Juhasz (Migration)

[2021] AATA 3905

Juhasz (Migration) [2021] AATA 3905 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Akos Attila Juhasz
Mrs Katalin Agnes Drucker
Ms Skylar Ruby Yuhas

CASE NUMBER:  2013524

HOME AFFAIRS REFERENCE(S):          BCC2019/6983104

MEMBER:Amanda Upton

DATE:30 September 2021

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 30 September 2021 at 2:08pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – applicant did not commence employment within 90 days – conflict regarding salary – no further employment or sponsor – family hardship – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 140, 348, 360
Migration Regulations 1994, Schedule 8; Condition 8607

CASES

Rani & Ors v MIMA (1997) 80 FCR 379

Tien & Ors v MIMA (1998) 89 FCR 80       

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 August 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage 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 breached condition 8607(4)(b) as he did not commence employment for his sponsoring employer within 90 days after the grant of his Temporary Skill Shortage (subclass 482) visa (28 October 2019). 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. On Monday 26 April 2021, the applicant wrote to the Tribunal by email and indicated that he did not wish to attend a hearing in person and consented to a decision being made on the papers. In this correspondence he attached the decision and notification of the decision made by the Department. He then sent a further email containing further evidence for the consideration of the Tribunal. The material provided to the Tribunal appears to replicate that which was given to the Department in response to the Notification of Intention to Cancel the visa.

5. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

6. 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

7. 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

8. 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 8607 attached to the applicant’s visa. At 8607(4)(b) this condition requires that the visa holder must commence employment within 90 days after the applicant’s visa was granted.

9. The applicant was granted a subclass 482 visa on 28 October 2019. It expires on 28 October 2021.

10. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was FC Art Pty Ltd whose nomination was approved on 18 September 2019.

11. The Department decision record indicates that the applicant agreed that there were grounds for cancellation. The Tribunal considers that the information provided by the applicant to the Tribunal also supports this position.

12. 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

13. 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’.

14. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.   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. 

15. 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.

    The purpose of the applicant’s travel and stay in Australia.

16. The applicant arrived in Australia on 4 December 2013 as a dependent holder of a Subclass 570 student visa. He remained in Australia on two dependent subclass 572 visas between 23 October 2015 and 21 December 2016 in order to accompany his wife whilst she was studying.

17. The applicant was included as a dependent visa holder on a Regional Sponsored Migration Scheme, subclass 187 visa. This application was refused on 31 August 2018 and at the time of the Department’s decision was pending review before the Tribunal. The applicant remained on bridging visas until the grant of his subclass 482 visa on 28 October 2019.

18. The applicant was granted his subclass 482 visa for the purposes of working in Australia for an approved sponsor in a skilled occupation that could not be filled from within the Australian workforce. This was to work as an Art Teacher (private tuition).

19. There is no evidence before the Tribunal that the applicant has obtained further employment or an alternative sponsor since he received his subclass 482 visa, almost 2 years ago .The Tribunal notes that the applicant had indicated to the Department that he had some interest from prospective schools in relation to employment as an art tutor. This is also reflected in the information that the applicant provided to the Tribunal. The applicant was hoping that one of these interested schools would sponsor him.

20. Given that the applicant has not commenced work in the capacity for which he was granted the visa, the Tribunal considers that his purpose of travel and stay in Australia is no longer consistent with the grant of that visa. The Tribunal gives this factor weight in favour of cancellation of the visa.

    The extent of compliance with visa conditions

21. As discussed above, the applicant did not commence employment with his sponsor and nor has he obtained alternative sponsored employment since the grant of his visa in October 2019. The applicant has therefore been in breach of his visa condition for a lengthy period of time. The Tribunal notes the matters raised by the applicant as to why he has been unable to obtain further employment (discussed below), notwithstanding this however, the Tribunal considers the applicant’s non-compliance with his visa condition to be significant.

