to his visa.

2. The applicant’s visa had, at the time of the Tribunal hearing expired.

3. The applicant has now not worked in Australia since 31 January 2020 when he ceased employment with his sponsor. The Tribunal considers this to be a significant period of time (over 12 months at the time of the hearing) and as such considers it to be significant non-compliance with the visa condition.

4. The applicant stated that he has been trying to get another sponsor but has been unable to get one due to COVID, in doing so he was being told that there was not enough work. He stated to the Tribunal that he was able to search for work for a period of about 8 weeks but then ‘took his eye off the ball’ and ran out of time.

5. The Tribunal accepts that the circumstances with the COVID pandemic over the last year have contributed to it being more difficult than perhaps otherwise to obtain further employment.  However, the Tribunal does not consider that the applicant’s position since losing that employment has been solely due to the circumstances of the pandemic.

6. Even taking into consideration the impact of the pandemic, the Tribunal considers that the applicant has had ample time to find a new sponsor. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 12 months since the original cessation of employment represents a significant breach of condition 8107.

7. The applicant informed the Tribunal during the hearing that he had in fact obtained employment and would be able to provide documentation confirming this within two weeks after the hearing. The Tribunal to date has received no such documentation. The Tribunal, therefore, can place little weight on the applicant’s assertion of having found employment.

8. The Tribunal therefore gives this consideration in favour of cancelling the visa.

9. The Tribunal has also taken into account the fact that the applicant has been in Australia for a period of 8 years and has worked since the time of his arrival to his most recent termination.

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

1. The applicant told the Tribunal that is no longer with his partner. She had been sustaining him financially and they separated around October 2020, approximately 6 months prior to the hearing. The applicant is still in Sydney and has met someone else. He remained living with his ex-partner but they are no longer together. His sister has been helping to support him.

2. The applicant has not lived in Ireland for about 10 years, he is concerned about getting a job if he has to return. He has a social network in Australia and close friends in Australia.

3. The Tribunal accepts generally, that the cancellation of a visa results in opportunities lost and disappointment. It also accepts that there is potentially a financial loss for the applicant. The Tribunal considers also that it is expected that there will be consequences to a visa cancellation, and these are such consequences. As such the Tribunal gives minimal weight to these considerations raised by the applicant.

Circumstances in which ground of cancellation arose.

1. The applicant ceased employment on 31 January 2020. He detailed to the Tribunal the circumstances of the termination and how in his view they amounted to an unfair dismissal as follows:

2. He stated that the nominator benefited from the change in law in relation to pool fences and as such had a significant amount of work and it was his view that he had lost his job due to a young man being employed. He helped the young employee start and trained him in the job, particularly the unique characteristics of that they do. The young employee then started doing jobs on his own and the applicant was late one day. He stated that this was not a usual thing and he had worked crazy hours that week. He was given an official warning.

3. The whole company was then sent to do further but the applicant was not sent. When he questioned why he did not go he was told that he would do it later. The applicant offered to pay for his own training but was told that he could not do that. The applicant stated that he felt that he felt pushed out for small things that should not have been an issue.

4. The applicant then stated that he was asked to leave, “the easy way or the hard way”. He was then, by correspondence, offered a disciplinary hearing with a support person. The applicant went to a solicitor with the letter and asked for a few days to organise it. Correspondence was sent to the employer by the solicitor and the response to such was to terminate the applicant’s employment without the disciplinary hearing.

5. In the circumstances, the applicant had 21 days to go to the Fair Work Commission but not realising that he did not have to pay for it he thought he could not afford to fight it as he had already paid a solicitor $2 000.

6. The applicant stated that he then tried to get another job but due to the circumstances at the time due to the COVID pandemic, he was helping his partner build her home office that she needed.

7. The applicant stated to the Tribunal that he considered that he would be able to get a job now as his skills are scarce, however as noted above at paragraph 9, he has not provided any documentation confirming as such.

8. The Tribunal accepts that the applicant was aggrieved by the nature of his dismissal and that he sought some advice from a solicitor in relation to it. Documentation was provided to the Department confirming as such. The Tribunal, however, is unable to place weight on the assertion that the applicant makes as to unfair dismissal as there is not material before it upon which it could conclude that the applicant was in fact unfairly dismissed.

9. The Tribunal takes into account that the applicant has consulted a lawyer about it and formed the view that he was unable to afford to take the matter any further. The Tribunal accepts that it is often difficult for people to navigate legal matters when they are in a foreign country. The Tribunal, however, does not accept that the applicant making such an assumption was reasonable in circumstances. This is particularly when he had already obtained the advice of a legal professional and access to information about such processes is, in any case, easily accessible to an individual without the need for legal advice.

10. The Tribunal has had regard to the circumstances of the pandemic and the timing of the applicant’s loss of work however notwithstanding these matters, considers that the applicant has had sufficient time to be able to secure an alternative sponsor. The Tribunal gives this weight in favour of cancelling the visa.

Past and present behaviour of the applicant towards the Department.

1. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140

1. There are no other visa holders associated with this visa application, therefore the Tribunal is satisfied that there would not be any consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled.

2. The Tribunal gives no weight to this consideration, either in favour of or against cancellation of the visa.

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.

1. 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.

2. The Tribunal notes that it may be difficult for the applicant to leave the country in the current situation however also notes that the Australian Government has put in place several contingency options for visa holders who find themselves in Australia with limited options for returning home.

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.

1. The applicant has provided no relevant reasons in relation to this consideration for being unable to return to India and as such the Tribunal affords this factor no weight. 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).

2. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Accordingly, the Tribunal does not give this consideration any weight to these considerations, either in favour of or against cancellation of 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 applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration, either in favour of or against cancellation of the visa.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

decision

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Amanda Upton
Member