Clegg (Migration)

[2019] AATA 2621

Clegg (Migration) [2019] AATA 2621 (1 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paul William Clegg
Mrs Donna Louise Clegg
Miss Madison Grace Clegg
Miss Brooke Laurel Clegg
Miss Evanee Iris Clegg

CASE NUMBER:  1813196

HOME AFFAIRS REFERENCE(S):           BCC2018/250222

MEMBER:Michelle East

DATE:1 May 2019

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 01 May 2019 at 10:56am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled) – Procurement Manager – applicant secured ongoing permanent employment – made redundant from previous role – community volunteer – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations (Cth) 1994, condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 April 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) 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 not complied with Condition 8107(3)(b). 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. A copy of the delegate’s decision was attached to the application for review.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

5. The first, second and third named applicants appeared before the Tribunal on 29 April 2019 to give evidence and present arguments.

6. 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

7. 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

8. 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 was attached to the applicant’s visa. Condition 8107(3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.

9. On the basis of the information before it from the department records and as detailed in the delegate’s decision, the Tribunal finds that the first named applicant (‘the applicant’) was granted a subclass 457 visa on 13 August 2015 to occupy a position of ‘Procurement Manager’.  The most recent sponsor whose nomination was approved on 26 April 2016 was Hse Mining Pty Ltd.  The applicant had previously been granted a subclass 457 visa in 2011 and was working as a contractor for his sponsor in the oil and gas industry.

10. The Tribunal finds that the applicant’s occupation of ‘Procurement Manager’ (ANZSCO Code 133612) is not a specified occupation for the purposes of paragraph 8107(3A).

11. According to the Delegate’s decision the Department received notification from the sponsor that the applicant had ceased working with them from 29 September 2017.

12. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 3 April 2018 and provided a written response on 10 April 2018.

13. In that response he provided as follows:

    We of course appreciate the position and the grounds of the notification and grounds for suggested cancellation.  We had contacted immigration and border protection toward the end of January 2018 to seek advice to whom it would be best to speak with regarding options to lawfully remain in Australia with the view not to cancel the visa.  Considering it is still valid until the end of August 2019.  We were advised we would be contact by your department (Department of Home Affairs) on or before the end of the cessation period (90 days) with a case number to open discussions on ways we could remain in Australia.  Up until the email on 14 March 2018 requesting contact information we had not spoken to the Department of Home Affairs.

    We have now of course exceeded the 90 day period, and until now we have not approached by the Australian government for any form of assistance whilst we have proactively searched for employment opportunities.  We presumed the delay in communication was down to the new visa information.

14. At the hearing the applicant confirmed he did cease working for the sponsor as indicated and at the date of the delegate’s decision had not obtained a new nomination.

15. The Tribunal therefore finds that during the period the applicant held his subclass 457 visa he ceased employment for more than 90 consecutive days and therefore breached condition 8107(3)(b) of his visa.

16. 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

17. 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 to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

18. In his response to the NOICC the applicant stated:

    We moved to Australia in 2011 from the UK with no intention to return, calling Australia home almost as soon as we arrived.  In the close to 7 years we have now been here we believe that we have integrated into the Australia way of life and very much is now our home.  Several issues have prevented us from securing permanent residency most recently the changes to the original CSOL moving to the MLTSSL & STSOL my occupation now resides on the STSOL which would prevent me from applying for permanent residency.  We are still exploring opportunity to make this happen but had to wait until such time as the decision on the 457 visa was made which as we know only happened 2/3 weeks ago.  Given the update of the recent occupation list there are many job disciplines that can be considered.

19. As explained to the applicant at the hearing, a 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that the applicant would be able to remain in Australia on a permanent basis.

20. The purpose of the applicant’s stay in Australia when granted the 457 visa, was to work full time as a Procurement Manager for a different sponsor than the most recent one.

21. The applicant provided evidence of an offer of permanent employment from Austal dated 25 December 2018.The letter states he has successfully completed his probationary period with the company.  At the hearing the Tribunal requested a copy of the applicant’s contract of employment with Austal.  This was provided subsequent to the hearing.

22. The applicant also provided evidence of a casual employment contract with Turner & Townsend dated 29 June 2018, signed on 16 July 2018.  The applicant advised at the hearing that he did not take up the offer of employment but produced the evidence to indicate his ongoing efforts to secure employment.

