Hay (Migration)

[2021] AATA 2334

Hay (Migration) [2021] AATA 2334 (18 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Justin Ron Hay

CASE NUMBER:  2014415

HOME AFFAIRS REFERENCE(S):          BCC2020/1256751

MEMBER:Vanessa Plain

DATE:18 June 2021

PLACE OF DECISION:  Melbourne

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 18 June 2021 at 5:14pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 60 days – impact of COVID-19 pandemic on business – dispute with employer disagreement was about food safety issues – new employers delayed nomination applications – financial hardship – decision under review set aside

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 2, cl 457.223; Schedule 8, condition 8107; r 2.12

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Visnumolakala v Minister for Immigration [2006] FMCA 1209  

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 September 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 breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 60 consecutive days. 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 via videolink on 18 June 2021 to give evidence and present arguments.  

4. 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

5. 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.

   Particulars of the ground for cancellation

6. 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 attached to the applicant’s visa.

7. The Delegate’s decision record contends that the applicant has not complied with subclause (3)(b) of condition 8107 attached to their subclass 457 (Temporary Work (Skilled)) visa, which states:

   “8107

   (3) If the visa is, or the last substantive visa held by the applicant was, a subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):

   […]

   (b)if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days;

8. The Delegate’s decision record of 22 September 2020 provides as follows:

   “The standard business sponsor who nominated the visa holder in the most recently approved nomination for this visa is T & R DRIFTWOOD PTY LTD (‘the sponsor’), whose nomination was approved on 01 November 2019. The sponsor has advised the Department that the visa holder ceased employment with them effective 05 January 2020. This appears to indicate that the visa holder has not complied with condition 8107(3)(b) because the period during which he has ceased employment has exceeded 60 consecutive days. Based on this information, there appear to be grounds for cancelling the visa under s116(1)(b) of the Act because it appears the visa holder has not complied with condition 8107.”

9. A Notice of Intention to Consider Cancellation dated 24 June 2020 (NOICC) was sent to the applicant at their nominated address.  The applicant responded to the NOICC in writing on 10 July 2020.  The delegate summarized the applicant’s response as to whether there were grounds to cancel their visa, as follows:

   “The visa holder provided the following reasons:

    He stated that “Previously to the outbreak, I did have a potential employer lined up to enter the nomination to sponsor my current visa”.

    However, he added “when the COVID crisis restrictions expanded…I chased up the sponsor’s nomination only to discover that it had not been entered due to the fact they were unaware when they would re-open therefore held off on the expense”.

10. On 27 May 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 11 June 2021.  The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case. 

11. The applicant provided the following documents to the Tribunal:

    (a)The delegate’s decision record

    (b)Temporary work visa subclass 457 notification  

    (c)Signed employment contract with the Geelong Hotel dated 26 August 2020

    (d)Text messages in July 2020 between the applicant and Matt at the Geelong Hotel

    (e)Bank account statements, phone bills and health insurance documents   

    (f)Interview confirmation email with recruiter dated 21 January 2020

    (g)Emails between the applicant and Two Sugars cafe

    (h)Written statement of the applicant

    (i)Further written statement of the applicant dated 10 June 2021

12. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that their visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that they had not complied with the conditions of their visa. Specifically, the 8107 condition to which their visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

13. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

14. As at the hearing, the applicant stated in his oral evidence that he left his employer on 5 January 2020.  His employer operated a café called the Drift Wood Café where the applicant worked as the food safety manager.  He stated that he had a disagreement with the chef who was also the owner.  The disagreement was in relation to food safety issues. 

15. The applicant further stated that thereafter he worked briefly at Two Sugars café.  He asked that employer to nominate him, but they got cold feet, as it was right when the Covid-19 pandemic struck. 

16. In July 2020, he started working at the Geelong Hotel as a chef.  He signed a contract of employment on 26 August 2020.  Geelong Hotel was supposed to lodge the nomination for the applicant in late August 2020, but due to their failure to advertise the position correctly for the period of 28 days, the commenced the advertisement again in late August.  The visa was cancelled on 22 September 2020 before the advertisement period had run its course.  The Geelong Hotel informed the applicant that he would have to rectify his visa situation before he would be able to commence employment and the Geelong Hotel lodges the nomination. 

