Leach (Migration)

[2021] AATA 1590

Leach (Migration) [2021] AATA 1590 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kara Martha Leach

CASE NUMBER:  2012150

HOME AFFAIRS REFERENCE(S):          BCC2019/5117352

MEMBER:Joanne Bakas

DATE:17 May 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 17 May 2021 at 11:21am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – employment ceased for more than 60 days – new employer’s business nomination application refused then eventually approved – applicant relied on employer and its agent and was unaware of refusal – discretion to cancel visa – breach not deliberate – continuing employment in area of genuine skills shortage – financial and personal hardship if cancellation affirmed – qualification gained in third country not recognised in home country – personal relationship with Australian citizen – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1995 (Cth), Schedule 8, condition 8607(5)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 July 2020 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 that the Minister was satisfied that the applicant did not comply with a condition of their visa; in this instance condition 8607(5) attached to the applicant’s visa. 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 27 April 2021 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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(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?

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 8607(5) attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which she ceases employment must not exceed 60 consecutive days.

8. It is not disputed by the applicant that she ceased employment with Embrace Life Chiropractic Pty Ltd (Embrace Life) located in Queensland on 21 September 2019 and that she did not have an approved nomination to work elsewhere in the next 60 day period.

9. The applicant’s evidence included that she wished to move to a new employer, Vivaci Industries Pty Ltd (Chiropractic Life) located in Northern Territory and had thought that the necessary paperwork and approval had been received from the department. This new employer had informed her that she can commence working as soon as possible and that all the necessary documentation had been organised. However, Chiropractic Life had their business nomination application refused on 24 September 2019.  This nomination was eventually approved on 2 September 2020. The applicant was not aware there was an issue until she received a notice of department’s intention to consider cancellation.

10. 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

11. 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’.

12. At the hearing the applicant’s submissions included:

    a.She was completely unaware that the business nomination for Chiropractic Life, nominating her to work as a chiropractor, had been refused.

    b.She moved from Queensland to Northern Territory at a time when her new employer had informed her that her new employment had been organised.  She asked about documentation and was informed that she does not need to contact anyone in the department.  She trusted that her new employer had undertaken all of the necessary paperwork to transfer her employment from Embrace Life and trusted their duty of care to her.

    c.As soon as she was aware of the cancellation situation, she contacted human resources department at Chiropractic Life and started to sort things out.  She has also now engaged her own migration agent rather than relying on the employer’s agent.

    d.She wished to leave her employment in Queensland due to finding the work environment extremely aggressive and hostile.  She had decided against making a complaint for bullying as she was concerned that she would suffer repercussions.

    e.Even though she is a United States of American’ citizen she is not qualified to work as a chiropractor there as she studied in New Zealand. She has not lived in the USA for some 10 years.  She has no family support in Australia but does have a partner who is in the Australian defence, stationed in Darwin.

    f.Her family lives in the Philippines and her family situation is one that she is not able to rely upon them. She is not in regular contact with her parents and cannot seek support from them.  She has two brothers, one of whom lives in New Mexico, USA and the other in Arizona, USA.  They are both struggling financially.

    g.She has lived in Australia now for about two and a half years.

13. The written submissions and documents from the applicant prior to the hearing included documentation to establish that her current employer has had their nomination application in relation to the applicant, approved on 2 September 2020.

    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

14. The Tribunal is cognisant of the circumstances that the applicant was granted the visa for the purpose of being able to temporarily fill a skill shortage in a particular area and to work in Australia for an approved sponsor in a skilled occupation for which she was specifically nominated and which could not be filled from within the Australian workforce.

15. The applicant stated at the hearing that she left her sponsor because of the nature of the workplace and had thought that she had approval from the department to commence employment in the Northern Territory with Chiropractic Life.  

16. It is not in dispute that the applicant ceased employment with the approved nominator (Embrace Life). The Tribunal notes that a new sponsor nomination (by Vivaci Industries Pty Ltd (Chiropractic Life)) was lodged but refused on 24 September 2019 and subsequently approved on 2 September 2020. However, the applicant’s position includes that she had thought her nomination was being transferred to her current employer.

17. The current employer submitted a letter dated 17 April 2021 stating that the applicant continues to be employed as a chiropractor and that the Northern Territory has difficulty securing the required number of chiropractors.  The applicant is seen as an important resource in the provision of chiropractic services for the current employer.    

