Du Preez (Migration)

[2020] AATA 5411

Du Preez (Migration) [2020] AATA 5411 (22 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wilfred Alan Du Preez
Ms Jacqueline Abarquez Tambal
Ms Katrina Tambal Almeria

CASE NUMBER:  2008851

HOME AFFAIRS REFERENCE(S):          BCC2019/5118570

MEMBER:Andrew McLean Williams

DATE:22 December 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision 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 22 December 2020 at 1:15pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – discretion to cancel visa – retrenched by sponsoring employer – no effort to secure alternate sponsor and attempt to develop own business – claim of fear of harm in home country, but no application for protection made – decision under review affirmed for first applicant, no jurisdiction for other applicants

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (3), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 May 2020 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, pursuant to 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 has not complied with a condition of the visa. Specifically, the applicant was required, pursuant to subclause (3)(b) of condition 8107’ not to cease employment for any period exceeding 60 consecutive days with his approved sponsoring employer, TAFE Queensland. TAFE Queensland advised the Department that the applicant had ceased to be employed by them with effect from 27 September 2019.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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.

5. The named applicants appeared before the Tribunal on 10 December 2020 to give evidence and present arguments. The Tribunal has also had regard for and has now considered written submissions lodged with the Tribunal prior to the hearing, and with the Department, prior to the filing of the application for review by the applicant as to why the applicant’s visa should not be cancelled.

6. 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

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, in 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?

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 is attached to the applicant’s visa. This condition requires that the applicant remain in continuous employment with their sponsoring employer. Subclause 3(b) provides that the visa applicant must not cease employment for any period exceeding 60 consecutive days.

9. TAFE Queensland was the applicant’s standard business sponsor and employer. The applicant’s employment with TAFE Queensland was approved for visa purposes on 17 November 2016. Yet, TAFE Queensland subsequently contacted the department to indicate that the applicant was no longer employed by them, with effect from 27 September 2019. The applicant has confirmed that fact in his oral evidence before the Tribunal, indicating that he was retrenched by TAFE Queensland. Based on this information the Tribunal is satisfied that the applicant has not complied with condition 8107(3)(b), such that a ground for visa cancellation is made out, for purposes of s.116(1)(b). 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 discretionary matters

10. 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 for various matters raised in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

11. During his appearance before the Tribunal the applicant submitted that, as a white South African of Boer heritage he has a well-found fear of harm on grounds of race in the event that he is now required to return to South Africa.  The applicant submits that there is a legislated form of discrimination against while people in South Africa, which will make it extraordinarily difficult for him to find employment in South Africa.  Further, the applicant submits he has grounds to fear for his physical welfare, due to anti-Boer sentiments in South Africa which continue to be fomented by some political leaders in South Africa, notably Julius Malema.  The applicant also submits that he will suffer the risk of further persecution by reason that he is a former member of the Jehovah’s Witnesses in South Africa, because he left that organisation to pursue his religious faith in other ways.  Yet, other than to now assert these things, the applicant has provided no specific evidence to the Tribunal to demonstrate any objective basis for any risk of harm or persecution, either because of his Boer heritage, or on religious grounds.  It is noted by the Tribunal that the applicant has not made an application to the Department for a protection visa because of these claims.

12. In terms of relevant discretionary factors, including matters raised by the applicant and by the departmental guidelines, the Tribunal determines as follows:

    (a)Purpose of the visa holder’s travel and stay in Australia

    The applicant was granted a 457 visa on 10 March 2017 for the purposes of undertaking employment with TAFE Queensland, in an approved position.  Since losing that position on 27 September 2019, the applicant has not obtained an alternate employment sponsor.  Accordingly, his remaining in Australia is no longer consistent with the purpose of a Temporary Work (skilled) visa.  This consideration is given significant weight by the Tribunal as grounds to now cancel the visa.

