Marais (Migration)

[2021] AATA 4330

Marais (Migration) [2021] AATA 4330 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Malcolm Grant Marais
Ms Bonita Marais
Miss Demi Marais

CASE NUMBER:  2103928

HOME AFFAIRS REFERENCE(S):          BCC2020/2144138

MEMBER:Antonio Dronjic

DATE:7 September 2021

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 07 September 2021 at 4:16pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – stood down – resigned to access outstanding payments from employer – consideration of discretion – purpose of visa – metal fabricator – Vocational Educator – time to secure new nomination – circumstances giving rise to breach – COVID-19 pandemic – beyond the applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140

Migration Regulations 1994 (Cth), r 2.12; Schedule 8, Condition 8107

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 March 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) 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)(b) on the basis that the applicant breached condition 8107(3)(b) as the period during which the applicant ceased employment 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The decision record of 24 March 2021 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 27 March 2018, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid for the period of four years.

   ·The standard business sponsor who most recently nominated the applicant to work as a metal fabricator was CPC Engineering Pty Ltd (the sponsor).

   ·On 12 August 2020, the applicant ceased his employment with the sponsoring business.

   ·A notice of intention to consider cancellation (NOICC) was issued on 4 February 2021.

   ·On 18 and 26 February 2021, the applicant responded to the NOICC.

   ·On 24 March 2021, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 26 March 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record and documentary evidence in support of the review application. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.

6. On 6 July 2021, the applicant submitted additional documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.

7. On 13 July 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a video hearing scheduled for 2 September 2021.

8. On 23 July 2021, the applicant submitted a copy of a letter from Mr Rick Wilson MP for O’Connor dated 13 July 2021.

9. On 24 and 25 August 2021, the applicant submitted additional documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment C.

10. On 26 August 2021, the applicant submitted additional documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment D.

11. On 1 and 2 September 2021, the applicant submitted additional documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment E.

12. The applicant appeared before the Tribunal on 2 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Bonita Marais, the applicant’s wife. The applicants were represented in relation to the review by their registered migration agent.

13. 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 the conditions of his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. The Tribunal explained that the applicant’s wife’s and daughter’s visas were automatically cancelled by operation of s.140(1) of the Act, which made the cancellation of those other visas self-executing on the cancellation of his visa.

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

15. The applicant is 58 years of age, and a married national of South Africa. His wife and daughter are currently in Australia. His two adult sons and two siblings are living in South Africa. Ms Marais’s siblings are also living in South Africa and neither she nor the applicant has any relatives in Australia.

16. The applicant and his wife own a family home in Pretoria that is currently rented. Both the applicant and his wife completed their education in South Africa. Mr Marais gave evidence that he has more than 20 years of relevant work experience. Ms Marais is a primary school teacher and she has more than 30 years of relevant work experience gained both in South Africa and Australia.

17. The applicant was granted a Subclass 457 visa on 27 March 2018, whilst in South Africa, based on the sponsorship and nomination made by an Australian company, Specialised Engineering Services Pty Ltd located in WA. The applicant submitted a copy of the visa grant letter and confirmed in his evidence that he read and understood the conditions that were imposed on his visa.

18. Mr Marais confirmed in his evidence that he submitted to this Tribunal his statutory declaration dated 24 August 2021 and that everything stated in that declaration is true and correct. He further confirmed that he submitted to the Tribunal two letters dated 17 February 2021 that he provided in response to the Department’s NOICC, and that everything written in those letters is true and correct.

19. The applicant gave evidence that he commenced employment at Specialised Engineering Services Pty Ltd on 1 June 2018 and continued to be employed there in his nominated occupation of metal fabricator until 17 April 2019. After he lost his job at Specialised Engineering Services Pty Ltd, he managed to secure new employment. On 20 July 2019 he commenced employment at CPC Engineering Pty Ltd. This is the business that most recently nominated the applicant for a Subclass 457 visa. He was nominated to work as a metal fabricator.

20. The applicant gave evidence that on 12 August 2020, he ceased his employment at CPC Engineering Pty Ltd. He stated that he was stood down on 25 March 2020 as the company was unable to secure enough work for its employees and that he then later resigned so that he could access outstanding payments from his employer.

21. On 23 October 2020, he commenced employment at Industry Training & Workplace Services Pty Ltd (ITWS). On 14 December 2020, this business nominated the applicant to work as a metal fabricator. That application was refused by the Department on 6 January 2021 as the delegate found that the position associated with the nomination is not a genuine position and that tasks and duties are more closely related to the duties performed by fabrication trainer/teacher. A copy of the Department’s nomination refusal letter dated 6 January 2021 was provided to the Tribunal by the applicant.

