Mann (Migration)

[2021] AATA 1331

Mann (Migration) [2021] AATA 1331 (4 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joseph Mann

CASE NUMBER:  2010526

HOME AFFAIRS REFERENCE(S):          BCC2019/4096810

MEMBER:Amanda Mendes Da Costa

DATE:4 March 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 4 March 2021 at 1.29pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– ceased employment for a period exceeding 60 consecutive days –approved nomination – breached condition 8607 – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2, cl 482.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 June 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 he had ceased employment with his sponsor Edge Contracting Pty Ltd and the period during which he had ceased employment had exceeded 60 consecutive days. The delegate was not satisfied that the grounds for cancelling the visa outweighed the reasons for cancellation. 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 22 January 2021 to give evidence and present arguments.

4. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing, that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing and the applicant was offered the opportunity to provide the Tribunal with further documentation and submissions following the hearing.

5. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing.

7. 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

8. 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?

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 subclause (5) of Condition 8607 attached to the applicant’s visa. This condition requires that if the visa is, or the last substantive visa held by the applicant was a Subclass 482-Temporary Skill Shortage visa that was granted on the basis that the holder met the requirements of subclause 482.212 and if the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

10. The applicant was granted a Subclass 482-Temporary Skill Shortage visa on 27 November 2018 for a period of four years until 27 November 2022.

11. The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is Edge Contracting Pty Ltd (the sponsor) whose nomination was approved on 23 November 2018.  The sponsor advised the Department that the applicant ceased employment with the company, effective 19 July 2019.

12. On 4 June 2020 the Department sent the applicant a Notice of Intention to Consider cancellation (NOICC) of the applicant’s visa on the basis that it had been informed that his employment with the sponsor ceased on 19 July 2019 and this indicated that he had not complied with subclause (5) of Condition 8107 to his visa.  The applicant did not provide a response to the NOICC.

13. 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 8107(5) attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

    Applicant’s evidence

14. The applicant is 41 years of age and is a national of Papua New Guinea.  He is married and has two children aged 12 and 8 years.  His wife is employed on a full-time basis by a mining company as a truck driver.

15. On 27 November 2018 he was granted a subclass 482 visa as a Diesel Motor Mechanic, sponsored by Edge Contracting Pty Ltd trading as Blue Tongue.  This is a labour hire company and holds a labour agreement with the Department.

16. The applicant arrived in Australia on 13 January 2019.  The sponsor arranged for the  applicant to take up a position with Westrac, a company located in Kalgoorlie, Western Australia.  In February 2019 the applicant suffered an injury at work, resulting in the amputation of the tip of his middle finger.  The applicant travelled to Perth for surgery and was unable to return to work for approximately four months whilst on ‘medical’ leave.

17. In July 2019 Westrac reassigned the applicant to work at its business premises in South Guildford, as he was instructed by his doctor to only work on ‘light duties’.

18. On 17 July 2019 Blue Tongue terminated the applicant’s employment on the basis that he had not performed his work to his employer’s expectations.  The applicant was not given any other reasons for the termination and had not previously been advised by either Westrac or his employer about any perceived problems with his work performance.

19. On 19 July 2019 Blue Tongue advised the Department that the applicant’s employment had ceased.

20. The applicant remained in Australia, living on his own savings in order to receive medical attention.  In August 2019 the applicant’s injury had healed sufficiently and he was advised by his doctor that he was ‘cleared’ to return to work.  He also believed that he had 90, rather than 60 days to find a new employer.

21. On 12 August 2019 the applicant found a new job (through his own endeavours) with Force Equipment, a subsidiary of Emeco.  He approached Blue Tongue, as his sponsor, to sign a new contract through them with Force Equipment.

22. On 13 October 2019 the applicant commenced work with Force Equipment (through Blue Tongue).

23. The applicant conceded that a period of 86 days elapsed between 19 July 2020 (when Blue Tongue notified the Department that his employment with them had ceased) and 13 October 2019 (when he recommenced his employment with Blue Tongue).  However, at the time he believed that condition 8607(5) attached to his visa permitted him 90 days in which to recommence employment with his sponsor.

