Don Liy Anage (Migration)

[2021] AATA 4471

Don Liy Anage (Migration) [2021] AATA 4471 (27 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eranga Sampath Don Liy Anage

CASE NUMBER:  2100402

HOME AFFAIRS REFERENCE(S):          BCC2020/2066619

MEMBER:Bridget Cullen

DATE:27 October 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 27 October 2021 at 1.26pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 60 days – impact of the COVID-19 pandemic in the hospitality industry – redundancy due to circumstances beyond his control – eligibility to apply for permanent residency – relationship with an Australian permanent resident – applicant sought alternative employment – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 2 cl 457.223; Schedule 4, Public Interest Criterion 4013; Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 January 2021 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 they breached visa condition 8107; that being the applicant was to remain employed by an approved nominator. 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 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rebecca Perera, the applicant’s partner.

4. The applicant was represented in relation to the review by his registered migration agent, Mr Jacky Au, of Acquire Consulting Pty Ltd (MARN 1687689). Mr Au did lodge the Application for Review Form in the Tribunal on the applicant’s behalf, but did not appear in the Tribunal, or lodge any further materials or submissions on the applicant’s behalf.

5. 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

6. 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?

7. 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. Relevant to this decision, Condition 8107(3)(b) requires that if the applicant holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis of meeting the requirements of cl.457.223(4), that the visa holder must not have a period of ceased employment exceeding 60 consecutive days.

8. The Department decision record, provided by the applicant, states that they were most recently employed by Event Hospitality and Entertainment Limited, in the position of Chef (ANZSCO 351311). His position was located at the Reef Plaza Hotel, Rydges, in Cairns. The most recent nomination application was approved on 1 November 2016, and the visa, subject to the decision under review, was granted on 18 January 2017 for a period of 4 years.

9. The nominator, Event Hospitality and Entertainment Limited, notified the Department on 3 June 2020 that the applicant had been stood down, and later, that their employment was terminated effective 15 July 2020. By the time the Department issued the Notice of Intention to Consider Cancellation (‘NOICC’) on 3 December 2020, the period of ceased employment exceeded 60 consecutive days.

10. When responding to the NOICC, the applicant explained to the Department that his employment had ceased due to the COVID-19 pandemic. In his submissions to the Tribunal, the applicant stated that he was eligible for permanent residency, and that if not for COVID-19, that he would now be a permanent resident of Australia.

11. The applicant concedes that there are grounds for cancellation and this issue is not in dispute. The applicant has made submissions to the Department and the Tribunal in respect of the exercise of the discretion not to cancel the applicant's visa.

12. The Tribunal notes that the applicant ceased employment with the when he was made redundant, as a consequence of the COVID-19 related downturn in the hospitality industry, on 15 July 2020. The Tribunal finds that the applicant has not been employed for more than 60 consecutive days and has not obtained a new nomination, putting the applicant in breach of condition 8107(3)(b) attached to the applicant's visa.

13. 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

14. 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’.

15. The Tribunal notes that while it may be guided by policy it is not bound to follow it. Specifically, in this context, the Courts have held that while the PAM3 policy guidelines are an administrative advisory guide to decision makers in relation to the application of the Act and the Regulations, they cannot be 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. Notwithstanding this, the Tribunal considers the PAM3 policy guidelines to be a useful starting point in considering the exercise of discretion.

    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

16. The applicant was granted a Subclass 457 visa on 18 May 2017 to work in the nominated occupation of Chef for Event Hospitality and Entertainment Limited (Rydges).  The Subclass 457 visa was a temporary visa granted for a finite period to fill identified skills shortages, enabling an Australian business to employ an overseas worker where they have established a need for the employee and have met the relevant criteria. The expectation was that the applicant will work for the sponsor in the nominated occupation for the term of the visa.

17. On the basis of the evidence before it, the Tribunal accepts that the applicant began working for his sponsor in 2013, before transitioning to work in the nominated occupation. The evidence before the Tribunal indicates quite clearly that the applicant was made redundant due to circumstances beyond his control. The letters from Rydges make it plain that the sponsor’s hospitality business suffered following COVID-19 lockdown measures.