22. The applicant gave evidence that the Department’s decision of 6 January 2021 was not appealed to the AAT because of the limited knowledge and experience of the migration agent retained by ITWS.

23. The Tribunal noted that in his written submissions and his statutory declaration, the applicant stated that he is suffering from back pain and is no longer able to work as a metal fabricator. The Tribunal further noted that the applicant is only asking the Tribunal to permit him to apply for an appropriate visa that will allow him to continue working and living in Australia.

24. The Tribunal explained to the applicant that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which do not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

25. Mr Marais stated that he is asking the Tribunal to reinstate his Subclass 457 visa so he can apply for an appropriate visa onshore. He conceded in his evidence that, as at the time of the hearing, he is not sponsored or nominated by an Australian business.

26. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached condition 8107 that was imposed on his Subclass 457 visa as the period during which the applicant ceased employment exceeded 60 consecutive days and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

27. The Tribunal explained to the applicant that there are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal explained the Department’s policy guidelines and indicated that it will have regard to government policy and matters raised by the applicant as to why his visa should not be cancelled.

28. The Tribunal indicated that it would take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application.

29. The Tribunal noted that in his written submissions, the applicant inter alia claimed that an occupation of metal fabricator is in high demand in WA. The Tribunal observed that he gave evidence that, because of his back injury, he is no longer able to work in this occupation. It was further submitted that the applicant’s current occupation of Vocational Educator is also on the skills shortage list.

30. The Tribunal further noted that the applicant claimed that his visa should not remain cancelled because both he and his wife are employed in Australia.

31. The Tribunal noted that both the applicant and his wife claimed that the visa should not be cancelled because they must provide financial support to their daughter and relatives in South Africa. They also claimed that the COVID-19 pandemic is worsening in South Africa and because of this pandemic there is massive job loss in South Africa. They stated that they would not be able to find employment if required to return to South Africa. When the Tribunal enquired if either the applicant or his wife had recently attempted to find a job in South Africa, they stated that they had not.

32. The Tribunal acknowledged that the applicant and his wife submitted several statutory declarations from their friends and work colleagues in support of the review application as evidence that both the applicant and his family have established ties with the Australian community. The Tribunal also noted the letters provided by Mr Rick Wilson MP in February and July 2021.

33. The Tribunal asked and the applicant stated that there is nothing else that he wants to bring to the Tribunal’s attention and that he already pleaded his case in his written submissions and other documents submitted with the review application.

34. Ms Marais confirmed in her evidence that she submitted her statutory declaration dated 24 August 2021 and that everything stated in that declaration is true and correct. She gave evidence that both she and her husband would prefer to stay in Australia where both are working and are able to financially support their family.

35. The Tribunal noted that she and her husband came to Australia on a temporary visa which should not create expectation of remaining in Australia permanently. The Tribunal observed that the purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis.

36. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. 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 video conferencing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

37. 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

38. 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?

39. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 is attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 60 consecutive days.

40. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 12 August 2020. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

41. 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 power to cancel the visa should be exercised.

    Consideration of discretion

42. There are no matters specified in the Act or the 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’.

43. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] 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.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]

44. 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 and his wife.

    The purpose of the visa holder’s travel to and stay in Australia

45. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

46. The applicant gave evidence he was stood down from his employment at CPC Engineering on 25 March 2020 as the company was unable to secure enough work for its employees. On 12 August 2020, the applicant had to resign to access outstanding payments from his employer. This was confirmed in the letter from CPC Engineering dated 25 March 2020.

47. On 23 October 2020, the applicant managed to secure new employment at ITWS where he remains employed as a metal fabrication trainer/teacher as at the time of this decision. His new employer attempted to nominate Mr Marais for the position of a metal fabricator. According to the Department’s decision record of 6 January 2021, this nomination application was refused as the delegate was not satisfied that the position associated with the nominated occupation was genuine. The delegate concluded that Mr Marais’s duties are more closely related to duties required to be performed by a trainer/teacher. It was further submitted that the ITWS nomination application was unsuccessful because an inexperienced migration agent nominated the wrong occupation.

48. According to the letter provided by the applicant’s current employer, ITWS is a nationally recognised registered training organisation. It was submitted that an occupation of Vocational Educator is also listed on the skills shortage list and that, unless a person is a metal fabricator, he/she would not be able to teach this trade.

