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

1. 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).

2. 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.

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 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.

4. 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. Brennan dated the 17 July 2020.

   Temporary Skill Shortage Visa of G. Brennan.

   Letter from the applicant to Archie dated the 17 July 2020.

   Applicant’s Visa grant.

   Decision of the Delegate of the Department.

   Character Reference of G. Brennan.

   Personal Reference Glenn of Applicant from police officer.

   Agent letter regarding 482 cancellation.

   Text message from employer demonstrating his abuse.

   Applicant’s Doctor Certificate.

   New Character Reference for Glenn Brennan.

5. The Tribunal sent a hearing invitation to the applicant on the 30 September 2021.

6. On the 6 October the applicant requested a hearing postponement and provided the

   following documents:

   Medical certificate from Dr Krisna Sura.

   Patient history from pharmacy.

   Medical Certificate dated the 24 June 2021.

7. The Tribunal granted a postponement of the hearing.

8. The applicants appeared before the Tribunal on 2 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Glenn Brennan. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

9. The Tribunal provided further time for the applicant to present further evidence by 7 days.

10. The applicant did provide all of the documents as requested by the Tribunal and those documents have been considered by the Tribunal.

11. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. The Tribunal confirms that it has read and carefully considered the material filed by the applicant in the Tribunal, as well as the information contained in the Departmental file.

    Notification Procedures

14. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the Visa holder invited to show either, that the grounds do not exist, or that there are reasons why the Visa should not be cancelled. In addition, a visa may not be cancelled before the Visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

15. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review with the Tribunal. Although the Visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reasons why the Visa should not be cancelled, this does not place an onus on the Visa holder to rebut the possible ground of cancellation identified.

16. On the 14 July 2020 the Department sent the applicant a Notice of Intention to Consider Cancellation (the notice) noting that departmental records indicated that she had ceased working for the employer effective from 18^th of December 2019. As a result, the Department informed the applicant in the relevant notice that her subclass 482 Visa might be cancelled under subsection 116(1)(b) of the Act because she may have breached condition 8607(5). The notice invited the applicant to comment on why her Visa should not be cancelled and she responded to this invitation on the 18 July 2020.

17. Accordingly, the Tribunal finds that the applicant was given notice of the Department’s intention to consider cancellation of her subclass 482 Visa is required under the legislation.

    Does the ground for cancellation exist?

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

18. 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.

19. In his Decision dated the 2 March 2021 the delegate stated as follows: The Department received written notification from the sponsor advising that the Visa holder ceased employment with the sponsor effective 18 December 2019. In response to the NOICC, the Visa holder believes that she remained compliant with her Visa conditions. She claims that the cessation date was in early January 2020, and the nomination with Dela Civil Pty Ltd was lodged within the 60- day timeframe. I do not accept the Visa holder’s claims and acknowledged that she ceased employment with the sponsor on 18 December 2019. It was stated in the letter of termination of employment issued on 18 December 2019 by the sponsor that her employment with the sponsor ended immediately which means her employment with the sponsor ceased on 18 December 2019. I also note that the Visa holder has not provided any evidence to support her claims that the employment termination date was agreed between her and the sponsor to be in early January 2020. I add that the flight booking is not the evidence for such an agreement between the Visa holder and the sponsor.

    According to the Visa holder’s response to the NOICC and the departmental records, Dela civil Pty Ltd lodged a nomination application before the Department on 26 February 2020 to nominate the Visa holder to work in the occupation of Accountant (general) (ANSZCO 221111).  I note that a notification was sent to Della civil Pty Ltd on 12 February 2021 regarding the outcome of the nomination application and that the nomination application was refused.

    At the time of decision, I consider the visa holder has not had a new nomination lodged on her behalf and therefore has not had an approved nomination in place to work for a sponsor in a skilled occupation since she ceased appointment with the sponsor on 18 December 2019.

    I am satisfied on the evidence before me that the period during which the Visa holder has ceased appointment has exceeded 60 consecutive days and therefore there is a ground for cancellation under section 1161B of the act is not complied with condition 8607 of her Visa.”

20. In her submissions to the Tribunal the applicant’s representative set out the following points:” After several workplace incidents namely bullying causing major anxiety and stress to Miss Paula McMahon Trimcom Civil Pty Ltd issued her with a redundancy letter on 18 December 2019. Miss McMahon took a long break from employment due to major stress and anxiety as a result of workplace bullying.

    Miss McMahon had two weeks annual leave owing when she left Trimcon on 18 December 2019 which she took and went away with her partner Glenn to take a few weeks away to recover mentally from the impacts of stress from Trimcon Civil Pty LT D

    Taking time to recover and getting herself well mentally, she began her search for new employment and was offered an interview with Della Civil Pty Ltd. She was successful in that interview was offered a new role as an accountant within that company.”

