Lee (Migration)

[2021] AATA 4324

Lee (Migration) [2021] AATA 4324 (1 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Damien Alexander Lee

CASE NUMBER:  2100657

HOME AFFAIRS REFERENCE(S):          BCC2020/1797049

MEMBER:Michael Cooke

DATE:1 September 2021

PLACE OF DECISION:  Sydney

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 07 September 2021 at 1:27pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – genuine intention to perform the occupation – abandonment clause – employment terminated – termination not communicated – new sponsorship approval secured – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 January 2021 made by a delegate of the Minister for Home Affairs 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)(g) on the basis that there was a prescribed ground for cancellation of his 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 (Mr Lee) attended a hearing on 7 September 2021.

4. The applicant was represented in relation to the review by his registered migration agent who attended the 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(1)(g). 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)(g) - prescribed ground

7. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(kb) is relevant.

8. The Department received written notification from the sponsor's representative advising that the applicant ceased employment with the sponsor effective 22 May 2020. The sponsor considered that the applicant abandoned his position. An abandonment clause in the sponsor's agreement was used to terminate the applicant’s position.

9. The applicant claims that he did not cease employment with the sponsor. On contrary, the sponsor failed to provide him with work due to the COVID pandemic affecting the sponsor's business. He did not receive any employment termination notice. He understood that because of the COVID pandemic this was normal situation.

10. The applicant provided the following reason in a submission:

    ·    He claimed that he has been ''speaking to a possible employer" and requests more time to attain a new sponsorship. In January 2021 he started working for an employer who stated they are willing to sponsor the applicant (Annexure 8). Since January 2021, the applicant is working full time for the new employer. (Annexure 9).

11. The Tribunal explored this employment issue in oral evidence. In particular, the Tribunal delved into claims that the applicant made no contact with his sponsoring employer. The applicant informed that following the end of his employment in Canberra he returned to Sydney and the sponsor proceeded to give him a day here or there. Subsequently, he received no call out at all and contacted the employer. He had no success and eventually the sponsor did not return any calls. The applicant said he had never received an email from the sponsor. In any case, he said, most communication in the building industry seemed to be by telephone - in his experience. The first thing he heard about his employment situation with his sponsor was receiving the Departmental NOICC letter. He was shocked and then responded to the Department about his situation.

12. The Tribunal (mindful of normal business industrial relations behaviour when terminating an employee) asked him whether he had received an email or communication from his sponsoring employer concerning his entitlements - such as superannuation. He indicated to the Tribunal that he had received no information or communication - whatsoever. He had proceeded to find a new employer sponsor in view of his situation. He informed the delegate of this in his response.

13. The Tribunal notes that he has been successful in that regard. His proposed new employer (AUSTRALIAN BUILDING INDUSTRY CIVILCONTRACTORS PTY LTD) has secured sponsorship approval (TRN EGOFPF29IP) until 28 November 2022.

14. The Tribunal has considered the evidence before it including that provided by the applicant. The Tribunal finds that the applicant’s explanation for his predicament with his former sponsor is reasonable and acceptable – particularly in the light of the circumstances surrounding the COVID 19 pandemic and its impact on the building industry.

15. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(g) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    Michael Cooke

    
    

    Senior Member