Laue (Migration)

[2020] AATA 4192

Laue (Migration) [2020] AATA 4192 (30 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Henning Laue

CASE NUMBER:  1918470

HOME AFFAIRS REFERENCE(S):          BCC2019/2453854

MEMBER:Nicola Findson

DATE:30 July 2020

PLACE OF DECISION:  Perth

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

Statement made on 30 July 2020 at 2:30pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – approved ceased employment for over 60 days – applicant released after imprisonment – employment terminated – sponsoring business went into administration – no new approved nomination by an approved sponsor – applicant departed Australia – separation from family members – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8607

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s 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, as the holder of a Temporary Skill Shortage (Subclass 482) visa, failed to comply with a condition of that visa. In particular, the delegate found that the applicant failed to comply with paragraph 8607(5) of condition 8607 which states that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant was represented in relation to the review.

5. On 7 July 2020, the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone.  The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 29 July 2020. 

6. On 22 July 2020, the Tribunal received a response to the hearing invitation, which indicated that the applicant did not intend participating in the hearing and that he consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear.  The Tribunal also notes that in response to the hearing invitation the applicant’s representative indicated that at the time he had been engaged to assist the applicant with the review, the applicant was also dealing with a criminal matter and was subsequently sentenced to a term of imprisonment in respect of that matter.  The representative indicated to the Tribunal that although the applicant had been released from criminal detention in about April 2020, he had likely returned to his home country of Denmark.

7. Given that the applicant has provided his consent to the Tribunal deciding the review without him appearing before it, the Tribunal has proceeded to make a decision on the information before it.

8. 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

9. 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?

10. 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. It relevantly requires the applicant to work only in the occupation listed in the most recently approved nomination. Also, condition 8607(5) requires that if the applicant ceases employment, the period during which he ceases employment must not exceed 60 consecutive days.

11. According to the information in the decision record, which was provided to the Tribunal with the application for review, the applicant was sponsored by GD Pork Pty Ltd to work in the nominated occupation of Pig Farmer.  He was granted a Subclass 482 visa on 17 May 2018 and was subject to condition 8607. The delegate’s decision records that the Department received information that the applicant had ceased employment with his sponsor (which had entered into external administration) on 12 April 2019.

12. On 18 June 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) on the basis that he was in breach of condition 8607.  The applicant responded to the NOICC within the prescribed period and did not dispute the grounds for cancellation.  In his response, he indicated that his employment was terminated on 12 April 2019 and he was currently unemployed, without the possibility of finding another sponsor.  He indicated in his response that he had been required to surrender his passport in September 2018, because of a charge against him which was likely to be settled in August 2019.  He indicated that it was his intention to leave Australia as soon as he was able to.

13. On 1 July 2019 the delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had ceased employment with the sponsor for a period exceeding 60 consecutive days, and had therefore breached condition 8607. The delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

14. Other than the decision record, the applicant did not provide any submissions to the Tribunal with the application for review.

15. The Tribunal has considered the evidence before it, and as there is no evidence to the contrary, the Tribunal finds that the applicant ceased employment with his sponsor on 12 April 2019.  The Tribunal consequently finds that the period during which the applicant ceased employment exceeded 60 consecutive days.  As the applicant has not complied with paragraph 8607(5), the Tribunal finds that he has breached condition 8607.

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’.

18. The Tribunal would have discussed with the applicant, at his scheduled hearing, all of the relevant circumstances to be taken into account when considering whether to exercise its discretion to cancel the visa, including the factors set out in the Department’s guidelines.  The applicant, however, did not avail himself of the opportunity to give his oral evidence at the hearing. 

    The purpose of the visa holder’s travel and stay in Australia

19. The Tribunal finds that the purpose of the applicant’s travel to and stay in Australia was to work in Australia. The Tribunal finds that the purpose of working as a pig farmer for the sponsor, GD Pork Pty Ltd, no longer exists as the applicant ceased working for the sponsor in April 2019.  There is no evidence that the applicant has found a new approved standard business sponsor that has applied for approval of a nomination and that nomination has been approved.  The Subclass 482 visa is a temporary visa of a limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal finds that this purpose no longer exists in relation to the applicant.

