Goret (Migration)

[2024] AATA 3395

Goret (Migration) [2024] AATA 3395 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ines Sophie Marie Goret

CASE NUMBER:  2416642

HOME AFFAIRS REFERENCE(S):          BCC2023/1709626

MEMBER:Karen McNamara

DATE:2 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 2 September 2024 at 2:54pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – visa granted on fact or circumstance which is no longer the case or no longer exists – secondary visa holder member of family unit of partner – relationship ceased – discretion to cancel visa – multiple visas, long residence and strong personal and community relationships – no documentary evidence of self-employed business or personal circumstances provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(a), 359A, 360
Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cl 482.312

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 June 2024, made by a delegate of the Minister for Home Affairs to cancel the applicant’s Temporary Skill Shortage (subclass 482) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. Information before the Tribunal shows that on 25 October 2021, Miss Ines Sophie Marie Goret (the applicant) was granted a Temporary Skill Shortage visa on the basis that she was a member of the family unit of the primary applicant, Mr Jake Llewellyn Godfrey. On 13 March 2023, the Department was notified that the applicant’s relationship with Mr Jake Llewellyn Godfrey had ended.  

3. On 29 April 2024, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC). The applicant requested an extension to respond to the NOICC in which the Department subsequently granted a five working day extension to 22 May 2024.

4. In her response to the NOICC, the applicant did not dispute the grounds for cancellation as set out in the NOICC and confirmed that her relationship with the primary visa holder had ceased.

5. On 3 June 2024, a delegate for the Minister of Home Affairs (the delegate) cancelled the applicant’s visa under s.116(1)(a) of the Act on the basis that a prescribed ground for cancelling the visa applied to the applicant. That is, the applicant is no longer a member of the family unit of Mr Jake Llewellyn Godfrey as per regulation 1.12 of the Regulations.

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

7. The applicant lodged an application for review with the Tribunal on 11 June 2024. The review application was not accompanied by supporting evidence nor a copy of the delegate’s decision.

8. On 19 July 2024, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act. The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to her comments or response, be the reason or part of the reason for affirming the decision under review. The information related to information before the Tribunal that shows that on 3 June 2024, the Department cancelled the applicant’s Temporary Skill Shortage Visa under s116(1)(a) of the Act on the basis that a prescribed ground for cancelling the visa applied to the applicant. That is, the applicant is no longer a member of the family unit of Mr Jake Llewellyn Godfrey as per regulation 1.2 of the Migration regulations and therefore no longer meets the requirements of cl 482.312 of Schedule 2 to the Regulations.

9. The Tribunal sought the applicant’s response by 2 August 2024.

10. On 24 July 2024, the applicant wrote to the Tribunal via email requesting an extension of time to respond to the Tribunal’s invitation to comment. The applicant sought the extension on the basis that she was “…currently traveling in a remote area with limited internet access and will not be able to provide the necessary information within the given timeframe.” The Tribunal granted the applicant an extension of time to 9 August 2024 to submit her response.

11. On 25 July 2024, the Tribunal invited the applicant under s.360 of the Act to appear before the Tribunal via Microsoft Teams video conference on 15 August 2024 at 2:30pm (NSW time).

12. On 8 August 2024, the applicant submitted to the Tribunal the following information;

    ·Flight information dated 18 March 2023

    ·Photographs

    ·Character reference (Edouard Cadou) dated 3 July 2024

    ·Character reference (Greg Curry) dated 1 May 2024

    ·Character reference (Laurie Nivert) undated

    ·Character reference (Michael O’Grady) dated 29 April 2024

    ·Character reference (Tamara Phillips) undated

    ·Character reference (Wade Kelleher) 1 May 2024

    ·Visa approval (Subclass 601) 19 March 2023

    ·Letters from Department dated 17 and 27 July 2023 re: subclass 408 visa application

    ·Letter from Department dated 1 August 2023 re: subclass 408 visa application

13. On 9 August 2024, the applicant provided an email addressing the issues raised in the Tribunal’s invitation to comment dated 19 July 2024. The applicant additionally provided duplicated copies of the information provided on 8 August 2024 as noted above.