18. At the hearing, the applicant gave evidence about his efforts to secure new employment – however, as he is on a Bridging Visa, he has found that employment opportunities are limited, particularly as the Subclass 457 visa program has ceased. The Tribunal considers it significant that the applicant is still not the subject of a current approved nomination, as working for an approved sponsor is the primary purpose of his visa.

19. The Tribunal also notes that the Subclass 457 visa is a temporary visa, and there is no entitlement for the holder of a temporary visa to remain in Australia indefinitely. However, the documentary evidence before the Tribunal does reveal that the applicant, having worked as a sponsored, skilled worker for 4-years was eligible to apply for permanent residency and taking steps with his sponsor to do so at the time that the entirely unanticipated COVID-19 pandemic struck.

20. Overall, the Tribunal gives the applicant’s circumstances in not having a current approved nomination some weight in favour of cancellation, as the applicant is not presently fulfilling the purpose of his stay in Australia.

    The extent of compliance with visa conditions

21. The Tribunal notes that the applicant's breach of condition 8107(3)(b) was a consequence of the applicant's sponsor making his position redundant because COVID-19 lockdown requirements had significantly impacted the sponsor’s hospitality business.  The Tribunal accepts that this was beyond the applicant, and his sponsor’s control.

22. There is no information before the Tribunal suggesting that the applicant has not otherwise complied with his visa conditions. The Tribunal expects that applicants will comply with visa conditions, and therefore gives this a small amount of weight against cancellation.

    The degree of hardship that may be caused

23. The applicant gave oral evidence, as well as providing the Tribunal with written submissions about the hardship that would be caused to him if the visa cancellation was upheld.

24. The applicant has been in a relationship with his current partner Ms Perera, an Australian permanent resident, since October of 2020, and close friends since 2013. Ms Perara is supporting the applicant as he is not presently able to work. They reside together, with Ms Perara’s two dogs, and the applicant’s dog. It is clear to the Tribunal that the applicant would suffer emotional hardship in being separated from his partner, and his dog, if he had to depart Australia.

25. The applicant’s brothers are both Australian permanent residents living in Melbourne. He is close to his family.

26. At the hearing, the Tribunal discussed with the applicant that the Subclass 457 visa was a temporary visa and there was no guarantee that it would lead to permanent residency. However, the Tribunal recognises that the applicant was on a pathway leading to permanent residency at the time the COVID-19 pandemic struck. While the Tribunal cannot form a view as to whether it would have been granted if things went to plan, the Tribunal does accept that Rydges possessed the intention to sponsor him and had referred the applicant to a registered migration agent for these purposes.

27. The Tribunal accepts that if the applicant's visa cancellation was affirmed it would cause hardship to him, his family, and to his partner.

28. While the Tribunal considers that the applicant has skills and qualifications as a Chef, that would facilitate his obtaining employment in Sri Lanka, the Tribunal accepts that this would be challenging mid-pandemic.

29. The Tribunal gives this consideration some weight against cancellation.

    The circumstances in which ground of cancellation arose

30. The applicant has provided evidence as to the circumstances that led him to breach visa condition 8107(3)(b). It is clear to the Tribunal that these circumstances were beyond his control.

31. The applicant seeks the opportunity to obtain a Subclass 482 nomination application, with a prospective employer. As he has not had work rights, he has not been able to obtain alternate employment, but wants the opportunity to so. He explains that he has been in Australia since 2013:

    I started work at Rydges in July 2013 as full time breakfast chef. I was a loyal, and hard worker but in 2016 l needed to work for a company that would sponsor me. So l let Rydges know of my decision to find work with a sponsorship. Management contacted me a couple of days later and offered to sponsor me through Rydges Plaza Cairns. On the 18th of January 2017 l was granted a Temporary (skilled)(subclass457)Visa.

    I worked at Ryges As a full time chef de partie until, on the 15th of July 2020 l was redundant.redundant not due to any shortcomings of my performance, Ryges Plaza Cairns closed down due to COVID 19 Pandemic, and could not sponsor me any further.

    At this stage l was in the process of getting all relevant details and documentation ready to apply for my PR which l was eligible for. The news of being redundant disturbed me very much and l was feeling very much helpless, so l started looking for a new jobs that offered a sponsorship.

