Duffy (Migration)

[2022] AATA 1144

Duffy (Migration) [2022] AATA 1144 (13 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Christopher Duffy

CASE NUMBER:  2115305

HOME AFFAIRS REFERENCE(S):          BCC2020/2883870

MEMBER:Michelle East

DATE:13 April 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 13 April 2022 at 11:29am

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – employment ceased over 60 days – member of the family unit – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8607; r 2.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 October 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant had ceased employment with his sponsor for more than 60 days and was therefore in breach of condition 8607(5) 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 was invited to appear before the Tribunal on 13 April 2022 at 10.30am (WST) by Microsoft Teams Video to give evidence and present arguments.

4. The applicant did not attend the hearing at the allocated time, nor did he respond to calls made to his telephone by the Tribunal at that time.

5. The Tribunal is satisfied the applicant was notified appropriately of the date and time for the hearing and has failed to attend the hearing at the Tribunal by MS Teams.

6. Accordingly, the Tribunal has proceeded to make a decision on the papers.

7. 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

8. 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

9. 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 8607 attached to the applicant’s visa. This condition requires that the period during which the visa holder ceases employment must not exceed 60 consecutive days.

10. The applicant provided to the Tribunal a copy of the delegate’s decision record.  It records, among other things, that condition 8607 was attached to the applicant’s Subclass 482 visa, granted on 2 May 2019 on the basis of his employment in the position of Diesel Motor Mechanic (ANZSCO 321212) with McIntosh Holdings Pty Ltd (the sponsor).  It also stated that the sponsor had notified the Department that the visa holder had ceased employment with them effective 2 December 2020.

11. The Department provided a Notice of Intention to Consider Cancellation (NOICC) dated 9 July 2021 to which the applicant did not respond.

12. The applicant lodged his application for review with the Tribunal on 28 October 2021.  A search of Tribunal records also demonstrates the applicant has not provided any further information prior to the hearing.

13. As noted above, the applicant did not attend the hearing at the notified time.

14. The Tribunal has considered the wording of condition 8607 and is satisfied that the applicant is subject to paragraph 8607(5), that is, the applicant must not cease employment for longer than 60 consecutive days.

15. The Tribunal finds that the applicant has failed to comply with the requirements of condition 8607. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists.

16. As that ground does not require mandatory cancellation under s 116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    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’.

18. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.  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 the applicant.

19. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion.  Normally, when considering this matter, the Tribunal would take into account the submissions and evidence it received from the applicant.  As the applicant did not provide any submissions and failed to attend the hearing, there is no further evidence for it to take into account.

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

20. The subclass 482 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

21. The applicant arrived in Australia on 22 June 2019 on the visa which is the subject of the current cancellation.

22. The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.  The subclass 482 visa is a temporary visa of limited duration related to working for a particular sponsor in the nominated skilled occupation. 

23. Based on the evidence before it, the Tribunal is satisfied that as of the day of its decision, the applicant is not working in the nominated position with an approved standard business sponsor and has not done so since 2 December 2020.

24. The applicant ceased employment on 2 December 2020 and has therefore had more than adequate opportunity to pursue alternative employment and sponsorship pathways.

25. The Tribunal finds that the applicant’s purpose of his stay in Australia no longer accords with the purpose of his travel to Australia.

26. The Tribunal was unable to determine whether the applicant has a compelling need to remain in Australia.

27. The Tribunal gives this factor significant weight in favour of its discretion to cancel the visa.

    The extent of compliance with visa conditions

28. The Tribunal has no evidence of any other breaches by the applicant of his visa conditions.

29. The Tribunal notes that this breach occurred in December 2020.

30. The Tribunal gives this some weight in favour of its discretion to not cancel the visa.

    The reasons for and extent of the breach

31. The applicant has not been working for his sponsor since 2 December 2020.

32. There is no evidence before the Tribunal as to why he left him employment and what attempts he has made to pursue other avenues of employment.

33. The Tribunal gives this factor weight in favour of its discretion to cancel the visa.

    The circumstances in which the ground of cancellation arose

34. The Tribunal was unable to ask the applicant why he left his employment and what he has been doing since then. 

35. The Tribunal gives this factor weight in favour of its discretion to cancel the visa.

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

36. There is no evidence before the Tribunal that the applicant has any adverse past or present behaviour towards the Department.

37. The Tribunal gives this factor a little weight in favour of it not exercising its discretion to cancel the visa.

    The degree of hardship (financial, psychological, emotional or other) that may be caused to the visa holder and any family members

38. The Tribunal notes the applicant has a daughter and accepts that the applicant would suffer some hardship in being separated from his daughter and gives this some weight in favour of it not exercising its discretion to cancel the visa.

    Whether there are any persons in Australia whose visa would, or may be, cancelled under s140

39. The applicant’s daughter was granted the same visa on the basis of being a member of the family unit of the primary visa holder.

40. The Tribunal gives this factor some weight in favour of not exercising its discretion to cancel the visa.

    Legal consequences of a decision to cancel the visa

41. The applicant is currently on a bridging visa as a result of the current cancellation decision.  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 so, he has the opportunity to depart Australia.  If he fails to do so, this may result in detention or removal action, but this is not a necessary consequence of the cancellation decision.

42. The Tribunal is mindful that section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skill visas. This limits the visa applications which can be made by the applicant whilst onshore.

43. The Tribunal gives this factor a little weight in favour of its discretion to not cancel the visa.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

44. 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).

45. As noted in the delegate’s decision, the applicant separated from his wife in February 2020 and his daughter is residing with her mother, Melissa. She has lodged an application for a subclass 407 visa on 15 July 2020 and their daughter is on a bridging visa as a dependent for her mother’s application.  Both the mother and daughter hold Irish passports and could return to Ireland to avoid separating the family unit.

46. The Tribunal therefore finds it would not be in breach of Australia’s international obligations if the applicant’s visa was to be cancelled.

47. The Tribunal finds this factor neutral in the exercise of its discretion whether to cancel the visa.

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

    DECISION

49. The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Michelle East
    Member