Gorzkiewicz (Migration)

[2018] AATA 5026

Gorzkiewicz (Migration) [2018] AATA 5026 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mateusz Gorzkiewicz

CASE NUMBER:  1814148

HOME AFFAIRS REFERENCE:                BCC2018/508866

MEMBER:Lilly Mojsin

DATE:31 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 31 October 2018 at 10:51am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work Skilled) visa – circumstances no longer exist – relationship breakdown – no longer member of primary visa holder’s family unit – hardship – financially supporting parents – poor job prospects in home country – no compelling circumstances – preference to stay in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 5F, 116

Migration Regulations 1994 (Cth),

CASES

Babicci v MIMIA [2005] FCAFC 77

MZYPZ v MIAC [2012] FCA 478

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 May 2018 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)(a) on the basis that the decision to grant the visa was based wholly or partly on circumstances that no longer exist ie. the applicant was no longer a member of the family of the primary visa holder.

3. The applicant appealed that decision to this Tribunal attaching a copy of the delegate’s decision to his application.

4. The applicant appeared before the Tribunal on 17 October 2018 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 16 December 2015. That visa was granted on the basis (amongst other things) that he met the secondary criteria for the grant of the visa (reg.1.12), as he was a member of the family unit of Julia Fanny Helene Gouyes (the primary visa holder). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 6 April 2018, the applicant was advised that it appeared he was no longer a member of the primary visa holder's family unit. In the NOICC letter, the applicant was referred to reg.1.12. He was also advised that to continue to be a member of the primary visa holder's family unit he would need to continue to be either a spouse or de facto partner, as defined in s.5F (Spouse) & 5CB (De facto partner) of the Act, of that primary visa holder. Therefore, he was advised that his visa may be cancelled under section 116(1)(a) of the Act.

6. The applicant responded to the Department NOICC letter on 21 April 2018.The Tribunal explained to the applicant that it was conducting a de novo review of a decision by the Department to cancel his student visa. The Tribunal noted that it had reviewed the Departmental file and information provided at review and that based on this evidence it appeared that the applicant's visa had been cancelled under Section 116 of the Migration Act as a circumstance which permitted the grant of his student visa no longer existed. The Tribunal noted that this circumstance was that he was no longer a member of the family unit of the primary visa applicant, his de facto ex-wife as their marital relationship had broken down and thus a circumstance which permitted the grant of the visa no longer existed.

7. The Tribunal explained to the applicant that it needed to firstly determine whether the grounds for cancellation existed. The Tribunal then needed to determine having regard to relevant considerations whether it was preferable for the visa not to be cancelled having regard to those discretionary considerations.

8. The Tribunal explained to the applicant that the effect of setting aside the cancellation would mean that the applicant would hold the same visa that had been cancelled. The Tribunal noted that the Department would be able to cancel the reinstated visa on the basis that the circumstances that permitted the grant of the visa no longer existed.

9. The applicant told the Tribunal that he arrived in Australia to study and graduate with a Masters in Commerce from Sydney University in Commerce. He came to Australia with his girlfriend. Once her visa expired they entered into a de facto relationship. They applied together for a graduate visa, the applicant obtained that visa. They then applied for Skilled Work visas and his de facto obtained the 457 visa as the primary visa holder.

10. The applicant has been working in marketing/advertising Metcash and retail network of liquor stores. He now works in a factory powder coating. Essentially he is a factory worker. His employment status has changed. He left Metcash in 2017. He also works in kayaking, he is an ex-pro kayaker. He is now an instructor. He worked for Sydney Harbour Kayaks. The applicant has a girlfriend. He has no children.

11. The Tribunal asked the applicant what degree of hardship would be caused to him if the visa was cancelled. He stated that there is a lack of chance of finding a job in Australia. He has not tried to find a job in Poland or any EU country.  He prefers to live in Australia because of its standard of living and employment quality. He has been a viable part of the workforce.

12. In relation to hardship if the visa were cancelled he said that his mother is 60 years old and works as a nurse. His father tried to run a family business and he supports his father, who is struggling in his business. His sister is a single mum having difficulty securing a fulltime job. He has been supporting them financially. His degree was very costly and his family paid for it without any external support. It was an investment for the future.

13. The Tribunal asked the applicant what the problem was with him returning to his home country. He said that he might have problems finding a job in Poland and other EU countries. There is a language barrier in other EU countries. Finding a job would be challenging in his occupation of marketing.

14. The applicant confirmed that he had never had any other problems with Department.

15. The Tribunal received an explanatory statement from the applicant, information regarding his employment, a financial hardship statement and copies of his qualifications. The applicant reiterated his reasons for coming and staying in Australia. He stated that factors to consider were details of the breakdown of the relationship with his de facto wife and requested that he be allowed to continue to become a permanent resident of Australia by allowing him to apply from within Australian borders for an eligible visa or allow him enough time so that he and his current partner would meet the requirements of a de facto relationship.

    REASONS AND FINDINGS

16. 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 review, 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.

17. The applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 16 December 2015 on the basis that he met the secondary criteria for the grant of the visa (reg.1.12), as he was a member of the family unit of Julia Fanny Helene Gouyes (the primary visa holder).

18. The applicant responded to the Department NOICC letter on 21 April 2018 and agreed that he was no longer a member of the family unit of the primary visa holder. At the Tribunal hearing the applicant confirmed he was no longer in a marital relationship with the primary visa holder.