24. Blue Tongue failed to notify the Department that the applicant had recommenced employment with it.

25. On 4 June 2020 the applicant received the NOICC from the Department.  The applicant emailed this document to the Human Relations department of Blue Tongue.  He believed that his employer would advise the Department that he had recommenced his employment.  However, this did not occur.

26. The NOICC gave the applicant a timeframe of five working days in which to respond to Department.  Unfortunately, the sponsor did not respond to the NOICC and on 15 June 2020 the Department made the decision to cancel his visa.

27. Immediately after the applicant received the notice of cancellation of his visa, he notified his manager and ceased work.

28. Following the decision, Blue Tongue notified the Department that the applicant remained employed by them but was advised that the visa cancellation had to be appealed.

29. On 23 June 2020 the applicant lodged his application for review with this Tribunal.

30. On 26 June 2020 the applicant lodged an application for a Bridging visa E, which was granted on 2 July 2020.  The Bridging visa gave the applicant the right to work in Australia.

31. After making enquiries via the Seek employment website, the applicant obtained a position with Premium Mechanical Group.  As this employer was not in a position to sponsor the applicant and he was only employed on a casual basis, the applicant continued searching for work.

32. On 17 December 2020 the applicant commenced full time employment as a Diesel Motor Mechanic with OEMX Diesel Pty Ltd.  This company is currently in the process of preparing a nomination application to nominate the applicant for a subclass 482 visa.  The Tribunal notes that OEMX Diesel Pty Ltd is a standard business sponsor.

33. If the applicant’s visa is cancelled, he will be required to leave his employment and return to Papua New Guinea where he will live with his wife and children.  Although the applicant’s wife is employed, the family have relied on the applicant’s salary whilst he has been working in Australia and he will need to find employment if he returns to Papua New Guinea.  The applicant explained that given wages in Papua New Guinea were substantially less than those in Australia, he would be required to obtain employment to enable his family to maintain their standard of living and for him and his wife to provide their children with a suitable education.

    Letter – Oemex Diesel Pty Ltd

34. The applicant provided the Tribunal with a letter of support (dated 19 January 2021) by Rejane Sant, the Human Resources Officer, Oemex Diesel Pty Ltd.  In this letter Ms Sant describes the company as a family owned business which provides mining and construction industries with heavy equipment and machinery repair services.  Ms Sant notes that the mining sector is experiencing a skills shortage and the company has found it difficult to source qualified and experienced heavy diesel mechanics locally and have been forced to look overseas for staff.

35. The company’s services are in high demand on mine sites and projects and it requires skilled staff in order to be able to properly and efficiently deliver its services.  Oemex’s client include large mining companies.

36. Ms Sant advises that the company which currently employs the applicant, is in the process of preparing a nomination application for the applicant in the position of Diesel Motor Mechanic (ANZSCO 321212).

    Further documentation

37. Following the hearing, the applicant provided the Tribunal with a nomination approval (for the applicant) dated 16 February 2021 for the occupation of Diesel Motor Mechanic (ANZSCO 321212).  The Tribunal notes that the nomination is for the Temporary Skill Shortage (Subclass 482) visa.

    Findings regarding cancellation

38. The Tribunal is satisfied that the applicant was employed by the sponsor during the period January to 19 July 2019 as a Diesel Motor Mechanic.  The Tribunal accepts the applicant’s evidence that he ceased this employment on 17 July 2019 when it was terminated by the sponsor.  The applicant was subsequently reemployed by the sponsor on 13 October 2019 after the applicant has obtained a position with Force Equipment.  The sponsor terminated the applicant’s employment again following the Department’s decision to cancel his visa on 15 June 2020.  Since the period in which he was not employed with the sponsor  or any other standard business sponsor exceeded 60 consecutive days, the Tribunal is satisfied that the applicant has not complied with subclause (5) to Condition 8607 attached to his visa.