18. In addition, the applicant’s submissions at hearing included that her partner is stationed in Darwin and due to the natures of his work, it would be difficult to relocate to another country. Her partner, Corporal Phillip Tume, also submitted a letter dated 27 April 2021 stating that he and Ms Leach are looking at initiating documentation for recognition of a de facto relationship.

19. The Tribunal has considered the applicant’s evidence about her employment with Chiropractic Life in Northern Territory.  The applicant has provided documentary evidence that she has full time employment in her original profession as a chiropractor with that employer and that she is considered a necessary part of their operations.  Moreover, this employer lodged a nomination in relation to Ms Leach as the nominee and this nomination was approved on 2 September 2020.

20. Under these circumstances, the Tribunal considered this employment to be a favourable circumstance in the assessment of whether or not the applicant’s visa should be cancelled.

21. The applicant gave her evidence in an honest and forthright way and the evidence indicates that the applicant has made attempts to regularise her immigration status upon learning that there was an issue and that her new employer’s business nomination, nominating the applicant, was approved. 

22. The Tribunal accepts the applicant’s submissions in regard to this discretionary factor and finds that the circumstances  as detailed above, weigh in favour of not cancelling the visa. 

    The extent of compliance with visa conditions and past and present behaviour of the visa holder towards the department

23. The delegate’s position in regard to this discretionary factor includes that the applicant did not comply with condition 8607(5) as detailed above.  In addition, she worked for an employer that was not the approved business sponsor and without an approved nomination in place.

24. The Tribunal understands from the applicant’s submission that she had trusted her employer (Chiropractic Life) to take care of the necessary nomination matters.  However, the Tribunal finds that the applicant could have undertaken action to be assured of her compliance but did not.

25. There is otherwise no evidence of a lack of co-operation with the department and once the applicant was apprised of the issues, the Tribunal accepts that the applicant acted to correct the matter as best she could.  

26. Nevertheless, on balance however, the Tribunal finds that this factor weighs somewhat in favour of cancelling the visa.

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

27. The Tribunal accepts the applicant’s evidence as detailed above that if her visa is cancelled, she would not be able to work immediately in the USA and that she has no family support there in any event. Further, she would not be able to remain with her current partner.  

28. The Tribunal accepts that the applicant would suffer some financial, psychological and emotional hardship if the visa is cancelled given her circumstances and the Tribunal places some weight in the applicant’s favour on the hardship that may be caused by cancellation of 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.

29. The Tribunal accepts the applicant’s evidence that she left her original employer as she was of the understanding that the new employer had organised a transfer of her visa conditions.  However, as detailed above this had not occurred appropriately and in a timely manner prior to the applicant leaving Embrace Chiropractic Life in Queensland.

30. The Tribunal considers that the circumstances in which the breach arose did not involve deliberate or significant breaches by the applicant, and that she had trusted her new employer had organised the appropriate nomination for her to work in the Northern Territory.  The Tribunal notes that the applicant is still working in the profession that she was first nominated for and that her current employer now has an approved business nomination application in place.

31. These factors weigh in her favour.

    Whether there would be consequential cancellations under s.140

32. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s.140 of the Act.  As such, this is not a relevant consideration to this case.

    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

33. In circumstances where the visa is cancelled, the applicant will no longer have suitable visa status to allow them to remain in Australia. She will thus become an unlawful non-citizen liable for detention under s.189 of the Act and removal under s.198 of the Act.

34. The applicant would also be subject to s.48 of the Act which would limit the potential to lodge further visa applications onshore in Australia.

35. As such, the Tribunal gives this consideration a little weight against cancelling the visa.

    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

36. The Tribunal finds no information before it to indicate that visa cancellation would impact Australia's international obligations or would be in breach of Australia's non-refoulement obligations. 

37. The Tribunal therefore attributes little weight to these considerations in deciding whether to exercise the discretion to cancel the visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

38. As the visa subject to cancellation is not a permanent visa, this is not a relevant consideration to this case

    Any other relevant matters

39. There are no other relevant matters evident or raised by the applicant.

40. In considering the circumstances as a whole, the Tribunal is satisfied, on balance, that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled.

    DECISION

41. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Joanne Bakas
    Member