Lee (Migration)

[2024] AATA 1433

Lee (Migration) [2024] AATA 1433 (22 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Eunha

Lee

Mr Jaesun Kim

REPRESENTATIVE:  Mr Woon Hak Seo (MARN: 0211283)

CASE NUMBER:  2113417

HOME AFFAIRS REFERENCE(S):          BCC2021/1099683

MEMBER:Sheridan Aster

DATE:22 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 22 May 2024 at 4:24pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Child Care Centre Manager – substantial compliance with previous visa conditions – ceased employment with sponsor – sponsor’s business licence suspended – unpaid leave – COVID-19 pandemic – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 482.211; Schedule 8, Conditions 8101, 8107, 8207, 8501, 8506

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 September 2021 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 May 2021. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit who are applicants for the visa need only satisfy the secondary criteria.

3. In this case, the primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Chid Care Centre Manager.

4. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.211 of Schedule 2 to the Regulations, which requires that the applicant has substantially complied with the conditions that applied to the last of any substantive visas they held and to any subsequent bridging visa.

5. The applicant appeared before the Tribunal by video on 1 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The applicants were represented in relation to the review.

7. For the following reasons, the Tribunal has decided that the under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Substantial compliance with previous visa conditions

8. Clause 482.211 requires the applicant, if in Australia, to have complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

9. The last substantive visa held by the applicant was a Subclass 457 visa, granted on 9 February 2018. Departmental records report that the visa was subject to conditions 8107 and 8501.

10. Visa conditions are set out in Schedule 8 of the Regulations. Condition 8107 requires that the visa holder must not:

    a.Cease to be employed by the employer in relation to which the visa was granted; or

    b.Work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    c.Engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

11. Visa condition 8501 requires the visa holder to maintain adequate arrangements for health insurance while the holder is in Australia.

12. The applicant was sponsored for the Subclass 457 visa by A Ahmed & S A Hussein, trading as Saiyan Family Day Care Centre. The decision of the delegate outlines that the business licence for Saiyan Family Day Care Centre was cancelled by the Department of Education and Training. As a result, on 24 September 2018, the applicant ceased to be employed by that business.

13. The standard business sponsorship approval that was granted to A Ahmed & S A Hussein was cancelled by the Department on 18 March 2021.

14. The delegate acknowledged that the cancellation of the business licence and standard business sponsorship approval of A Ahmed & S A Hussein was beyond the applicant’s control. Nevertheless, the delegate found that the applicant had ceased working for her nominating employer and failed to apply for a new visa or depart Australia within the required 60-day period. She did not apply for the current visa until 18 May 2021, almost three years after she ceased to be employed at Saiyan Family Day Care Centre. In the circumstances, the delegate considered that the applicant had not complied with visa condition 8107.

15. Departmental records report that the applicant’s Subclass 457 visa was cancelled on 28 June 2021. She has been granted four bridging visas with the following conditions:

    a.19 May 2021 - Bridging visa A, subject to conditions 8107 and 8501.

    b.30 June 2020 – Bridging visa E, subject to conditions 8101, 8506 and 8207.

    c.21 July 2021 – Bridging visa E, subject to conditions 8506 and 8207.

    d.23 February 2023 – Bridging visa E, subject to conditions 8506 and 8207.

16. Visa condition 8101 requires that the via holder must not engage in work in Australia.

17. Visa condition 8207 requires that the via holder must not engage in any training or study in Australia.

18. Visa condition 8506 requires that the via holder must notify Immigration at least two working days in advance of any change of address.

19. There is no evidence before the Tribunal to indicate that the applicant did not comply with visa conditions 8501, 8101, 8506 or 8207.

    Substantial compliance with visa condition 8107?

20. In determining whether an applicant has complied substantially with a condition, decision makers may consider a range of matters according to the evidence in the particular case. This includes subjective matters such as the applicant’s reasons for failing to satisfy the condition.[1]

    [1] See Kim v Witton (1995) 59 FCR 258 at [271], Baidakova v MIMA [1998] FCA 1436, Shrestha v MIMA [2001] FCA 1578, Soegianto v MIMA [2001] FCA 1612; MIMA v Modi (2001) 116 FCR 496 at [18].

