Mcmahon (Migration) - [2022] AATA 507

Mcmahon (Migration) [2022] AATA 507 (1 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Paula Mcmahon
Mr Glen Brennan
REPRESENTATIVE:  Mrs Helena Smith-O'Connell (MARN: 1067998)
CASE NUMBER:  2102607
HOME AFFAIRS REFERENCE(S):          BCC2019/6833002
MEMBER:Noelle Hossen
DATE:1 March 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 01 March 2022 at 3:56pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – applicant ceased employment over 60 days – allegations of workplace bullying – employer issued redundancy letter – nomination for new employer not approved – employment prospects – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 8 Condition 8607
CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 2 March 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1) (b) on the basis that the standard business sponsor who nominated the applicant in the most recently approved nomination for the visa Trimcom Civil Contracts Pty Ltd (“the sponsor”), whose nomination was approved on the 11 December 2018. The sponsor advised the Department that the applicant ceased employment with them effective 18 December 2019. The Department found that the applicant had not complied with condition 8607(5) because the period during which she 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.
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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.
The applicant provided the following documents to the Tribunal prior to the hearing namely:
Passport of the applicant and G. Brennan.
Statutory Declaration of G.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mcmahon (Migration)

Details

AGLC: Mcmahon (Migration) [2022] AATA 507
Case: [2022] AATA 507
Decision Date: 1 March 2022

CaseChat Overview and Summary

This matter concerned an application by the applicant, Ms. McMahon, to review a decision by the Department of Home Affairs to cancel her Temporary Skill Shortage (Class GK) visa, Subclass 482. The applicant had ceased employment with her sponsoring employer more than 60 days prior to the review, and a subsequent nomination application for a new employer was refused. The applicant alleged workplace bullying by her former employer.

The primary legal issue before the Tribunal was whether the applicant's Subclass 482 visa should be cancelled, considering the grounds for cancellation and the exercise of discretion. Specifically, the Tribunal had to determine if the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was met, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal found that the ground for cancellation under s 116(1)(b) was satisfied because the applicant had ceased employment with her sponsor and had not secured new employment with an approved sponsor within a reasonable timeframe. While acknowledging the applicant's submissions regarding workplace bullying and the resulting stress and anxiety, which the Tribunal accepted as appalling behaviour, it found that these matters did not outweigh the reasons for cancellation. The Tribunal considered the applicant's purpose for being in Australia and concluded that it was no longer aligned with the purpose for which the visa was granted. Furthermore, the Tribunal was satisfied that cancelling the visa would not breach Australia's international obligations.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 482 visa. The Tribunal noted it had no jurisdiction concerning a second applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is nothing in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Therefore, the Tribunal is satisfied that there is little in these matters to weigh against exercising the discretion to cancel.Conclusion Based on the evidence before it and considering all the relevant circumstances on balance the Tribunal finds that the reasons for exercising the discretion not to cancel the applicants subclass 482 Visa do not outweigh the reasons to cancel the visa Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa. The Tribunal has no jurisdiction with respect to the second named applicant.Noelle HossenMember

Ratio Decidendi

Legal Principle Established

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 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: The Delegate’s Decision contains the following facts:” The Visa holder was granted a temporary skill shortage subclass 482 Visa on 11 December 2018 for the purpose of employment with an approved sponsor in a skilled occupation which could not be filled from within the Australian workforce will store the Department received written notification from the sponsor advising that the Visa holder ceased employment with the sponsor effective 18 December 2019.As discussed, in Part C, the nomination application lodged by Dela Civil Pty Ltd to nominate the Visa holder to work in the occupation of Accountant (General) (ANSZCO 221111 ) was refused on 12 February 2021. I note that the Department has given the Visa holder more than nine months since the and NOICC response, to await the outcome of the nomination application before proceeding further with the consideration of cancelling her Visa. According to the departmental records and the Visa holder’s response to the and NOICC, the Visa holder does not have any other pending nominations with another sponsor after the most recent nomination application by Dela Civil Pty Ltd.I also note that the Visa holder has remained in Australia for more than 14 months since ceasing employment with the sponsor without successfully obtaining new employment with an approved sponsor. I consider this has been a reasonable amount of time for the Visa holder to pursue her options to find a new approved sponsor, to be granted another Visa or to depart Australia.Based on the information before me I am satisfied that the Visa holder’s purpose in Australia is no longer in line with that for which her current Visa was granted” The applicant did make submissions that her sponsor from Trimcom Civil Pty Ltd did behave very badly towards her and threatened to cancel her visa on a regular basis. There is no doubt that his behaviour was appalling, The Tribunal accepts the applicant’s evidence. She provided a Medical report from a general practitioner De. Joo-Mee Hwang that states that on the 17 July 2020 she was suffering from work related stress and anxiety, causing palpitations at the time of the visit to her medical practitioner. She provided evidence that she sought psychological assistance from 22 July 2021 to the 17 December 2021.