22. The Tribunal give this factor weight in favour of cancellation of the visa.

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

23. The applicant detailed to the Tribunal that a visa cancellation would cause his family extreme stress and hardship particularly given his young family and the real connection that they have to the community within which they now live as evidenced by the material provided to the Tribunal.

24. The Tribunal accepts generally, that the cancellation of a visa results in opportunities lost and disappointment. It also accepts that there is potentially a financial loss for the applicant. The Tribunal considers also that it is expected that there will be consequences to a visa cancellation, and these are such consequences. The Tribunal considers this balanced against the matters raised by the applicant and gives this factor some weight in favour of not cancelling the visa.

    
    
    
    

    Circumstances in which ground of cancellation arose.

25. The applicant did not commence work with his sponsor within 90 days of being granted the visa. The applicant detailed the difficulties that he had with his sponsor in that they had a conflict about his salary among other things. This was particularly difficult as the applicant had supported the establishment of the Art Gallery where he was to work. He felt that the sponsor took advantage of his position and pushed him out so that she could keep all of it for herself whilst having used his reputation, funds and community ties. On the basis of the material provided, the Tribunal accepts that the applicant was involved in the set-up of the gallery and his involvement continued after the gallery opened in January 2019.

26. The sponsor lodged an application in QTAC naming the applicant as the respondent in a dispute over a sum of $5 000. This matter was heard in August 2020 with the applicant in this matter successfully defending the claim made against him.

27. There is no material before the Tribunal upon which it could consider that the applicant attempted to rectify the conflict with his sponsor either through informal communication or more formal channels such as Fair Work Australia.

28. The applicant’s wife was pregnant at the time that the applicant was to start working with his sponsor and she suffered pregnancy complications that resulted in her having to reduce her hours of work. The applicant needed to support her through the last months of her pregnancy and their baby girl was born on 4 May 2020.

29. The applicant states that he has tried to obtain a new sponsor with a number of schools expressing interest in employing him. He also stated that finding a sponsor was made difficult due to the bushfires at the end of 2019 and COVID.

30. The Tribunal accepts that these are clearly circumstances that have had an impact on employment opportunities and the ability to in fact search for what opportunities do exist and the Tribunal accepts that this would have impacted on the applicant. The Tribunal however also balances this against the time that has elapsed since the applicant was granted his visa and considers that this time is sufficient for the applicant to have had a reasonable opportunity to find alternative employment.

31. The Tribunal also takes into consideration the impact of the birth of the applicant’s baby and his wife’s difficult pregnancy on his ability to obtain a new sponsor and even taking this into account in conjunction with the other issues discussed above, remains of the view that the applicant has had sufficient time to find an alternate employer.

32. The Tribunal has sympathy for the applicant with respect to the situation he appears to have found himself in with his involvement in the gallery and breakdown of the relationship with the sponsor and gives this some weight in considering how it was that the visa cancellation came about. The Tribunal however balances this against the time that the applicant has had to rectify his visa compliance and gives this factor weight in favour of cancelling the visa.

    
    
    
    
    

    Past and present behaviour of the applicant towards the Department.

33. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

    Whether there would be consequential cancellations under s.140

34. The applicant is married with a dependent child and their visas are subject to consequential cancellation under s.140.

35. Considering the concerns that the applicant raises with respect to the stress and hardship that his family would experience if his visa was to be cancelled the Tribunal gives this factor a small amount of weight in favour of not cancelling the visa.

    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

36. 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).

37. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.  The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

38. Accordingly, the Tribunal does not give this consideration any weight to these considerations, either in favour of or against cancellation of the visa.

    If the visa is a permanent one, whether the visa holder has strong family, business or other ties in Australia

39. As the applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration, either in favour of or against cancellation of the visa.

    Any other relevant matters

40. The Tribunal notes the numerous references that the applicant has provided detailing his and his wife’s connection to and contribution to the community and gives these matters some weight in favour of not cancelling the visa.

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

    DECISION

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

43. The Tribunal has no jurisdiction with respect to the other applicants.

    Amanda Upton
    Member