14. On 15 August 2023, the applicant appeared before the Tribunal via Microsoft Teams video conference, to give evidence and present arguments.

15. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

16. 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

17. 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)(a). 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?

18. A visa may be cancelled under s 116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

19. In this case information before the Tribunal including the delegate’s decision record, shows the delegate found that the applicant was no longer a member of the family unit of the primary visa holder, Mr Jake Llewellyn Godfrey.

20. The delegate records that on 13 March 2023, the Department was notified that the applicant’s relationship with Mr Jake Llewellyn Godfrey had ended. The decision record shows that the applicant in her response (22 May 2024) to the NOICC dated 29 April 2024, did not dispute the grounds for cancellation set out in the notice.

21. At the hearing and in written submissions to the Tribunal, the applicant confirmed that the relationship had ended and that the parties had not reconciled.

22. On the evidence before it, the Tribunal is satisfied that the applicant is no longer a member of the family unit of the primary visa holder and therefore the ground for cancellation in s 116(1)(a) 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

23. 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’.

    Background

24. The applicant is a 28-year-old citizen of France. She first arrived in Australia on a tourist visa on 23 September 2014. Since her initial arrival in Australia the applicant has departed and re-entered Australia on numerous occasions whilst holding numerous temporary visas including subclass 600 visitor and subclass 417 tourist visas. On 25 October 2021, the applicant was granted a Temporary Skill Shortage visa on the basis that she was a member of the family unit of the primary applicant, Mr Jake Llewellyn Godfrey. The visa was granted for the period 25 October 2021 to 25 October 2025. On 27June 2024 the applicant was granted a Bridging visa E (subclass 050).

    Assessment of the Evidence:

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

25. In exercising its discretion, the Tribunal has first considered 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.

26. The Tribunal asked the applicant about her current purpose for remaining in Australia. The applicant told the Tribunal that she has developed strong emotional relationships with people in Australia and wishes to spend time in Indigenous communities in the Northern Territory.  The applicant does not wish to return to France as she believes she will no longer fit in as she has fully immersed herself in Australian culture. The applicant also told the Tribunal that her parents do not have a room for her as they now rent out her room.

27. In summary, the applicant told the Tribunal that she wants to stay in Australia to maintain relationships she has developed, continue her business selling her framed photographs, is planning an exhibition of her photographic work and intends to write a book. In written submissions before the Tribunal the applicant stated “one of the main purposes of my trip was to engage deeply with the cultural aspects of Australia, particularly by spending time with Indigenous communities.”

28. At the time of the hearing the applicant was located in Darwin and was preparing to travel to Arnhem land where she plans on volunteering at various art centres and work with rangers in order to immerse herself in indigenous culture and art.

29. The Tribunal takes into account the purpose of the Temporary Skill Shortage (Subclass 482) visa is to enable employers to address labour shortages by sponsoring overseas workers where they cannot source an appropriately skilled Australian citizen or permanent resident. The applicant was granted this visa on the basis that she was a member of the family unit of the primary visa holder, Mr Jake Llewellyn Godfrey.

30. The applicant does not dispute that she is no longer in a relationship with the primary visa holder and therefore is no longer a member of the family unit of the primary visa holder.

31. Whilst the Tribunal notes the applicant was granted this visa as a secondary applicant and that the relationship has now ceased, the Tribunal further notes that there is no evidence before it to support any consideration that the applicant herself is engaged in skilled employment for the purpose of addressing a labour shortage. The Tribunal, therefore, cannot be satisfied that the applicant has continued to engage in activities for the purpose the visa was granted.

32. The Tribunal therefore having afforded consideration to the purpose to which the applicant was granted the subclass 482 visa, gives this consideration significant weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

33. The Tribunal takes into consideration that there is no evidence before it to suggest the Department has been concerned about the applicant’s conduct and it has not recorded breaches of visa conditions.