49. In his letter of 28 March 2021, the applicant reiterated that the position of metal fabrication trainer/teacher is only suitable for metal fabricators with extensive experience in welding techniques and different engineering processes.

50. The Tribunal finds that the purpose for the applicant’s stay in Australia is not lost as the applicant has found the new employer where he continues to be employed until the present time. Reinstating his Subclass 457 visa will enable the applicant to apply for a Subclass 482 visa if his new employer secures nomination approval.

1. The Tribunal has taken into consideration the fact that the applicant’s visa would, but for the cancellation, cease on 27 March 2022. Accordingly, if the applicant’s visa cancellation is set aside and his visa reinstated, he will have some seven months to secure nomination by his current employer and apply for a temporary work visa from Australia.

2. The applicant and his wife live in Kalgoorlie, a regional town in WA with some 30,000 residents. Both the applicant and his wife are employed in occupations that are in demand, particularly in regional Australia. Ms Marais is a fully registered teacher with the Teacher Registration Board of WA and is currently employed as a teacher at Coolgardie primary school. Their daughter is enrolled in a Certificate III in Early Childhood Education and Care.

3. The above considerations favour the reinstatement of the applicant’s visa.

   The reason for and extent of the breach

4. The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 12 August 2020. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 60 days. The Tribunal finds that the Department did not proceed with the visa cancellation until 24 March 2021.

5. Based on the evidence before it, the Tribunal is satisfied that the applicant commenced his employment at ITWS on 23 October 2020. His position is metal fabrication trainer/teacher. As of the time of the Tribunal’s decision the applicant continues to be employed at ITWS.

6. The Tribunal acknowledges that it has been more than 12 months since the applicant ceased his employment with the business that was an approved standard business sponsor and that successfully nominated the applicant. The Tribunal further finds that the applicant’s new employer ITWS attempted to nominate Mr Marais for a job in December 2020. Despite being unsuccessful with that nomination application, Mr Marais continues to be employed at ITWS.

7. For this reason, the Tribunal finds that in this instance, there was no significant breach of condition 8107.

   Circumstances in which the ground of cancellation arose

8. The applicant’s sponsor submitted a letter confirming that, because of the COVID-19 pandemic, the business was no longer in a financial position to pay its workers. Mr Marais was initially stood down in March 2020. As he was not given enough work and because of a deteriorating financial situation, the applicant had to resign from his job. Mr Marais reiterated in his evidence that resigning from his job was the only way to receive outstanding entitlements from CPC Engineering.

9. The Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant and are to that extent beyond his control. This consideration favours the reinstatement of the applicant’s visa.

   Past and present conduct of the visa holder towards the Department

10. There is no evidence before the Tribunal that the applicant previously breached visa conditions or that he was not co-operative with the Department. This consideration favours the reinstatement of the applicant’s visa.

    Degree of hardship that may be caused

11. The applicant submitted that he and his family will be adversely affected if the visa remains cancelled. He claimed that because of his age, it will be difficult to find employment in South Africa. However, in his evidence he conceded that neither he nor his wife has attempted to look for employment in South Africa. The Tribunal gives little weight to this claim.

12. The applicant claims and the Tribunal acknowledges that the COVID-19 situation in South Africa is not good. The Tribunal notes that the COVID-19 pandemic affects the entire world and that the purpose of granting a Subclass 457 visa is not to allow them to stay in Australia until the pandemic ends. The Tribunal gives no weight to this claim.

13. The Tribunal accepts that the applicant and his family have established significant ties with the Australian community. They provided several character reference letters including two letters of support from Mr Rick Wilson MP. The Tribunal also accepts that the applicant and his wife contribute to the Australian National Breast Cancer Foundation (NBCF) and are active members of a local church. The Tribunal further acknowledges that the applicant and his wife are providing financial support to their daughter and their family in South Africa.

14. The Tribunal accepts that leaving Australia may involve some hardship to the applicant and his family but is not satisfied that this hardship would be significant. The Tribunal does not accept that the applicant and his wife would not be able to re-establish themselves in South Africa given their family composition, qualifications and work experience.

15. Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

16. In any event, the applicant is not prevented from re-applying for a temporary work visa if and when the nomination application is approved by the Department.

17. This consideration does not favour the reinstatement of the applicant’s visa.

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

18. 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 has the opportunity to 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.

19. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as he breached the 8107 condition imposed on his visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

20. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

21. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which do not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

    Whether there would be consequential cancellations under s.140

22. Whilst the applicant’s wife’s and daughter’s visas were also cancelled because of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his wife and daughter.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

23. 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).