20. In addition, the delegate’s decision records that in his response to the NOICC, the applicant indicated that it was his intention to leave Australia as soon as it was possible for him to do so.  Departmental records indicate that the applicant did depart Australia on 7 May 2020.

21. In the circumstances, the Tribunal finds that this consideration weighs in favour of the cancellation of the visa.

    Degree of hardship that may be caused

22. The Tribunal has had regard to the limited evidence before it as to the degree of hardship that may be caused to the applicant if the visa is cancelled. Specifically, the Tribunal recognises that the applicant has spent a considerable period of time in Australia as a visitor and subsequently as a skilled worker.  It follows that the Tribunal accepts that the applicant will have connections with Australia and that the cancellation of his visa would be disappointing and that there may be financial and emotional consequences.

23. The Tribunal has also considered information set out in the delegate’s decision record which indicates that the applicant’s wife and two children hold their own respective temporary visas in Australia, and are not dependants of the applicant’s visa.  The delegate records that the cancellation of the applicant’s visa and his consequent departure from Australia, may cause him to be temporarily separated from his wife and children. However, the Tribunal is of the view that the applicant held a temporary visa and therefore would not have had a real expectation that he would be able to remain in Australia on a permanent basis.  The same could also be said for his family members, and it is open to them to depart Australia, to remain or reunite with the applicant, if they choose to do so.  Therefore, any separation of the applicant and his family members does not need to be a permanent one.

24. The Tribunal attributes some weight to this factor, which would weigh against the cancellation of the visa.

    Circumstances in which ground of cancellation arose

25. The Tribunal has considered the information before it, that the applicant’s employment terminated because his sponsor went into administration.  The Tribunal accepts that this circumstance was outside the applicant’s control and that he would have continued to work for the sponsor if he had the choice.  However, at the time of the Tribunal’s decision, it has been over 15 months since the applicant ceased employment with his sponsor, and notwithstanding serving a short term of imprisonment in respect of a criminal offence, he has not worked at all since this time.   The Tribunal is of the view that, if he had wanted to (and it appears he did not given he indicated he was not interested in another visa and wanted to leave Australia as soon as he could), the applicant has had time since the Department’s decision to cancel his visa on 1 July 2019 to make attempts to secure further sponsored employment.  The Tribunal gives this factor little weight against the cancellation of the visa.

    The extent of compliance with visa conditions 

26. There is no evidence before the Tribunal which suggests that the applicant has not complied with visa conditions, other than condition 8607. The Tribunal gives this factor some weight against the visa being cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

27. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, if the visa is cancelled, the applicant will have limited options to apply for further visas in Australia. 

28. The Tribunal notes that the applicant’s stated intention to the Department was that he would return to Denmark when it was possible for him to, and that he has now departed Australia.  Nevertheless, the Tribunal gives these consequences some weight against the cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

29. According to the delegate’s decision record, there is no evidence that the applicant has been uncooperative towards the Department.  The Tribunal gives this factor little weight against the cancellation of the visa.

    Whether any international obligations would be breached as a result of the cancellation

30. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations in this case. 

31. The delegate’s decision records that the applicant’s children, who are citizens of Denmark, are also minors (aged 15 and 11).  Therefore, the Convention on the Rights of the Child is a relevant consideration in this case.  The Tribunal is of the view that in the event that the applicant’s visa is cancelled, his children could remain in Australia under the care of their mother (also a citizen of Denmark) until their temporary visas cease.  It would then be open for them to return (if they haven’t already) to reunite as a family unit in Denmark.

32. The Tribunal gives this consideration some limited weight against the cancellation of the visa.

    Whether there would be consequential cancellations under s.140

33. According to the delegate’s decision record, the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependant visa holders. 

    Any other relevant matters

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

35. The Tribunal has carefully considered and weighed all of the relevant circumstances of the applicant in this case. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.

    DECISION

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

    Nicola Findson
    Member