34. The Tribunal gives this consideration minimal weight against cancelling the visa.

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

35. At the hearing the applicant told the Tribunal that she operates her own business selling framed photographic prints of her images at local markets and has considerable stock on hand. If the applicant must leave Australia, she will have to sell this stock which she claims will be hard to sell. The Tribunal noted in written submissions, the applicant stated “…This financial year, I generated a revenue of $108,883.74, which is double what I earned last year...” The applicant was unable to confirm at the hearing the business’s recorded net profit for the 2023/24 financial year, nor was she able to confirm the financial value of said stock on hand.

36. Whilst the applicant claims to operate a business there is no probative evidence including financial statements, tax returns, BAS returns, sales and material inventory, invoices, and receipts etc to support active business activity. The applicant told the Tribunal that the business was not registered for GST.

37. The applicant is currently travelling within Australia and at the time of the hearing was in Darwin. When asked who was operating the business in her absence, the applicant told the Tribunal that she was not currently working, and her savings are being utilised for her travel.

38. The Tribunal acknowledges that the applicant during her stay in Australia has (according to character references provided), developed close bonds and relationships and therefore may suffer some financial, psychological, emotional, or other hardship if the visa is cancelled. However, there is no compelling persuasive evidence before the Tribunal to support the current financial position of the applicant and how a visa cancellation outcome would impact the applicant financially, psychologically and emotionally. In the absence of probative evidence to support the degree or severity of hardship that cancellation of the visa may cause the visa holder, the Tribunal cannot be satisfied that that it will be serious and therefore gives this consideration minimal weight against cancelling the visa.

    Circumstances in which the ground of cancellation arose

39. The Tribunal has had regard to the evidence before it as to the circumstances in which the ground for cancellation arose. In this instance, the ground for cancellation arose because the applicant is no longer in a relationship with the primary visa holder and therefore the applicant was no longer a member of the family unit of a person who holds a Subclass 482 visa.

40. At the hearing the applicant told the Tribunal that she ended the relationship with the primary visa holder due to his depression.

41. On the basis of the applicant’s evidence, the Tribunal is unaware of any extenuating circumstances beyond the control of the applicant, warranting its consideration of this discretionary factor. The Tribunal therefore considers that the grounds for which the visa was granted ceased to exist when the relationship ended, as reported to the Department on 13 March 2023.

42. Having afforded consideration to the circumstances in which the ground of cancellation arose, the Tribunal affords this consideration considerable weight for cancelling the visa.

    Past and present behaviour of the visa holder toward the Department

43. There is no evidence that the applicant has not been co-operative in her dealings with the Department in the past. The Tribunal gives this consideration minimal weight against cancelling the visa.

    Whether there would be any consequential cancellations under s.140

44. There are mandatory consequences in the cancellation of the applicant’s visa, including difficulties for the applicant in obtaining any further visas.

45. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant will have limited options to apply for further visas in Australia following the expiry of her current Bridging visa.

46. The Tribunal gives this consideration minimal weight against cancelling the visa.

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

47. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

48. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

49. The Tribunal finds that the cancellation of the applicant’s visa would not lead to a breach of Australia’s international obligations. The Tribunal places no weight to this consideration as favouring the applicant.

    Any other relevant matter

50. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are aspects that are slightly favourable to the applicant as outlined above. Overall, however, having considered all the information before it, the Tribunal considers it significant that the applicant was granted her Subclass 482 visa as a member of the family unit of her former partner. The applicant does not dispute that she is no longer a member of the family unit of Mr Jake Llewellyn Godfrey and that the relationship formally ceased in March 2023.

51. The Tribunal notes that the applicant has expressed a strong desire to remain in Australia, to continue her travels and continue to immerse in Australian Indigenous culture. The applicant told the Tribunal that she seeks to have the visa reinstated to 25 October 2025, so she can continue her photographic business and have a deadline in order to have sufficient time to plan her future in Australia.

52. Having consideration to the entirety of the evidence before it and the circumstances presented as a whole, the Tribunal concludes on balance that the visa should be cancelled.

    DECISION

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

    Karen McNamara
    Member