17. Based on the applicant’s evidence, the Tribunal finds that the applicant ceased employment with the sponsoring business on or about 5 January 2020.  The Tribunal further finds that the period during which the applicant ceased employment exceeded 60 consecutive days.  Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

18. For these reasons, the Tribunal finds 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 power to cancel the visa should be exercised.

    Consideration of discretion

19. 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’.

20. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] 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 an applicant.[2]

    [1] See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for

21. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    Purpose of applicant’s travel to and stay in Australia

22. The Subclass 457 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. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for the Drift Wood Café as a food safety manager or otherwise in the hospitality sector on a temporary basis.

23. The applicant was unfortunately placed in an untenable workplace environment at Drift Wood Café. 

24. The Tribunal places significant weight upon the steps taken by the applicant to obtain alternative employment from January 2020 onwards, which is wholly supported by the suite of contemporaneous documents produced by him, as evidence of the genuine steps taken by the applicant to rectify the breach of his visa condition, as set out above in detail.

25. It is further highly likely that the only reason the applicant did not obtain a nomination from his employer at Two Sugars café was due solely to the COVID-19 pandemic.  Moreover, it is apparent, based upon the signed contract with the Geelong Hotel that this employer had every intention of nominating the applicant within the required timeframe and would have done so but for a mix up with the job advertisement dates and requirements.      

26. 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 457 visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.

27. The Tribunal finds that this purpose still exists as the applicant has a signed contract of employment with the Geelong Hotel that is now contingent only upon him rectifying his visa status, which he has clearly taken all reasonable steps towards.     

28. The Tribunal affords this consideration minor weight in favour of not cancelling the visa.

    The extent of compliance with visa conditions

29. The non compliance with a visa condition arose when the applicant ceased working with their sponsoring employer in January 2020.  The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 60 days. This was contained in a condition of their visa, which stated if the employment ceases it ‘must not exceed 60 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor and which successfully nominated the applicant to work at the business within that 60 day period.

30. However, the Tribunal is satisfied that the applicant took honest and reasonable steps to procure new employment as set out above and the fact the applicant has secured new employment contingent upon a successful review at the Tribunal. 

31. The Tribunal hearing means that the Tribunal places little weight upon the failure to procure employment within 60 day in these circumstances.   

32. The applicant informed the Tribunal that they have however, complied with all other visa conditions. The Tribunal has no reason not to accept that evidence.

33. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The circumstances in which the ground for cancellation arose

34. The applicant ceased their employment at the sponsoring business in January 2020.  The Department did not proceed with the visa cancellation until September 2020. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with another business sponsor.

35. The Tribunal notes that in the applicant’s evidence they stated that they started looking for work with new employers in January 2020 and did in fact secure new employment between April and August 2020, but the applicant’s employers did not attend to lodging the appropriate nomination form with the Department for reasons associated with the pandemic and due to a mix up with the required advertising times for the applicant’s job. 

36. The Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant due to the work environment in which he found himself initially, that is, his former employer did not want to follow the applicant’s food safety advice and so terminated his employment.  The Tribunal places weight upon the fact that the applicant took honest and reasonable steps to immediately rectify the visa breach and but for an administrative mix up with the Geelong Hotel, he would have secured nominated employment status with them by September 2020. 

37. In his statement of June 2021, the applicant stated as follows:

    “I would like to highlight, I did follow the requirements for job application, skilled chef positions that I apply for can take a course of weeks and sometimes months to find the right candidate. While my visa was being considered for cancellation I was in recruitment with the employer. I understand that immigration need to update policies and procedures every six to twelve months however on this occasion it delayed my application being lodged by a further 28days.

    During the recruitment process all contracts and job offers had been signed, the job advert had been advertised for 28days on 2 Australia job sites. When it came to lodging the application, immigration had updated the requirements and a further third site was required to advertise the role of head chef for a further 28days.

