Hawkes (Migration)

[2021] AATA 3916

Hawkes (Migration) [2021] AATA 3916 (23 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jason Christopher Hawkes

CASE NUMBER:  2017197

HOME AFFAIRS REFERENCE(S):          BCC2020/1425244

MEMBER:Noelle Hossen

DATE:23 July 2021

PLACE OF DECISION:  Perth

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 23 July 2021 at 11:42am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Airconditioning and Refrigeration Mechanic – ground for cancellation – ceased employment with sponsor – stood down until further notice with no pay – consideration of discretion – pending nomination with new employer – termination beyond applicant’s control – degree of hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 November 2020 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 the applicant had not complied with condition 8107(3) (b). 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 15 July 2021 to give evidence and present arguments.

4. The applicant did provide a lot of documents to the Tribunal in support of his application which included the Decision of the Delegate, copies of his Certificates and academic transcripts. The Tribunal has read all of the documents supplied by the applicant.  

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?

   s.116(1)(b) - non-compliance with conditions

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 (3) (b) attached to the applicant’s visa. This condition requires the applicant to be in employment and for the period of unemployment not to exceed 60 consecutive days.

8. The applicant had been granted a Visa subclass 457 on the 3 May 2017 which expired on the 3 May 2021. His visa was cancelled on the 17 November 2021.

9. The applicant had confirmed in his NOICC response that his employment had ceased on the 8 April 2020

10. In the Delegate of the Department’s Decision it is stated as follows: ”The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is SNOWDONIA AIRCONDITIONING Pty Ltd (“the sponsor”), whose nomination was approved on 3 May 2017.The sponsor advised the Department that the visa holder had ceased employment with them effective 8 April 2020. This appears to indicate they have not complied with condition 8107 (3) (b) because the period during which the visa holder has ceased employment exceeded 60 consecutive days. Based on this information, there appear to be grounds for cancelling the visa under s 116 (1) (b) of the Act because it appears the visa holder has not complied with condition 8107.”  

11. In the Decision, the Delegate states that the applicant did not accept that he had breached the conditions of the visa as he had been provided with a letter from his employer that stated that he was stood down until further notice with no pay. He contended that he did not cease employment and that his employment was in fact terminated.

12. He had indicated that he had secured employment. He had stated to the Department that he had secured employment and that his employer intended to lodge a nomination to resolve the visa compliance within Australia.

13. The applicant confirmed to the tribunal and accepted the proposition that he was unemployed for a period exceeding 60 consecutive days at the time that the Department made its Decision.

14. Information before the Department at the time that the Decision was made confirmed that IC DUCTING Pty Ltd lodged an Employer Nomination Scheme nomination on the 9 October 2020.

15. However, the nomination did not resolve the current non compliance stipulated under condition 8107.The Tribunal accepts the finding made by the Department that at the time that the Decision was made the applicant was not complying with condition 8107.

16. 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

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.’

    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:

18. In the Delegate’s Decision it is stated as follows:

    “The visa holder was granted a Temporary Work (Skilled) (subclass 457) visa on the 3^rd May 2017 for the purpose of undertaking employment in the nomination occupation, Airconditioning and Refrigeration Mechanic (ANZSCO342111) with the approved sponsor. Since then, there has been no nomination in line with the current Temporary Work visa made on his behalf. As such, the visa holder has not had a new approved nomination in place and has not worked in the nominated occupation for a period exceeding 60 days and has been unemployed for a period exceeding 60 days. The visa holder claimed that he had attempted to secure employment while in Australia and has provided evidence of his attempts. He has since stated in his NOICC response that he has since secured employment but has not stated on what date he began the employment.”.

19. The applicant initially arrived in Australia on a working holiday visa in or about September 2016. He was working for a company who agreed to sponsor him and was able to secure a subclass 457 visa in 2017.

20. His employment was terminated as a result of the effects of the COVID-19 pandemic and the loss of his employment was out of the control of the applicant.

21. However, to his credit he has managed to obtain employment in his chosen occupation and is awaiting the result of his application for a visa that he lodged .

22. The Tribunal has considered his position and places a lot of weight on the fact that the applicant has managed to do his best to secure employment in his chosen occupation in Australia, in favour of not cancelling the visa.

    the extent of compliance with visa conditions:

23. The Tribunal finds on the evidence that the applicant has done his utmost to comply with the conditions of his visa. The applicant was terminated from his employment due to the downturn in the industry due to the COVID-19 pandemic, so the circumstances of his termination was beyond his control.

24. Following the termination, he has worked hard in securing employment in his nominated employment. He has secured employment in that field although he has lodged an application for a different visa subclass, the Tribunal finds that those factors should be weighed in favour of the applicant’s case.

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

25. At the hearing the Tribunal explored the hardship to be caused to the applicant if the visa is cancelled and he is made to return to his home country and faces a 3-year exclusion period with limitations on his ability to return to Australia.

26. He does not have a good relationship with his parents, and they are estranged. His parents live in Europe. He said that he was employed by his father’s business but had an argument with his father as he was being paid the minimum wage. He had applied to live in Australia as he was at a low ebb in his life as he had broken up with his girlfriend as well

27. If he had to return to his home country, he would have nowhere to live as he could not stay with his family. In Australia he presently has a job and a long-term relationship with his girlfriend.

28. He has been working for his present employer for 6 months and works for 35 hours a week as there is a high demand for his skills. He installs air-conditioning in commercial and domestic buildings. He is employed at the casual rate of $35 per hour.

29. The Tribunal has placed a lot of weight on the factors as contained in the evidence of hardship to the applicant if his visa is cancelled, in favour of not cancelling the visa.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control:

30. The applicant had no control over the circumstances which led to his visa being cancelled as it was due to the lack of work created by the COVID-19 pandemic. The applicant to his credit has remedied the situation by obtaining work in his chosen occupation. He told the Tribunal that he commenced work on or about the 8 January 2021. He said that he is highly skilled in his occupation because he has been working solidly in the industry since he was 16 years of age.

31. The Tribunal weighs the fact that the applicant has secured employment and submitted a new visa and as stated in the Decision of the Delegate the applicant has been proactive in resolving his visa issues, in favour of the applicant’s case.

    past and present behaviour of the visa holder towards the department:

32. The applicant has complied and cooperated with the requests for information to and from the Department. The Tribunal weighs those factors in favour of the applicant’s case.

    whether there would be consequential cancellations under s.140:

33. The applicant does not have any dependant family members whose visas will be cancelled because of the cancellation of the visa.

34. The Tribunal is unable to give this consideration any weight for or against the cancellation of the visa.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention:

35. The applicant is presently on a Bridging visa awaiting the outcome of this application. The applicant would be affected by Section 48 of the Act, which would cause him to have limited options if applying for further visas whilst he is in Australia.

36. The Tribunal places some weight in favour of not cancelling the visa due to the uncertainty that may be caused to the applicant if his visa is cancelled.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].):

37. The circumstances of this case do not engage Australia’s international obligations and the cancellation would not lead to a breach of Australia’s obligations. The Tribunal is unable to attach any weight to thee factors contained in this paragraph.

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

    DECISION

39. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Noelle Hossen
    Member