Healy (Migration)

[2019] AATA 1622

Healy (Migration) [2019] AATA 1622 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Noelle Healy

CASE NUMBER:  1720627

HOME AFFAIRS REFERENCE(S):           BCC2017/2654615

MEMBER:Amanda Mendes Da Costa

DATE:17 May 2019

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 17 May 2019 at 11:44am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – position no longer offered – consideration of discretion – re-employed by sponsor – reference letters from current management – degree of hardship – risk of deterioration in mental health – 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 28 August 2017 made by a delegate of the Minister for Immigration and Border Protection 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 visa condition 8107(3)(b) which required that if the applicant ceased employment – the period during which the holder ceased employment must not exceed 60 consecutive days. 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 6 May 2019 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.

   Does the ground for cancellation exist?

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(3)(b) attached to the applicant’s visa. This condition requires that if the visa holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days.

7. The standard visa holder who nominated the applicant in the most recently approved nomination for her subclass 457 visa was Entity Solutions Pty Ltd (ES), the sponsor.

8. On 5 May 2017 ES advised the Department in writing that the applicant had ceased employment with it, effective 8 March 2017.

9. Neither the applicant nor the sponsor informed the Department that the applicant had returned to work for the sponsor or an associated entity of the sponsor, within 60 consecutive days of ceasing employment.

10. No Temporary Business Entry nomination had been approved for the applicant in relation to any other sponsor.

11. On 16 August 2017 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of her visa.

12. On 23 August the applicant responded to the NOICC in a series of emails, in which she acknowledged that her employment with the sponsor ceased on 8 March 2017 and that she had not returned to work for the sponsor or an associated entity of the sponsor, within 60 consecutive days of ceasing employment.

13. The Tribunal notes that the applicant’s employment was with ES, a professional services company which provides a range of support services including billing, management and related services to client companies.  One of those companies is Cotton On.

14. In her oral evidence at the hearing the applicant confirmed that she had ceased employment with her sponsor in March 2017 when Cotton On terminated its contact with ES.  The applicant did not return to employment with ES for a period in excess of 60 consecutive days.    The applicant explained that her work for Cotton On was in its Visual Merchandising department and her role was that of a finishing artist, tidying up the work of the company’s graphic designers.  The applicant described the work as enjoyable although problems with her immediate supervisor developed and had an impact on her working environment.  The applicant said that her supervisor needlessly found fault with her behaviour and work performance and this behaviour amounted to workplace bullying.  When she complained to her senior supervisor, he acknowledged that many of her supervisor’s complaints were without merit.  He initially offered the applicant support and subsequently moved her into another department to separate her from the supervisor with whom she was experiencing difficulties.

15. The applicant’s senior supervisor eventually offered her work from home.  Although the applicant accepted this offer, she did not receive any further work from Cotton On and her employment with ES was terminated in March 2017.

16. Based on the above evidence, the Tribunal is satisfied that the applicant failed to comply with condition 8107(3)(b) attached to her visa in that her employment with the sponsor ceased for in excess of 60 consecutive days. Accordingly 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 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. The applicant is a national of Ireland who initially came to Australia in 2014 for a brief holiday.  She returned in December 2015 for a longer working holiday and was granted the Subclass 457 visa on 16 December 2016.

19. The applicant was granted the subclass 457 visa for the purpose of being able to fill a skill shortage and work in Australia for an approved sponsor, in a skilled occupation for which she was specifically nominated to work in and which could not be filled from within the Australian workforce.  That purpose ended on 8 March 2017 which was the date of which the applicant ceased employment with the sponsor.

20. The subclass 457 visa allows the primary visa holder 60 days from ceasing employment with their sponsor, in which to pursue finding a new sponsor or to apply for another visa in line with another purpose for remaining in Australia, or to make arrangements to depart Australia.

21. The Tribunal accepts that although the applicant’s employment with the sponsor ceased in March 2017, the applicant has been further employed by the sponsor, commencing in March 2019. 

    The extent of compliance with visa conditions

22. There are no other known instances of non-compliance with visa conditions by the applicant.

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

23. The applicant told the Department that the loss of her employment with the sponsor led to the applicant having difficulties in paying her rent and living expenses.  She was forced to seek financial assistance from her mother in Ireland and went to live with friends who provided her with financial support.  The applicant said that the loss of her employment and her financial difficulties led to a re-occurrence of a depressive illness and she retreated into the room in the house in which she was staying, cried frequently and didn’t want to go out or meet other people.

24. The applicant sought professional assistance from Dr Siobhan Ryan, clinical psychologist whom she initially saw on 4 May 2017, 18 May 2017, 14 July 2017 and 17 August 2017.  The Tribunal accepts the applicant’s evidence that she was unable to afford the cost of more frequent sessions with Dr Ryan whilst she was unemployed.

25. The applicant provided medical evidence from her treating psychologist Dr Siobhan Ryan and a statement from Dr Daiva Dawson, the applicant’s general practitioner.