24. The Tribunal is satisfied that in the circumstances of this case cancellation would not lead to removal. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

25. 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. Based on the evidence before it, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements.

    The impact on any victims of family violence

26. There is no evidence before the Tribunal regarding this matter.

    Other relevant matters

27. The Tribunal acknowledges that the applicant and his wife may experience difficulties in returning to South Africa due to the travel restrictions in place because of the COVID-19 pandemic. The Tribunal observes that in this regard the Government has put in place several contingency options for visa holders that find themselves in Australia with limited options for returning home and that relevant information is available on the Department’s website.

28. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.

29. Having had regard to the findings above and the circumstances of the case, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa. The Tribunal finds that not cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

31. The Tribunal has no jurisdiction with respect to the other applicants.

    Antonio Dronjic
    Member

    
    

    Attachment A: Document List

    ·Applicant’s statement to the Department of Home Affairs dated 17/02/2021

    ·Letter from Rick Wilson MP dated 15/2/2021

    ·Letter from Churchwest dated 17/02/2021

    ·Letter from Industry Training & Workplace Services Pty Ltd (Undated)

    ·AMCT skills safety card (Malcolm Marais) – Enter and Work in Confined Spaces

    ·AMCT skills safety card (Malcolm Marais) – Operate a Gantry or Overhead Crane

    ·Copy of Malcolm Marais’ Driver Licence (WA)

    ·Job application correspondence with GT Boilermaking

    ·Licence to perform high risk work (Malcolm Marais)

    ·AMCT skills safety card (Malcolm Marais) – Operate Support Equipment Integrated Tool Carrier

    ·Working with children check (Malcolm Marais)

    ·TAFE appointment pool correspondence

    ·VETASSESS skilled migration results dated 23/05/2017

    ·AMCT skills safety card (Malcolm Marais) – Work Safely at Heights

    ·Applicant’s response to NOICC dated 17/02/2021

    ·Education documents (Bonita Perschel Marais) dated 15/08/2017

    ·Bachelor of Education Honours (Bonita Perschel Marais) dated 09/07/2017

    ·Letter of offer for fixed term employment (Bonita Perschel Marais)

    ·Copy of Bonita Perschel Marais’ Driver Licence (WA)

    ·Email from National Breast Cancer Foundation (Bonita Perschel Marais)

    ·Email confirming placement in fixed term teacher pool (Bonita Perschel Marais)

    ·Payslips (Bonita Perschel Marais) from the Department of Education for the years 2019 to 2020

    ·Payslip (Bonita Perschel Marais) from the Catholic Education Office for the period 20/09/2019 to 25/9/2019

    ·First aid certificate (Bonita Perschel Marais) dated 12/10/2020

    ·Working with children check (Bonita Perschel Marais)

    ·Email confirming grant of full teacher registration (Bonita Perschel Marais)

    ·Copy of Demi Perschei Marais’ Driver Licence (WA)

    ·Payslip (Demi Perschei Marais) from the Times One Pty Ltd for the period 13/01/2021 to 26/01/2021

    ·Overseas Student Confirmation of Enrolment (Demi Perschei Marais) – Certificate III in Early Childhood Education and Care

    ·TAFE letter of offer (Demi Perschei Marais) dated 16 February 2021

    ·CPC Engineering letter dated 25/03/2020 addressed to Malcolm Marais

    Attachment B: Document List

    ·Applicant’s Statement (Malcolm Marais) dated 28/3/2021

    ·Email correspondence titled ‘Vacancy application’ (Malcolm Marais)

    ·Email correspondence from Malcolm Marais to Drage Boilermaking

    Attachment C: Document List

    ·Submissions from the applicant’s representative dated 16/08/2021

    ·Letter from Rick Wilson MP dated 13/07/2021

    ·Letter from Industry Training & Workplace Services Pty Ltd dated 01/08/2021

    ·Letter from Coolgardie Primary School (undated)

    ·Statutory declaration by Dennis Kevin Maris dated 19 July 2021

    ·Copy of Dennis Kevin Maris’ South African national identity card

    ·Statutory declaration by Malcolm Grant Marais dated 24/08/2021

    ·Statutory declaration by Bonita Perschel Marais dated 24/08/2021

    ·Statutory declaration by Gregory John Hinrichsen dated 18/08/2021

    ·Copy of Gregory John Hinrichsen’s Heavy vehicle Driver’s licence

    ·Statutory declaration by Irvin Gerome Knipe dated 08/08/2021

    ·Copy of Irvin Gerome Knipe’s Driver’s licence (WA)