21. The Tribunal did not sight any evidence and the applicant did not provide any evidence to show to the Tribunal that there was an agreement between her and her employer that the termination date was any other date than the 18 December 2019. The representative refers to the letter from her employer as a redundancy letter and the Delegate refers to it as a termination letter.  The Tribunal finds that the termination letter otherwise referred to, as” redundancy letter” ended the sponsorship of the applicant for employment on the 18 December 2019 and therefore the applicant had 60 days to obtain a new sponsor.

22. To her credit the applicant was able to obtain a new sponsor and made the necessary application on the 26 February 2020. The application for nomination of the new sponsor was not approved by the Department.

23. The Tribunal finds that the applicant’s last approved nomination was with Trimcom Civil Pty Ltd and that the applicant has not worked for the sponsor or another approved sponsor, since 18 December 2019.

24. 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

25. 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:

26. 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”

27. 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.

28. The applicant did lodge a fresh application for a new nomination for a sponsor to be approved in February 2020. She was planning to work for her new sponsor. The Tribunal has considered the fact that the applicant did wish to return to work and would have done so if her nomination had been approved. She does not provide any evidence as to why she thought she could go back to work at the time that she agreed to her sponsor ‘s application to be lodged.

29. The Tribunal specifically asked the applicant if she had working rights during her time in Australia after the visa was cancelled. The Tribunal did not get a straightforward answer, but it was eventually established that both the applicant and Mr. Brennan did have full working rights. Mr Brennan has continued to work throughout the time spent in Australia. He said he supported the applicant financially.

30. The applicant was asked why she had not lodged a review of the Department’s Decision to decline the application for Della Civil Pty Ltd to be the new sponsor. The Tribunal did not receive a clear answer to that question. The gist of their answers was that it was their understanding that they should pursue the Review application to cancel and not ask for a review of the Decision for the nomination of a new sponsor. The applicant and her partner’s evidence were that they were ready to apply for the new nomination for Della Civil Pty Ltd to be a new sponsor , but once it had been rejected but they did not lodge the application because within 2 days they received the Department’s Decision to cancel the Visa.

31. Mr Brennan indicated that one of the directors of Della Civil Pty Ltd was a friend but corrected to say that he was a social acquaintance that he met in Australia on nights out at a community-based establishment.

32. Her representative filed submissions on the 3 March 2021 and stated as follows:” Ms McMahon had two weeks annual leave owing when she left Trimcom on the 18 December 2019, which she took and went away with her partner Glenn to take a few weeks away to recover mentally from the impact of stress from Trimcom Civil Pty Ltd.

    Taking time to recover and getting yourself well mentally she began her search for new employment and was offered an interview with Della Civil Pty Ltd. She was successful in that interview and was offered a new role as an accountant within the company.

    On the 26^th of February 2020 Della Civil Pty L TD lodged a position nomination for Miss Paula McMahon to nominate her into the role of accountant with their company. She gladly accepted the position with the company but had not taken up the role and was waiting for the position nomination to be approved before transferring her subclass 482 Visa over to the new company.

    On the 12^th February 2021, the Department of Home affairs issued a refusal notice to Dela civil Pty Ltd  advising them of the refusal based on the decision that they did not consider the position to be genuine, with the view that general accountant’s positions are generally for large operations which is in my view a case officer’s” generalisation” view because I know many medium-size construction companies with skilled in-house accountants doing all accountancy tasks as listed in ANZSCO 221111.I have attached my assessment of the refusal for your review. I believe this too was an incorrect decision.

    Upon discussion with Della civil Pty Ltd the decision was made to not appeal the refused nomination with the Tribunal because it didn’t solve anything given the lengthy wait times of over two years, but rather the view was to gather the expansion plans, increased business data and more substantial details to re-lodge a new position nomination with evidence to convince the case officer that indeed in-house accountants can work in small to medium-size businesses( in particular industries such as construction and engineering). They had run their advertisements again to ensure meeting LMT (labour market testing) requirements through major recruitment websites and job active. There were due to relodge the new nomination on March 4^th 2021 and the cancellation occurred on March 2, 2021 (2 days earlier).

33. As set out above the Tribunal does not accept that the applicant’s employment was terminated later than the 18 December 2019.  Whilst the applicant did have a desire to remain in Australia, she did not have a pending application for a new nomination from a sponsor at the time of the hearing.

34. The Tribunal finds that this factor does not weigh against exercising the discretion to cancel the subclass 482 Visa.

    The extent of compliance with visa conditions and past and present behaviour towards the Department:

35. The Tribunal accepts that the applicant has not previously breached any visa conditions. There is also no evidence to suggest that the applicant has a history of difficulties, or lack of co-operation with the Department.