21. On 7 March 2024, the Tribunal invited the applicant to provide information to demonstrate that she met the requirements of cl 482.211 of Schedule 2 to the Regulations. The applicant was asked to provide the information by 21 March 2024. The applicant requested an extension to provide the information. An extension was granted until 2 April 2024.

22. On 28 March 2024, the applicant responded to the Tribunal’s invitation. The applicant advised that she was only able to work for Saiyan Family Day Care Service for eight months before the business licence was suspended. In October 2018, the applicant was placed on an extended period of unpaid leave. She advised that she consistently looked for a new sponsor from the time she realised the suspension was serious and long-lasting. This became more difficult when COVID-19 began to spread in March 2020.

23. The applicant found a new sponsor and made an application for a new Subclass 482, sponsored by Nectar Family Day Care Services, on 18 May 2021, just before her Subclass 457 visa was cancelled. Although she was originally granted a bridging visa E with no work rights, she was granted a bridging visa E with work rights on 21 July 2021 and commenced working for her nominating employer.

24. The applicant provided a letter of support from Sudheer Velani, Director of Nectar Child Care Services Pty Ltd, dated 28 March 2024. Mr Velani outlined that the applicant is an integral part of the organisation and her ability to continue with the company would ensure its ongoing success.

25. A contract of employment between Nectar Childcare services and the applicant and payslips issued to the applicant were provided as evidence of the applicant’s ongoing employment.

26. The Tribunal received a letter of support, dated 30 April 2024, from Pastor Byoung Tae Lee from the Baik Yang Presbyterian Church. Pastor Lee attested to the applicant’s positive contribution to the Perth Korean community over the last ten years.

27. At the Tribunal hearing, the applicant confirmed that her last shift at Saiyan Family Day Care Centre was on 28 September 2018, following the cancellation of the licence to process childcare subsidies. The company requested a review of the decision to cancel the licence. The applicant said was told she could use unpaid leave until the licence was restored. No timeframe was provided but the nominator assured her that the company would take action to have the licence restored. The applicant explained that she did not believe her employment had ended.

28. The CEO of Saiyan Family Day Care Centre explained the situation in an email to the Department, sent on 15 October 2018. The applicant provided a copy of the email to the Tribunal following the hearing. The Tribunal notes that the Ayan Ahmed notified the Department that Saiyan Family Day Care Centre was ending the employment contract with Ms Eunha Lee. He expressed an interest to have Ms Lee back if the child care subsidy approval was restored to the company.

29. The applicant also supplied a letter of support from Ayan Ahmed, dated 29 March 2024. The letter acknowledged that the business took the decision to stop Ms Lee’s employment sponsorship in October 2018. The business promised to reinstate her if the cancellation of the licence approval was revoked.

30. The Tribunal appreciates that the employment relationship was not terminated through fault of the applicant and accepts that the applicant took steps to help the company regain the relevant licence. Nevertheless, the regulations provided 60 days to find a new employer. It took three years for the applicant to lodge a new visa application. Even if the applicant originally believed her employment relationship was not terminated, this is a significant period to continue living in Australia on the Subclass 457 visa without a sponsoring employer.

31. The applicant alleged that the COVID-19 pandemic made it impossible for her to find a new sponsor within 60 days. However, as discussed with the applicant at the hearing, Western Australia was not subject to control measures until March 2020, 18 months after the applicant ceased working at Saiyan Family Day Care Centre. While they did not accept new enrolments, childcare centres in Western Australia continued to operate during the pandemic. The applicant then highlighted that she had to think of her children during the pandemic, who were aged 21 and 19 at the time of the hearing. The Tribunal is sympathetic to the stress caused by the pandemic around the world, however, does not accept that this prevented the applicant from finding employment. The Tribunal notes that schools in Western Australia were largely operating with in person attendance throughout the pandemic.

32. The purpose of the Subclass 457 visa was to provide a mechanism to fill temporary skills shortages within the Australian labour market. As discussed with the applicant, if she was unable to find a suitable employer for a three-year period, this indicates that there was no shortage of labour in her nominated occupation.

33. The Tribunal accepts that the applicant is dismayed that the wrongdoing of her former employer has prevented her from being granted another visa and following the pathway to permanent residency in Australia. Nevertheless, when considering the significance of the breach, especially by reference to the purposes for which the visa was granted, the Tribunal finds that the applicant did not comply substantially with visa condition 8107.

34. For these reasons, cl 482.211 is not met. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

35. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Sheridan Aster
    Member