    ·Statutory declaration by Jesse Dorkin dated 27/07/2021

    ·Copy of Jesse Dorkin’s Driver’s licence (WA)

    ·Statutory declaration by Judith Suellen Whittaker dated 12/08/2021

    ·Copy of Judith Suellen Whittaker’s passport

    ·Notice of Assessment (Bonita Perschel Marais) for the year ended 30 June 2021

    ·Original and translated advice of result for Bonita Perschel Moses

    ·Western Australia Police check (Bonita Perschel Marais)

    ·South Africa Police Check (Bonita Perschel Marais) dated 14/10/2020

    ·Payslips (Bonita Perschel Marais) from the Department of Education for the year 2021

    ·Payslips (Bonita Perschel Marais) from the Catholic Education Office for the year 2021

    ·Pictures of Bonita Perschel Marais and students in a classroom

    ·Document titled ‘Relief Slip’ issued by Hannans Primary School dated 04/08/2021

    ·Supplementary Examination Result for Bonita Perschel Moses

    ·Letter from Churchwest (undated)

    ·Copy of Jason Duane Marais’ South African passport

    ·Cheque account statement for the period 29/06/2021 to 28/07/2021

    ·Notice of amended assessment for the year ended 30 June 2020 (Malcolm G Marais)

    ·Notice of assessment for the year ended 30 June 2020 (Malcolm G Marais)

    ·Employment agreement between Industry Training & Workplace Services Pty Ltd and Malcolm Marais

    ·Email correspondence regarding Malcolm Marais’ medical procedure on 15 October 2020

    ·Patient admission summary by Dr Jennifer Morgan for Malcolm Marais (15 October 2020)

    ·Medical tax invoice dated 17/09/2020

    ·St John of God Health Care brochure

    ·Email correspondence regarding Malcolm Marais’ medical procedure on 25 February 2021

    ·Patient admission summary by Dr Jennifer Morgan for Malcolm Marais (25 February 2021)

    ·Pain Chart (Malcolm Marais) dated 25/02/2021

    ·Medical tax invoice dated 16/02/2021

    ·Emails from Seek confirming job applications (Malcolm Marais)

    ·Letter confirming job application from Certsy

    ·Uncertified Financial document regarding South African and Australian expenses

    ·Malcolm Marais N3 Certificate

    ·Western Australia Police Check (Malcolm Marais)

    ·Payslips (Malcolm Marais) from Industry Training & Workplace Services Pty Ltd for the year 2020 to 2021

    ·South African Police Check (Malcolm Marais)

    ·Advanced project management certificate (Malcolm Marais)

    ·Project management certificate (Malcolm Marais)

    ·Vehicle Licence and Motor Injury Insurance Policy (Malcolm Marais)

    ·Malcolm Marais’ resume

    ·Income Tax Return 2021 (Malcolm Marais)

    ·Letter from Industry Training & Workplace Services Pty Ltd (Undated) certified on 23/08/2021

    Attachment D: Document List

    ·Data regarding South Africa’s coronavirus cases from Worldometer

    ·Data from Statistics South Africa regarding job loss

    ·Document titled ‘Jobs in Demand Employer Survey’ by the Australian Government

    ·Skilled occupation list by the Department of Home Affairs

    ·ABC News article dated 09/07/2018

    ·2013 Theses by Mairead Dempsey, Edith Cowan University

    ·Document titled ‘Economic Perspective’ by Goldfields-Esperance

    ·Document titled ‘Economy, Jobs and Business Insights’ by Goldfields-Esperance

    ·Document titled ‘Esperance Region Economy Development Strategy’ by Goldfields-Esperance

    ·City of Kalgoorlie Boulder website regarding Designated Area Migration Agreement

    ·Email correspondence titled ‘Letter of Support Visa Application’

    ·Document titled ‘Evidence of passing relatives of Malcolm Grant Marais in South Africa due to COVID-19’.

    Attachment E: Document List

    ·Document titled ‘Malcolm Grant Marais and his student and trainees – Pictures while working as a Metal Fabricator trainer for Industry Training and Workplace Services Pty Ltd’

    ·Statutory declaration by Arlene Rose Doherty dated 15/8/2021

    ·Copy of Arlene Rose Doherty’s Australian passport

    ·Statutory declaration by Nicholas Edwin Marr dated 1/9/2021

    ·Copy of Nicholas Edwin Marr’s heavy vehicle driver’s licence