32. The applicant has also provided the Tribunal with the correspondence from the Rydges Area General Manager, in relation to his initial stand down, and then cessation of employment. That correspondence makes it plain that the reason the applicant’s employment ended was because of the “Government mandated closure of our hotel operations”.

33. The Tribunal observes that the applicant’s position of Chef (ANZSCO 351311) is on the medium list for the Medium and Long-term Strategic Skills List. The Department’s website says:       

    “​​​​​​​​​​​Your occupation is on either the Medium and Long-term Strategic Skills List (MLTSSL) or the Regional Occupation List (ROL)” and the Medium-term stream is to “This visa enables employers to address labour shortages by bringing in skilled workers where employers can't source an appropriately skilled Australian worker.”

34. The Tribunal accepts that the applicant has contacted other businesses looking for a Chef that have indicated they are willing to sponsor him, but in circumstances where he again has work rights. In this respect, considering that Chef remains on the skilled occupation list, the Tribunal considers the applicant's stay in Australia likely continues to be aligned with the intention of the cancelled visa, being to fill an ongoing skills shortage. The Tribunal gives this consideration some weight against cancellation.

    Past and present behaviour of the visa holder towards the Department

35. There is no evidence to suggest that the applicant has behaved in a negative manner towards the Department or in such a way that would weigh in favour of cancellation.

36. The Tribunal gives this consideration neutral weight.

    Whether there are mandatory legal consequences of cancellation

37. The applicant currently holds a Bridging E visa. Due to the current restrictions on international travel caused by the COVID-19 pandemic, the applicant could apply to the Department for a further Bridging visa to enable him to stay in Australia until such time as he could depart. The Tribunal has had regard to the fact that if the applicant fails to depart and does not hold a visa allowing him to remain in Australia, the applicant may be liable to be detained under s 189 of the Act or removed under s 198 of the Act.

38. The Tribunal also notes that the applicant would be subject to s 48 of the Act, limiting his options to apply for further visas while onshore due to the application of Public Interest Criteria (PIC) 4013. The Tribunal gives this consideration some weight against visa cancellation.

    Whether any international obligations would be breached as a result of the cancellation

39. The Tribunal has had regard to whether Australia would be in breach of its international obligations if the decision to cancel the visa is affirmed.

40. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, the Convention Against Torture and Other Cruel Inhuman or degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR) and Australia's responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC).

41. There is no claim or any evidence before the Tribunal that if the applicant returns to Sri Lanka he will face persecution, death, torture, cruel, inhuman or degrading treatment or punishment. The applicant has not applied for a protection visa or made any claims regarding rights under the CAT or ICCPR.

42. Therefore, the Tribunal gives neutral weight to this consideration.

    Any other relevant matters

43. The Tribunal considers that the applicant has endeavoured to secure a visa that would see him remaining in Australia to work in the nominated occupation of Cook. The Tribunal considers that the applicant possesses skills in an area where there remains a chronic skills shortage for Chefs and other hospitality workers in Australia.

44. The Tribunal gives this factor some weight against cancellation.

    Conclusion

45. The Tribunal has considered all of the relevant factors and the circumstances of this case. The Tribunal notes that the factors that led to the applicant being in breach of his visa – arising out of the impact of COVID-19 related lockdowns on the hospitality industry in Queensland - were beyond his control. The Tribunal acknowledges that the applicant, and his Australian permanent resident partner, will suffer hardship if he is required to return to Sri Lanka. The Tribunal notes that the seeks to work in his nominated occupation, in an area of skill shortage in the Australian market. Accordingly, the Tribunal considers the applicant's stay in Australia continues to be aligned with the intention of the cancelled visa, being to obtain work as a Cook in an area of Australian business need.

46. As the applicant’s Subclass 457 visa expired on 18 January 2021, and he is currently on a Bridging Visa E, the impact of this decision is not that he will obtain permanent residency, or even a guarantee that he can remain in Australia. Rather, the impact is that he will be able to apply for another visa while onshore. The applicant would be well advised to obtain professional migration assistance to canvass his options.

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

    DECISION

48. 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