39. 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

40. 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’.

    Purpose of the applicant’s travel and stay in Australia

41. The applicant is a national of Papua New Guinea.  He initially arrived in Australia in January 2019 to work as a Diesel Motor Mechanic after being granted a Subclass 482-Temporary Skill Shortage visa on 27 November 2018 for the purpose working in Australia for his sponsor Edge Contracting Pty Ltd.  This employment initially ceased in July 2019 and recommenced in October 2019 when the sponsor reemployed him in the position of Diesel Motor Mechanic.  The applicant’s employment with the sponsor ceased again in June 2020 when the applicant’s visa was cancelled. 

42. The applicant has subsequently gained employment with Oemex Diesel Pty Ltd, a standard business sponsor, which obtained a nomination approval for the applicant in February 2021, for the occupation of Diesel Motor Mechanic.

43. The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations  The Subclass 482 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal finds that although the applicant’s employment with Edge Contracting Pty Ltd has ceased, this purpose continues to exist as the applicant has commenced employment with another sponsor (Oemex Diesel Pty Ltd) which has an approved nomination for the applicant. 

44. The Tribunal gives significant weight to this consideration against cancellation of the visa.

    Extent of the applicant’s compliance with visa conditions

45. 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.

46. The Tribunal give some weight to this consideration against cancellation of the visa.

    Degree of hardship that may be caused

47. The Tribunal accepts that if the applicant’s visa is cancelled and he returns to Papua New Guinea he will be unemployed and required to seek employment to support his family.  Although the applicant’s wife is employed, the Tribunal accepts that the applicant’s family would suffer a financial impact without his salary to assist in the cost of accommodation, education of his children and general living expenses.

48. The Tribunal gives some weight to this consideration against cancellation of the visa.

    Circumstances in which the ground of cancellation arose

49. The Tribunal accepts that prior to the cancellation of the applicant’s visa, he was employed as a Diesel Motor Mechanic by his sponsor Edge Contracting Pty Ltd, which was a standard business sponsor with an approved nomination for the applicant and this employment was terminated by the sponsor.

50. Although the sponsor initially terminated the applicant’s employment on the grounds that it was not satisfied with his work performance, the Tribunal accepts the applicant’s evidence that prior to termination he had not received any indication from the sponsor that it was dissatisfied with him as an employee and did not give him any warning that it was proposing to terminate his employment.

51. The Tribunal further accepts that although the sponsor advised the Department that the applicant had ceased working for it in July 2019, it did not respond to the NOICC until after the applicant’s visa had been cancelled on 4 June 2020 and did not advise the Department that he had recommenced his employment with the sponsor in October 2019 until after the decision to cancel his visa had been made. 

52. The Tribunal gives some weight to this consideration, in favour of cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

53. The Tribunal accepts that the applicant’s behaviour towards the Department and its staff has been cooperative and that his failure to respond to the NOICC was due to his mistaken belief that his employer would undertake this task on his behalf.

54. The Tribunal gives some weight to this consideration against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

55. Although the applicant is married and has two dependent children, they are not visa holders.  Accordingly, the Tribunal is not satisfied that there would be any consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled.

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

    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

57. 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).

58. 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.

59. 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

60. 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

61. The Tribunal accepts that the applicant has gained employment with another sponsor (Oemex Diesel Pty Ltd) which is a standard business sponsor and has obtained approval of a nomination for the applicant for the occupation of Diesel Motor Mechanic (ANZSCO 321212).

62. The Tribunal gives significant weight to this consideration against cancellation of the visa.

63. Considering the circumstances as a whole (and particularly the applicant’s current employment with Oemex Diesel Pty Ltd and the nomination approval for the applicant), the Tribunal concludes that the visa should not be cancelled

    DECISION

64. 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 Mendes Da Costa
    Member