    (b)Extent of compliance with visa conditions

    The applicant is non-compliant with condition 8107(3)(b) and has been non-compliant since 27 September 2019, a period exceeding 12 months.  The applicant has been unsuccessful in obtaining a new sponsoring employer, and has seemingly directed his efforts elsewhere in an attempt to develop a start up business, offering training and development services which he terms “Human Improvement Sciences”.  The on-going - and now longstanding - absence of a sponsoring employer and approved position for the applicant is a very significant factor in favour of a decision to now cancel the visa.

    (c)Degree of hardship that may be caused to the visa holder and any family members

    In oral submissions and written submissions before the Tribunal, and in the applicant’s response to the Department’s Notice of Intention to Consider Cancelation (‘NOICC’) the applicant seeks to portray various forms of hardship that will be caused to him and his family in the event that he is required to return to South Africa.  Yet, no objective evidence is provided in any of the applicant’s materials or submissions to show an objective basis for these concerns.  The Tribunal is therefore unable to attach any determinative weight to these assertions. 

    The applicant and his family members hold a temporary category of visa which was originally granted with no expectation of permanency.  Some emotional, psychological and economic hardship, as well as inconvenience for the applicant and members of his family is very likely to arise in consequence of visa cancellation.  However, the amount of weight that may be attached to these factors as matters militating against visa cancellation is only very minimal.

    (d)    Circumstances in which the grounds for cancellation arose.

    In this case grounds for cancellation arose because the applicant ceased to be employed by his most recent sponsoring employer.  The applicant says that he was retrenched from his employment by TAFE Queensland, and this was sudden and quite unexpected.  Although it is accepted by the Tribunal that loss of employment was a matter beyond the applicant’s control, there is no specific evidence of any subsequent effort by the applicant to secure an alternate sponsor within 60 days in order to remain compliant with condition 8107.  The Tribunal gives this factor some weight against cancellation of the visa.

    (e)    Applicant’s past and present behaviour towards the department

    There is no evidence before the Tribunal that the applicant has been uncooperative with the Department.  This factor is given a small amount of weight against cancellation of the visa.

    (f)    Whether there would be consequential cancellations under s.140

    Examination of departmental information that is accessible to the Tribunal reveals that the applicant has 4 dependent visa applicants who will be consequentially impacted, in the event of the applicant’s visa being cancelled.  Those persons are the applicant’s former spouse Anita Levina Du Preez; his daughter Bronwyn Lara Du Preez; and the applicant’s current partner, Ms Jacqueline Tambal and her young daughter Katrina Tambal Almeria. 

    In the case of Anita Du Preez and Bronwyn Du Preez, each are adults, and may apply for their own visa, independently of the applicant. 

    Overall, the Tribunal gives some weight against visa cancellation on account of the consequential adverse impact on these four other persons.

    (g)Whether there are mandatory legal consequences,

    In the event that the applicant’s visa is cancelled, both he and his other family members will become unlawful non-citizens, and may become liable to immigration detention and removal from Australia, in the event that they do not leave voluntarily beforehand. The applicant would also be impacted by s.48 of the Act, thereby causing him limited options if applying for further visas while onshore in Australia. Visa cancellation pursuant to s.116(1)(b) does not however cause the applicant to be affected by Public Interest Criteria (PIC) 4013, such that the applicant will not face an exclusion period as a result of visa cancellation. In an overall sense, this factor does give grounds for some weight against visa cancellation.

    (h)Australia’s international obligations

    There is no evidence before the Tribunal to suggest that visa cancellation will result in any breach of Australia’s international obligations.  No weight is attached by the Tribunal to this consideration.

    (i)Any other relevant matters

    The applicant has sought to describe close ties with Australia for himself and members of his family, and has sought to emphasise the future potential, particularly in economic terms, of the start-up concept ‘Human Improvement Sciences’ now being developed by him.  These factors are given a small amount of weight in favour of not cancelling the applicant’s visa.

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

    DECISION

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

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

    Andrew McLean Williams
    Member