19. The delegate cancelled the applicant's visa, pursuant to s.116(1)(a) of the Act, on 4 May 2018.

20. The Tribunal is therefore satisfied the applicant has ceased to be in a relationship with the primary visa holder. He has therefore ceased to be either a spouse or de facto partner of the primary visa holder, as defined in sections 5F and 5CB of the Act. The Tribunal finds the applicant is no longer a member of the family unit of the primary visa holder (pursuant to r.1.12). Therefore, the circumstances which permitted the grant of the applicant's visa no longer exist and the applicant’s visa may be cancelled under s.116(1)(a) of the Act.

21. For these reasons, the Tribunal is satisfied that 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 the discretion to cancel the visa

22. 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 review, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

23. In regard to the purpose of the applicant’s travel and stay in Australia, the applicant arrived in Australia as the holder of a student visa in 2012. He is a national of Poland. He graduated with a Master of Commerce degree in 2013 specialising in Marketing and Project Management. He subsequently entered into a de facto relationship. The applicant’s de facto spouse obtained a 457 visa, after the couple had obtained other visas where the applicant met the primary criteria of that visa. The applicant obtained employment in Australia in marketing and advertising. He established a network of professional connections and build an alternative career in the sports sector, kayaking. The applicant seeks to remain in Australia to become a permanent resident. He would like to remain for enough time to meet the requirements of a de facto relationship, with his current girlfriend/de facto. However, the visa was granted to the applicant, whilst he was living in Australia, for the purpose of his travel to [if required] and residence in Australia as a member of the family unit of the primary visa holder. That purpose had now ceased. The Tribunal places weight on this factor in favour of cancellation.

24. The applicant has not expressed an intention to continue in a de facto relationship with the primary visa holder. The Tribunal is satisfied the present intention of the applicant in continuing to reside in Australia is not for the purpose of continuing in a relationship with the primary visa holder.  The Tribunal places weight on this factor in favour of cancellation.

25. The Tribunal has had regard to whether the visa holder has a compelling need to travel to or remain in Australia.  The expression 'compelling reasons' is not defined for the purposes of PAM3. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA [2005] FCAFC 77 at [24].

26. The applicant states that he has been living in Australia, he is part of the community and has two career paths. He wishes to remain in Australia to work, to earn an income to support his family overseas and to stay with his current girlfriend. The Tribunal is not satisfied that these circumstances are a compelling need to travel to or remain in Australia. The Tribunal weighs this factor in favour of cancellation.

27. In regard to the degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship) the applicant states that he has gained experience in the Australian retail industry, he does not know if he can transfer those skills. Leaving Australia will put him into hardship. He will have difficulty obtaining employment in Poland or the EU as he does not speak other languages. He believes he has unique skills. He would like to stay permanently. He is in a bad financial situation at the moment as he has no money.

28. The applicant and his father run an innovative business in Poland which is experiencing huge growth. The next step for this business is to expand into the Australian market. He has been offered a new job at a well-known kayak business in Australia. There is a shortage of skills and experience in this unique occupation.

29. The applicant states that he has been employed in Australia in roles with relatively low entry level salaries and was unable to secure himself decently paid long-term employment in his field of expertise. He has had dental expenses costing over $5000. The applicant also opines that he had costly motor vehicle expenses, student visa work restrictions that did not permit him to earn a high income, expenses paying for his studies and a low starting salary when he completed his studies. The Tribunal accepts that the applicant may have been employed in roles with relatively low entry level salaries and was unable to secure himself decently paid long-term employment in his field of expertise in Australia, or that he experienced financial difficulties due to dental expenses, studies in Australia and motor vehicle breakdown. The Tribunal does not accept that these factors are relevant to assessing hardship should the applicant’s visa be cancelled.  

30. The applicant has been supporting his family financially while living and working in Australia and it will be difficult for him to transfer his knowledge and experience to become part of the workforce in Poland. He would not be able to obtain employment in the EU as he does not speak other languages. Unemployment rates are much higher in Poland and his current financial situation would not allow him to cover costs to depart Australia and start-up life in a different country. If he were required to depart Australia it would most likely result in the relationship ending with his girlfriend.

31. The Tribunal accepts that the applicant is suffering financial difficulty at the moment as he is unable to work and has no savings. The Tribunal accepts that the applicant may suffer financial difficulty in obtaining a job on his return to Poland, not being able to assist his parents financially in the same manner as he did when he worked in Australia, he may not be able to continue his current relationship with his girlfriend, that he will be unable to accept employment in Australia now offered, or that his father’s business is experiencing huge growth and seeks to expand in Australia. As it is a consequence of the type of visa held, that temporary visas holders are required to depart Australia when the visa ends, and the applicant has been in Australia since 2012 as the holder of temporary visas, the Tribunal does not accept that the applicant would not have been aware of the consequences of his temporary visa ceasing. The Tribunal is not satisfied the difficulties outlined above amount to hardship. The Tribunal places weight on these factors in favour of cancellation.

32. Considering the circumstances in which the ground for cancellation arose, the applicant and the primary visa holder had financial difficulties resulting in the breakdown of the relationship. The applicant does not suggest that the breakdown of the relationship was as a result of family violence nor does he suggest there were extenuating circumstances beyond his control that led to the grounds for cancellation existing. The Tribunal places no weight on  these factors either for or against cancelling the visa.

33. There is no evidence before the Tribunal to suggest that the applicant's past and present behaviour towards the Department has been unsatisfactory. The Tribunal weighs this factor neither for nor against cancelling the visa.

34. The Tribunal is also mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal is mindful that he may experience difficulties to establish a de facto relationship with his current girlfriend/de facto spouse or that the relationship might end. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

35. There are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes that there is no information before it that indicates that any other person currently holds a visa because the applicant held his visa. Therefore any cancellation of the applicant’s visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

36. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

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

    DECISION

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

    Lilly Mojsin
    Member