26. In her letter dated 22 August 2017,Dr Dawson indicates that the applicant’s medical condition (Depression and anxiety) was due to exceptional circumstances beyond her control and had an impact on her ability to function and seek further employment.

27. The Tribunal has been provided with report regarding the applicant from Dr Ryan dated 18 August 2017 and 7 May 2019.  In her earlier report Dr Ryan opines that the applicant is presenting with multiple symptoms of anxiety and depression that can be classified as acute and has demonstrated that these symptoms have significantly impacted her functioning throughout treatment.  Dr Ryan reports that the applicant has observed that the deterioration in her mental health occurred following difficulties that she experienced in her previous workplace.

28. In her second report Dr Ryan notes that the applicant attended for further appointments in 2018.  She reiterates her previous diagnosis of the applicant and observes that the frequency of the applicant’s appointments with her has been adversely affected by the cost of treatment and the applicant’s ineligibility for Medicare rebates, due to her migration status.    

29. The applicant told the Tribunal that if her visa was cancelled and she returned to Ireland she would have limited support from her family.  In any event she was advised by her general practitioner in Ireland (before she arrived in Australia) that she should move away from her family due to the negative effect contact with them had on her mental health.

30. The Tribunal accepts that the applicant is a single woman without a partner or dependents.  She has no family support in Australia.  The Tribunal further accepts that the applicant would have limited family support if her visa was cancelled and she returned to live in Ireland.

31. Although the Tribunal is satisfied that the applicant had a pre-existing mental health condition when her employment with the sponsor ceased in March 2017 it accepts that her subsequent problems with depression were exacerbated by her unemployment and financial difficulties.  The Tribunal further finds that if the visa is cancelled and the applicant returns to Ireland her depressive symptoms are likely to be aggravated and she risks a significant deterioration in her mental health.

    Circumstances in which the ground of cancellation arose

32. The Tribunal is satisfied that the applicant’s employment with the sponsor ended in March 2017 when her position with Cotton On ceased.  The applicant acknowledged as much in her response to the NOICC and her oral evidence at the hearing.  The Tribunal is satisfied that the cessation of the applicant’s position with Cotton On and her employment with the sponsor was due to the decision of Cotton On to no longer offer the position to the application in its graphic design team.

    Past and present behaviour of the visa holder towards the Department

33. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.  The Tribunal notes that the applicant has been co-operative in providing contact details, when requested by the Department and responded to the NOICC in a timely manner.

    Whether there would be consequential cancellations under s.140

34. There are no persons whose visa would be subject to consequential cancellation under s.140 of the Act.

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

35. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained.  There is no suggestion that she will be detained indefinitely.  The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to an exclusion period in relation to some future visa applications.  There are no provisions in the Act which prevent the applicant from making a valid application without the Minister’s intervention.

36. The Tribunal has also taken into account that the applicant is a citizen of Ireland and would be able to return to that country if her visa is cancelled.

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

37. There is no evidence and the applicant does not claim that Australia’s non-refoulement obligations, including the best interests of children would be breached as a result of the cancellation.

    Any other relevant matters

38. After a period of 10 months of unemployment, the applicant obtained a full-time position as a finished artist in January 2018 with kikki.K.  This company was founded in Sweden in 2001, with several retail outlets in Australia, selling stationary, leather goods and homewares.  The applicant has recently obtained a further position with the company as a graphic artist in its Melbourne office.

39. The Tribunal has been provided with a Temporary Skill Shortage Nominee Employee Agreement between ES and the applicant dated 19 March 2019.  This agreement provides that the applicant has agreed to be engaged by ES to provide hers services as a graphic artist to kikki.K.  The Tribunal accepts that this agreement shows that the applicant has obtained further employment with her sponsor.

40. The Tribunal has also been provided with letters from Rebecca Shepherd, Design Manager of kikki.K dated 7 November 2018 and Sophie Viska, Wholesale Creative Manager of kikki.K dated 18 April 2019.

41. Ms Shepherd attests to the applicant’s skills as a graphic designer. In her earlier letter she describes the applicant as a skilled graphic designer, illustrator and finished artist with unique talents.

42. In Ms Shepherd’s second letter she opines:

    Since joining kikki.K, Noelle has proven to be dedicated to her role and is a highly valued member of the design team, both professionally and personally.  She has offered her skills and knowledge to support other creatives in the team, has happily taken on additional tasks at short notice.  She’s worked overtime to meet tough deadlines.  Noelle is passionate about producing high quality work and worked to improve the standards of the whole team.

43. Ms Viska describes the applicant as possessing an invaluable knowledge of the processes required to create the company’s wholesale catalogue, an extremely hard worker and an employee who has gone above and beyond what was required to meet her deadlines on all her projects.

44. Considering the applicant’s circumstances as a whole and particularly her mental health condition and the fact that she has obtained further employment with the sponsor, the Tribunal concludes that the visa should not  be cancelled

    DECISION

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

    Amanda Mendes Da Costa
    Member