MacDonald (Migration)

[2022] AATA 3329

MacDonald (Migration) [2022] AATA 3329 (20 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Craig MacDonald

REPRESENTATIVE:  Mr Rick Gunn

CASE NUMBER:  2201286

HOME AFFAIRS REFERENCE(S):          BCC2021/856125

MEMBER:Noelle Hossen

DATE:20 September 2022

PLACE OF DECISION:  Perth

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 20 September 2022 at 4:40pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ceased employment for more than 60 days – discretion to cancel visa – made redundant during COVID pandemic – recent new employment and sponsorship – shared care and financial support for children – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (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 31 January 2022 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the period during which the applicant has ceased employment has exceeded 60 consecutive days. 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 the 20 September 2022 to give evidence and present arguments.

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

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)(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

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 the period during which the applicant has ceased employment not exceed 60 consecutive days.

8. At the time of the Delegate’s Decision the applicant had acknowledged that he had been made redundant by his sponsor as of the 31 March 2021.The Delegate’s Decision was delivered on the 31 January 2022. At that time the applicant had remained in Australia for ten months since ceasing his employment without successfully obtaining new employment with an approved sponsor. The delegate considered that the applicant did have time for him to pursue his options to obtain a new approved nomination, to be granted a new visa or to depart Australia.

9. The applicant did provide reasons as to why the visa should not be cancelled in response to the Notice of Intention to Cancel to the Department:

   The applicant said that he had 3 sons who lived in Melbourne and that the children spend 50 % of their time with him and that he had financial responsibility for his sons.

   The cancellation of his Visa would affect his ability to apply for another type of Visa in Australia.

   At that time, travelling was impossible due to the impact of the pandemic and that his sons lived in Melbourne.

   He sought that the Decision be delayed as he was actively pursuing job opportunities and working with employment agencies but was still having difficulty securing employment.

10. The Tribunal is satisfied on the evidence, that at the time of the Delegate’s Decision the period during which the applicant had ceased employment had exceeded 60 consecutive days and therefore, there is ground for cancellation under Section 116(1)(b) of the Act as the applicant had not complied with condition 8607 of his visa.

11. 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

12. 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.

    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:

13. The applicant came to Australia in 2007 as he was in a marriage like relationship with his partner who was a citizen of New Zealand. His first child was born in 2009 and the twins were born in 2011. He separated from the mother of his children in 2014 but was able to renew his subclass 461 Visa as he was a dependent on that visa.

14. He explained that the mother of the children left Australia for New Zealand, taking the 3 children with her, without his permission in 2018 causing him a lot of distress and stress.

15. He was able to retrieve the children under the Hague Convention. He travelled from Australia to New Zealand to collect the children and it was at the stage of returning to Australia that he was made aware at the airport that his bridging visa had expired.

16. After that time, he was successful in obtaining a sponsorship from his employer BP as a Corporate General Manager. The visa was granted on the 4 September 2018 and expired on the 4 September 2022.

17. He was made redundant by his sponsor on the 31 March 2021.The purpose of his travel to Australia is that it is where his children live, and he shares the care of the children with their mother. He has taken his parenting responsibilities seriously. He has paid child support to his former defacto partner. If he had to leave Australia and his Visa is cancelled it would seriously affect his ability to care for his children. The Tribunal places some weight on those facts in favour of the applicant’s case and not cancelling the Visa.

    The extent of compliance with visa conditions:

18. Save and except for the non - compliance which arose as he was made redundant during the pandemic the applicant had complied with his Visa conditions. The applicant does have a pending nomination and is waiting for approval. The Tribunal does place some weight in favour of the applicant’s case as he did try to comply and has finally secured a sponsor.

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

19. The applicant would face significant hardship if his visa is cancelled as he is sharing the care of his children who are aged 13 and twins aged 11 years, with his former partner. The applicant explained that he would face significant psychological hardship if he was separated from his children. The applicant explained to the Tribunal the extent of his love for his children and that he would be devastated if he could not continue to spend time with them. It would obviously also affect the children who spend 50 % of their time with their father.

20. The Tribunal accepts the evidence of the applicant that it would cause hardship to his family. The children were born in Australia. His former partner is a New Zealand Citizen, and they have been living in Australia since 2007.

21. The Tribunal accepts his evidence that he is providing substantial child support for the financial support of his children. The Tribunal places significant weight on those facts in favour of the applicant’s case.

    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. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control:

22. The circumstances were caused by the fact that the applicant was made redundant by his employer. The applicant provided evidence to the Tribunal that he has been able to secure employment and sponsorship with” Invest Australia” in the same nominated occupation .His nomination application was approved on the 9 September 2022.The Tribunal places some weight on those facts in favour of the applicant’s case.

    past and present behaviour of the visa holder towards the department:

23. There was no evidence that the applicant has been uncooperative with the Department. The Tribunal places some weight in favour of the applicant’s case against cancelling the visa.

    whether there would be consequential cancellations under s 140:

24. There is no evidence that there would be any consequential cancellations under Section 140.

    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:

25. There may be some legal consequences, and this may result in the applicant being an unlawful citizen. The Tribunal places some weight on those factors 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 (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].):

26. The applicant claimed that he was sharing the care of the children and therefore he will be separated from his children. It is in the best interests of these children to not be separated from their father who gave evidence of his good attitude towards his parental responsibilities. The Tribunal places a lot of weight on those factors against cancelling the Visa.

27. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    decision

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

    Noelle Hossen
    Member