Mandurino (Migration)

[2021] AATA 1205

Mandurino (Migration) [2021] AATA 1205 (12 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Giovanna Mandurino

CASE NUMBER:  2013009

HOME AFFAIRS REFERENCE(S):          BCC2020/733339

MEMBER:Michael Cooke

DATE:12 March 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 482 - Temporary Skill Shortage visa.

Statement made on 12 March 2021 at 3:54pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 482 - Temporary Skill Shortage – employment ceased over 60 days – COVID19 pandemic downtown – financial hardship – applicant secured a new sponsor – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 8, Condition 8607

CASES

Wan v MIMA (2001) 107 FCR 133    

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 August 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 breached subclause (5) of condition 8607. 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 21 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

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(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 if the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

8. On 28 January 2020 the applicant’s sponsor advised the Department that the visa holder ceased employment with them on 23 January 2020. However, in the NOICC response the applicant states that she ceased employment with the sponsor on 02 February 2020.

9. The applicant provided the following reasons for cessation of her employment:

   ·The applicant stated that she ceased employment on 02 February 2020 with the nominated sponsor ‘BREAKFAST POINT HAIR MANAGEMENT PTY LTD’.

   ·The applicant was aware of her visa condition 8607 that requires she find another approved sponsor within 60 days.

   ·She indicated in oral evidence that her former employer had re-positioned her in a salon with older and fewer customers which impacted both on her morale, and productivity as well as her salary expectation.

   ·The applicant has 35 years of experience in the profession.

10. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa is BREAKFAST POINT HAIR MANAGEMENT PTY LTD (the sponsor) whose nomination was approved on 20 November 2019 under the occupation Hairdresser (ANZSCO 391111).

11. The applicant was granted subject to condition 8607(5) which states that if the visa holder ceases employment, the period during which they cease employment must not exceed 60 consecutive days.

12. On 28 January 2020 the applicant’s sponsor advised the Department that the applicant had ceased employment with them on 23 January 2020. However, in the NOICC response the applicant states that she ceased employment with the sponsor on 02 February 2020. While the Tribunal acknowledges that the applicant may have ceased employment some 10 days after the sponsor claims she ceased employment, the claimed cessation date is not material to the grounds for cancellation as it has been more than 60 days since her employment ceased in either case. The applicant has indicated that she has been in negotiations with potential sponsors, has received text messages of interest from employers, and has attended interviews. Furthermore, there is recent evidence before the Tribunal to indicate that the applicant has secured a new sponsor who has made an new application at the Department on her behalf..

13. However, based on the information before the Tribunal the applicant plainly has not complied with visa condition 8607(5) by having ceased employment with her last approved sponsor for a period exceeding 60 days.

14. Therefore, grounds exist for cancellation under s116(1)(b) of the Act.

15. 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

16. 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’.

    Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:

    ·the purpose of the applicant’s travel and stay in Australia and whether she has a compelling need to travel to or remain in Australia

17. The applicant was granted the Temporary Work (Skilled) (subclass 482) visa on 28 November 2019 for the purpose of undertaking employment in the nominated occupation, Hairdresser (ANZSO 391111) with the approved sponsor, BREAKFAST POINT HAIR MANAGEMENT PTY LTD.

18. The applicant has provided the following response to the delegate and Tribunal:

    ·She is a qualified hairdresser with ‘lengthy experience (some 33 years working as a hairdresser in Italy and other countries) and who has ‘never struggled to find employment.

    ·She was terminated in early February due to a worldwide pandemic outside of her control as she was unable to undertake functions of a hairdresser while maintaining governmental guidelines.

    ·She also states that businesses within the nominated occupations industry have withheld their recruitment activities due to the pandemic.

    ·She states that she ‘maintains confidence in obtaining employment and securing a new sponsor as a result some of the many applications she has sent in the last few weeks’.

    ·That remaining in Australia is vital to the visa holder due to the severity of the COVID-19 situation in Italy.

    ·She is likely to face unemployment when returning back to Italy due their own economic situation.

    ·She has researched jobs throughout all of the state as she is keen to secure a new sponsor and ‘preserving my visa until the natural expiry date at the end of next year’.

    ·She has been in Australia for seven years and been respectful of Australian rules and customs.

    ·She has ‘no avenues to permanent residency in Australia because of my age and for this reason I want to make the most of my time here’.

    • That with the current COVID-19 situation she has lost a majority of her savings.

19. The Tribunal gives this consideration some weight against cancellation.

    ·the extent of the applicant’s compliance with visa conditions

20. The applicant has failed to comply with her previous visa condition 8607(5). There is no evidence that she has breached any conditions attached to her present BVE.

21. The Tribunal gives this consideration minimal weight for cancellation.

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

22. The applicant has claimed to have suffered significant hardship due to her loss of full-time employment (see earlier evidence paragraph 18)).

23. The Tribunal gives this consideration significant weight against cancellation.

    ·The 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

24. The Tribunal is satisfied that the circumstances in which ground of cancellation arose were ‘beyond the applicant’s control’ and a product of the impact of the COVID pandemic on the Australian economy.

25. The Tribunal gives this consideration significant weight against cancellation.

    ·The past and present behaviour of the applicant towards the Department

26. The Tribunal is not aware of any adverse behaviour towards the Department on the part of the applicant.

27. The Tribunal gives this consideration some positive weight against cancellation.

    ·whether there would be consequential cancellations under s.140

28. Not applicable.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the applicant 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

29. As a result of cancellation, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if the visa holder does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which would cause her to have limited options if applying for further visas while in Australia.

30. However, a cancellation under these grounds does not cause the applicant to be affected by the Public Interest Criterion 4013 risk factor. Therefore, she will not face an exclusion period as a result of any cancellation.

31. The Tribunal gives this consideration some 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 (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].)

32. The Tribunal finds that the circumstances of this case would not engage Australia’s international obligations and thus the cancellation of the visa would not lead to a breach of Australia’s international obligations.

33. Therefore, the Tribunal gives this consideration neutral weight for or against a decision to affirm or set aside the cancellation.

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

34. Not applicable

    ·any other relevant matters

35. The Tribunal has examined the applicant’s situation particularly in view of the hardship which has occurred to her (as a result of COVID 19). The Tribunal acknowledges her travails in her pursuit of a new job as a middle-aged single woman caught in the economic downside of the pandemic. Despite this predicament she has persevered resolutely in trying to find a new sponsor. Her efforts have paid off as she has now secured a new sponsor who has submitted the appropriate sponsorship paperwork to the Department.

36. The Tribunal gives this consideration maximum weight against cancellation.

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

    DECISION

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

    Michael Cooke
    Senior Member