36. The Tribunal finds that this factor does weigh against the discretion to cancel the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship):

37. The applicant’s partner is listed as a dependant on the Applicant’s Visa. As such his visa would be subject to consequential cancellation under Section 140 of the Act.

38. The applicant and her partner would like to obtain permanent residency in Australia. Having lived in Australia since 2017the applicant and her partner feel that they have assimilated and are comfortable in Australia. They are worried that they may have some difficulties when returning to Ireland.

39. While it may be upsetting for the applicant to depart Australia, particularly after living here for more than 5 years with aspirations to remain permanently, the Tribunal finds that the cancellation of the visa will not result in any significant hardship to the applicant and her family. The Tribunal notes that the applicant has no financial commitments related to housing in Australia and has family who own property in Ireland.

1. The applicant now has the benefit of some work experience in Australia and her partner has as well. The Tribunal notes that the applicant held a temporary visa with no guarantee that he could remain in Australia on the expiration of the visa.

2. The Tribunal asked the applicant and her partner at the hearing, whether they had accommodation to live in, in Ireland, if the decision was not in their favour and the Visa was cancelled.

3. The applicant said that she will return to live with her parents until she finds a job and that her partner would be welcomed to join her. She was living with her parents when she applied for the working Holiday Visa.

4. The applicant and her partner explained that they had travelled to Ireland on one occasion on a holiday for Easter in 2019 for 3 weeks and had appropriate accommodation. The applicant’s partner said that he came from a disadvantaged background and would not have accommodation to live in, but the applicant confirmed that he could live with her at her parents’ home. He said in his oral evidence that he had stayed on the sofa at Paula’s parents’ home, at his aunt’s home and in a caravan.

5. The applicant was working as an accountant prior to her arrival in Australia. The reason that the applicant obtained the nomination for the Visa was because she had work experience as she had been employed in her home country.

6. Mr. Brennan gave evidence that he was still in College before they decided to travel to Australia on a working holiday.

7. He says that he now earns $2,600 per fortnight in Australia as he will be the Deputy Finance Officer of the Human Rights Commission. He said as he was in College in Ireland that he held a job in retail at Woolworths. He has experience and will likely get employment in Ireland.

8. These factors do not weigh against exercising the discretion to cancel the visa.

   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

9. The policy suggests that the Tribunal should consider whether there are extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

10. The history of the matter is that the applicant was sponsored by Trimcom Civil Pty Ltd on a subclass 482 visa in the occupation of accountant on the 11 December 2018 to the 11 December 2022.

11. Her representative submitted in writing as follows: “After several workplace incidents (namely bullying causing major anxiety and stress to Miss Paula McMahon, Trimcom Civil Pty Ltd issued her with a redundancy letter on the 18 December 2019. Miss Mc Mahon took a long break from employment due to major stress and anxiety as well as depression as a direct result of workplace bullying.”

12. Her representative made the following submissions:” I find it astonishing that little or no weight has been given to the impacts of severe bullying has had on Miss Paula McMahon. I  as a professional registered migration agent of 12 years managed several distraught phone calls from Miss Paula McMahon and her defacto partner Glenn Brennan in relation to her experiences and advised them both that it was my strong professional opinion that she seek immediate medical attention and speak to her GP re-support for her mental health moving forward because these circumstances were beyond the control.”

13. The Tribunal accepts that her treatment by her employer was inappropriate and caused her severe distress. However, the applicant did not take steps to remedy the situation, for instance there was no evidence submitted to the Tribunal that she made a claim for unfair dismissal or an application for redress through the appropriate channels.

14. The Tribunal accepts that the applicant did seek assistance from a psychologist and diligently attended for assistance. The Tribunal accepts her evidence and the evidence of her partner as to the circumstances and the inappropriate conduct of the Directors of Trimcom Civil Pty Ltd. The Tribunal has considered the evidence regarding the emotional strain caused to the applicant as a result of workplace bullying.

15. The Tribunal has also considered the evidence of Mr. Brennan as to the extraordinary circumstances regarding the health and well being of his family members in Ireland. It is a very sad situation for both to be placed in.

16. The Tribunal places some weight on those factors in favour of the applicant’s case.

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

17. The Tribunal acknowledges that upon the cancellation of her visa, the applicant would become an unlawful non-citizen and be liable to be detained under section 189, and liable for removal under section 198 if she does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of her visa.

18. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a Visa is cancelled on the grounds of section 116.

19. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new visa from overseas in the future. The Tribunal weighs those factors in favour of 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].)

20. 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.

21. 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

22. 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

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

24. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

25. The Tribunal has no jurisdiction with respect to the second named applicant.

    Noelle Hossen
    Member