    During this period, I waited to allow other applicants the opportunity to apply to ensure there were no Australians which were suitable for the position. There were no suitable applicants at the time, I believe the hotel continue to advertise the role. Unfortunately, my visa was cancelled in this period which then meant they could no longer lodge the application to sponsor myself.”

38. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

39. The applicant has described mental, emotional and financial hardship that he has endured as a result of his visa cancellation. In his statement, he stated as follows:

    “I have found this whole experience very upsetting, prior to the meeting I would like you to know the strain this ordeal has had on my physical and mental health. I am sure I am not alone in feeling stress and anxiety with the proceedings such as these however I am still finding it very hard to process the fact that after 12 years in Australia I may need to depart.  If I find the proceedings a bit much on the day, I may ask for a short break, when anxious I receive pains in my chest for 5-10 mins, these do pass I just need to regroup, with everything going on it has just been an emotional roller coaster however I am doing my best to keep everything in order. I have also asked for some leave at work as juggling work and this proceeding in the same space is quite daunting.

    My previous statement mentioned my financial situation or rather my assets I had which I could sell during the covid pandemic to support myself. This did serve a purpose for a short time however I am at the point if I do not work, I will be in financial hardship. I do still have transport which I currently use in day-to-day activities. As I no longer have surplus funds, I have not received professional help in replying to your meeting so I apologise in advance if this is not presented as formal as it should be. I also applied for reduced fees in this tribunal case in the beginning due to my financial circumstances, this was granted which has helped me to proceed otherwise I would not have the funds.”

40. The Tribunal has taken into consideration the applicant’s evidence and the hardship the applicant faces.  It particularly acknowledges that it is presently difficult to leave the country due to Covid and it acknowledges that the applicant, as a worker in the hospitality industry, has been afflicted by the COVID-19 pandemic to a degree largely unparalleled in other sectors of the economy.  

41. Balanced against any potential hardship to the applicant and their family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

42. The Tribunal acknowledges that the applicant will suffer some hardship and gives this consideration some minor weight against cancelling the visa. 

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

43. The applicant responded to the NOICC promptly and concisely. There is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

44. The Tribunal gives this consideration some minor weight against cancelling the visa.

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

45. There is no evidence before the Tribunal of any other people being dependent upon his visa and as such would be consequentially cancelled under s140 of the Act.  

46. As there is no evidence before the Tribunal as to any consequential cancellations, the Tribunal does not give this factor any weight for or against a decision to cancel the visa for this consideration.

    Legal consequences of a decision to cancel the visa

47. The applicant is currently on a bridging visa as a result of the current review process. 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 them to remain in Australia. If that is the case, they have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

1. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act because they breached the 8107 condition imposed on their visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa The applicant’s proposed employer, Geelong Hotel, is an employer who is approved as a standard business sponsor, but has yet to submit an approved business nomination form in relation to the applicant because his visa was cancelled before it was able to do so.

2. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

3. The Tribunal is mindful that s.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 s.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 skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

4. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia.  These are mandatory and intended consequences of the legislation.  However, given the matters set out above, the Tribunal considers that theses consequence in the circumstances of this case would be manifestly unfair.

5. The Tribunal therefore gives this consideration some weight against cancelling the visa.

   Australia’s international obligations

6. 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).

7. There is no evidence before the Tribunal as to whether the applicant has children in Australia.

8. The Tribunal therefore does not give any weight for or against cancelling the visa for this consideration.

   The impact of any victims of family violence

9. There is no evidence before the Tribunal regarding this issue.

   Any other relevant matters

10. There is evidence before the Tribunal as to the difficulty in returning to the applicant’s home country due to Covid-19.

11. The Tribunal acknowledges that the applicant may experience difficulties in returning to the United Kingdom due to the travel restrictions in place as a result of the COVID-19 pandemic. The Tribunal observes that in this regard the Government has put in place several contingency options for visa holders that find themselves in Australia with limited options for returning home and that relevant information is available on the Department’s website.

12. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.  There are no other relevant matters before the Tribunal. 

13. The matters set out above do not reveal any bad faith on the part of the applicant, having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa.

14. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

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

    Vanessa Plain
    Member

    
    
    

Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration
[2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for
Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for
Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship

[2007] FMCA 1492 at [55].