23. The applicant was clearly complying with the purpose of his travel to and stay in Australia up until he was made redundant from his role with Hse Mining Pty Ltd.  The Tribunal accepts there had been a downturn in the economy at that time which made securing employment difficult, particularly in Western Australia.  Nevertheless, the applicant has been successful in securing further employment on his bridging visa.  The Tribunal is satisfied that the applicant has, to the extent possible, complied with the purpose of his travel to and stay in Australia.

24. The Tribunal finds this weighs in favour of the applicant.

25. The applicant gave evidence of his family’s desire to stay in Australia and of the financial disadvantage they would suffer if they had to return to the UK.  The Tribunal acknowledges that the applicant and his family would prefer to remain in Australia however finds this falls short of being a compelling need.

    The extent of compliance with visa conditions

26. There is no evidence suggesting the applicant has not been compliant with other visa conditions since arriving in Australia in 2011.

27. The Tribunal finds this weighs in favour of the applicant.

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

28. The applicant in his response to the NOICC detailed the financial, psychological and emotional hardship that he and his family would suffer should his visa be cancelled.  The applicant has 3 daughters, one of whom just completed her schooling.  

29. The applicant, his wife and eldest daughter all gave compelling evidence of their integration into the Australian community.

30. The Tribunal questioned the applicant about what would happen if they were to return to the United Kingdom.  He said they would have to start afresh with little or no assets to their name.  Their eldest daughter wants to start university, the middle daughter has just started year 10 and the youngest daughter has little memory of ever living in the UK.

31. The applicant’s wife also gave evidence of her employment with a jewellery valuation business and provided a letter of support from her employer dated 24 April 2019.  The managing director of the company spoke of her expertise in the jewellery and insurance industry and of her important role within the company.

32. The Tribunal accepts there would be significant hardship to the applicant and his family should the visa be cancelled and finds this weighs heavily in favour of the applicant.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

33. The Tribunal accepts the evidence that the applicant was made redundant from his sponsored position and has been actively searching for permanent work since that time, resulting in him securing a permanent contract with Austal.

34. The Tribunal is satisfied that the circumstances in which the ground of cancellation arose were beyond the applicant’s control and finds this weighs in favour of the applicant.

    Past and present behaviour of the visa holder towards the department

35. There is nothing to indicate that the applicant has been involved in any adverse behaviour towards the department and finds this weighs in favour of the applicant.

    Whether there would be consequential cancellations under s.140

36. The Delegate’s decision reflects that the applicant’s wife and three daughters would all have their visas cancelled as a result of the applicant’s visa being cancelled.  The Tribunal accepts the parties’ evidence that this would be extremely difficult for them as a family unit.

37. The Tribunal finds this weighs heavily in favour of the applicant.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

38. The applicant’s visa was cancelled on 27 April 2018 and he now holds a Bridging visa E.  There is no evidence before the Tribunal that cancellation would result in him being subject to detention or that indefinite detention is a possible consequence of cancellation.  The Tribunal considers this factor neutral in considering its discretion

39. When asked what he would do if his visa was cancelled the applicant said he would have no choice but to return to England with his family.

    Whether any international obligations, including non-refoulement and the best interests of the children as a primary consideration would be breached as a result of the cancellation

40. There is no evidence before the Tribunal to suggest that any international obligations would be breached as a result of the cancellation.  Whilst the Tribunal notes the evidence regarding the hardship that would be suffered by the applicant’s two minor daughters if they have to return to England, having spent their formative years in Australia, this does not amount to a breach of any international obligations.  The Tribunal considers this factor neutral in considering its discretion.

    Any other relevant matters

41. The applicant provided evidence of his involvement in the community as a volunteer, raising money in charity bike events.  He also gave evidence of his involvement in SOFAR, a live music discovery community.  Both the applicant and his wife have been heavily involved in volunteering their time with this organisation.  The evidence given at hearing was both informative and compelling in demonstrating the extent of the family’s commitment to contributing to the arts in Western Australia.  The applicant said one of his biggest disappointments if he had to leave Australia and return to England would be giving up his voluntary role with SOFAR.  The Tribunal finds this weighs heavily in favour of the applicant.

    Conclusion

42. The Tribunal has had careful regard to all the documentary and oral evidence provided to it. 

43. The Tribunal is also mindful that the applicant has secured ongoing, permanent employment with Austal. 

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

    DECISION

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

46. The Tribunal has no jurisdiction with respect to the other applicants.

    Michelle East
    Member