Magsalay (Migration)

[2021] AATA 5220

Magsalay (Migration) [2021] AATA 5220 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alejandro Aquino Magsalay

CASE NUMBER:  2016884

HOME AFFAIRS REFERENCE(S):          BCC2020/887880

MEMBER:Amanda Upton

DATE:19 October 2021

PLACE OF DECISION:  Melbourne

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 19 October 2021 at 3:30pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ground for cancellation – ceased employment with sponsor – consideration of discretion – secured a fulltime position with an approved standard business sponsor – significant breach of the visa condition – unfair dismissal – employment conditions throughout 2020 – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8607

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 November 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 the applicant had ceased working for his sponsoring employer on 20 November 2019 and had not returned to work for that employer for more than 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 18 March 2021 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

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.

7. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8607, to which his visa was subject, prescribes in 8607(5) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

8. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

9. 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. At 8607(5) this condition requires that the visa holder must not cease employment for a period exceeding 60 consecutive days.

10. The applicant was granted his subclass 482 visa on 20 May 2019 and is due to expire on 20 May 2023.

11. The standard business sponsor who nominated the applicant in the most recently approved nomination was Euro Image Smash Repairs Smart Pty Ltd. The applicant ceased employment with them on 20 November 2019. The applicant confirmed to the Tribunal that he accepted that the grounds for cancellation did exist as he had not been employed for a period of time that exceeded 60 days.

12. There is nothing in the evidence that the applicant gave to the Tribunal that is inconsistent with the existence of grounds for cancellation.

13. The Tribunal finds that the applicant ceased the relevant employment for a period exceeding 60 consecutive days and had breached condition 8607 that attached to his visa.

14. 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

15. 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’.

16. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.  Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant. 

17. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    Purpose of the applicant’s travel and stay in Australia

18. The applicant came to Australia for the opportunity of working. The applicant was granted his Temporary Work (Skilled)(subclass 482) visa on 20 May 2019 for the purpose of undertaking employment in the nomination occupation Panel Beater, with the approved sponsor.

19. The applicant left his employment on 20 November 2019 due to what he considered to be an unfair dismissal.

20. The applicant has now secured a fulltime position with Melbourne Collision Repair centre. The employer is an approved standard business sponsor as of 30 October 2020 when their sponsorship application was approved.

21. The Tribunal concludes that the applicant’s purpose for travel and stay in Australia remains consistent with the grant of his subclass 482 visa.

22. The Tribunal gives weight to this factor against cancelling the visa and specifically places significant weight on the fact that the applicant now has a nominated position consistent with his previous employment.

    Extent of the applicant’s compliance with visa conditions

23. There are no known instances of non-compliance with visa conditions (including the applicant’s Subclass 482 and bridging visas), apart from the applicant’s non-compliance with condition 8607(5), attached to his visa.

24. The Tribunal notes that the applicant was in breach of his visa condition for the period from 20 November 2019 to when he commenced employment again on 10 March 2021 when he was offered a full time position with his current employer a significant period of time. The Tribunal considers this to be a significant breach of the visa condition.

25. The Tribunal give some weight to this consideration in favour of cancellation of the visa.

    Degree of hardship that may be caused

26. The applicant supports his wife and two older children who live in the Philippines. One child is 18, studying civil engineering and the other is 27. His wife runs a small business in the Philippines.

27. The applicant stated that he is in effect the sole financial support for his family.

28. The applicant did not indicate that he would suffer any emotional or psychological impact if the visa was to be cancelled although he did say that he would have difficulty finding a job if he had to return to the Philippines after being in Australia for 2 years.

29. The Tribunal accepts that the applicant will suffer some financial and emotional hardship and consequently his family in the Philippines to some extent, however, considers that these are natural consequences of a visa cancellation. The Tribunal places little weight on the considerations raised by the applicant in this regard.

    Circumstances in which the ground of cancellation arose

30. The applicant ceased working for his employer as a result of what he considered to be an unfair dismissal as he was of the view that the company could not afford to keep him employed. Two other people were let go at the same time as the applicant.

31. The applicant stated that after he stopped working he found it difficult to obtain further employment due to it being the Christmas period and then the impact that COVID had on employment particularly in Australia from March 2020.

32. The applicant searched for work in the short period between Christmas and the impact of COVID and found employment in January 2020 with a company who said that they would nominate a position for him but they did not in fact do this. He did two months’ worth of work for this company but they were not a standard business sponsor so they were unable to sponsor him. The consequence of this was that he recommenced looking for work in March when the pandemic started to have impact in Australia.

33. The Tribunal accepts that the conditions throughout 2020 made it difficult to obtain employment and potentially particularly so for temporary visa holders who needed to source not just employment but employment with a standard business sponsor.

34. The Tribunal balances this difficulty against the time period that the applicant has been in breach of his visas condition and the fact that he has now obtained a nominated position. The Tribunal does not place weight on this factor in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

35. There is no evidence to suggest the visa holder has been uncooperative with the Department or with departmental staff.

36. The Tribunal gives this consideration a little weight against cancelling the visa holder’s visa.

    Whether there would be consequential cancellations under s.140

37. There are no other visa holders associated with this visa application, therefore the Tribunal is satisfied that there would not be any consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled.

38. The Tribunal gives no weight to this consideration, either in favour of or against cancellation of the visa.

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

39. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case, he can depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

40. The Tribunal notes that it may be difficult for the applicant to leave the country in the current situation however also notes that the Australian Government has put in place several contingency options for visa holders who find themselves in Australia with limited options for returning home.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

41. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations.  These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR).

42. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.  The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

43. Accordingly, the Tribunal does not give this consideration any weight to these considerations, either in favour of or against cancellation of the visa.

    If the visa is a permanent one, whether the visa holder has strong family, business or other ties in Australia

44. As the applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration, either in favour of or against cancellation of the visa.

    Any other relevant matters

45. There are no other matters before me to consider.

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

    DECISION

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

    Amanda Upton
    Member