McNealis (Migration)

[2020] AATA 5680

McNealis (Migration) [2020] AATA 5680 (10 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mhairi McNealis

CASE NUMBER:  2003759

HOME AFFAIRS REFERENCE(S):          Bcc2019/3082719

MEMBER:Michelle East

DATE:10 November 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 10 November 2020 at 10:08am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – Child Care Centre Manager – consideration of discretion – purpose of stay in Australia – made genuine attempts to secure a further nomination – failure to notify the Department and regularise migration status – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s 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 had not complied with Condition 8107(3)(b). 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 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from her partner, Mr Jones-Ladbrook.

4. On the morning of the hearing the applicant submitted several documents online, some of which the Tribunal was unable to access electronically prior to the hearing.  At the hearing, the Tribunal requested the applicant provide physical copies of the documents she wished the Tribunal to have regard to when making its decision.  The applicant was unable to do so within the time frame initially provided.  After giving a further extension of time the applicant was again unable to organise the documents into a physical bundle to be provided to the Tribunal.

5. After communicating with the applicant several times, it was agreed that she would provide specific documents as requested by the Tribunal officer on instruction from the Member.  A bundle of documents was received by the Tribunal on 3 November 2020.  The Tribunal has had regard to that bundle of documents together with all the documents which were submitted to the Tribunal prior to the hearing by the applicant.

6. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

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

8. 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 attached to the applicant’s visa. This condition requires that if the applicant ceases employment, the period during which the holder ceases employment cannot exceed 90 days.

9. On the basis of the information before it from the Department’s records and as detailed in the delegate’s decision, the Tribunal finds that the applicant was granted her most recent subclass 457 visa on 3 May 2016 as a Child Care Centre Manager (ANZSCO 134111).

10. The Tribunal finds that the applicant’s occupation of ‘Child Care Centre Manager’ is not a specified occupation for the purposes of paragraph 8107(3A).

11. According to the delegate’s decision, the Department received notification from the sponsor that the applicant had ceased working for them from 10 June 2019.

12. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 13 January 2020.  The applicant did not provide a response to the NOICC.

13. At the hearing, the Tribunal asked the applicant whether she agreed that she had in fact breached the conditions of her visa.During the course of her oral evidence she agreed that her time without working had exceeded 90 days.

14. The Tribunal therefore finds that during the period the applicant held her subclass 457 visa she ceased employment for more than 90 consecutive days and therefore breached condition 8107(3)(b) of her visa.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

17. The purpose of the applicant’s travel to and stay in Australia was to undertake work in a skilled occupation which could not be filled by an Australian employee.  The 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that the applicant would be able to remain in Australia on a permanent basis.  There is no other permitted purpose for holding a 457 visa.

18. In a submission provided to the Tribunal prior to the hearing and in oral evidence at the hearing the applicant said she was dismissed from her employment by her sponsor because of what she regarded as unfounded allegations of misconduct.  The Tribunal invited the applicant to explain this further at the hearing.  The Tribunal does not think it is necessary to detail what the allegations were as the Tribunal is unable to form a view as to their legitimacy.  The applicant did say however that she was dismissed without notice one week after being admitted to hospital for having taken an overdose of medication.

19. After leaving that employment the applicant was able to secure a new contract with another child-care centre to start on 18 August 2019. She said she was told that they were taking the appropriate steps to nominate her for a new Subclass 482 visa.  The child-care company she was to be employed by had been operating on the eastern seaboard and were expanding into WA.  The premises were under construction and there were delays in the building being completed which led to delays in her starting employment.

20. Departmental records indicate no new nomination was lodged in respect of the applicant within the 90 day time period, or at all.

21. The applicant said that at all times she was aware of the conditions on her visa and that she had breached the condition in question.

22. The Tribunal asked her why she hadn’t followed up on her visa and she said it was because previously when she had transferred from Queensland to WA all the visa arrangements were handled by her employer and she had mistakenly assumed that the same would happen with her new employer.  Unfortunately for the applicant this did not occur and she has breached the conditions of her visa.

23. Until the date of her employment being terminated, the Tribunal accepts that the applicant was fulfilling the purpose of her stay in Australia by working in her nominated occupation.

24. After her sponsored employment was terminated she made attempts to secure further employment and based on her oral evidence the Tribunal accepts that she was genuine in her intention.

25. The Tribunal notes the applicant’s visa was cancelled on 10 February 2020 and the applicant has been living unlawfully in Australia since that time.  Furthermore, she did not contact the Department to advise them of her change in employment status and she has made no efforts to obtain a bridging visa at any point since ceasing her employment with her sponsor.  Since the date of her employment ending in June 2019, the applicant has not been fulfilling the purpose of her stay in Australia.

26. The Tribunal accepts she was genuine in trying to secure a further nomination, however, when that did not eventuate she made no attempts to remain in Australia lawfully.  At the hearing she said the situation became overwhelming to the point where she did not open her mail.  She confirmed she had no contact with the Department even though she knew she was here unlawfully.

27. The Tribunal therefore finds that the applicant initially fulfilled the purpose of her travel to and stay in Australia but since her employment ended, has not done so.

28. In considering whether there is a compelling need to remain in Australia the Tribunal has had regard to the documentary evidence provided before and after the hearing from the applicant as well as the oral evidence given by herself and her partner Mr Jones-Ladbrook. 

29. The applicant gave substantial amounts of documentary and oral evidence regarding help she has given to her friend and her four children who have lived with her on and off since late 2019.  The friend was expected to give evidence on the applicant’s behalf but on the day did not attend the hearing.  The applicant has had care of the four children at different times when their mother has been unable to care for them.  At the moment these children are living with their paternal grandmother.  The Tribunal recognises the role the applicant has played in helping her friend with her children but also notes that she is not their legal guardian.  The Tribunal finds that her help with her friend falls short of being a compelling need.

30. Mr Jones-Ladbrook told the Tribunal that he and the applicant met in March 2020 and have formed a stable and committed relationship.  When questioned he said that he had no practical barriers to moving overseas if the applicant was to go offshore however his preference was to be living in Perth with her.

31. The Tribunal acknowledges that there may be some difficulty in the applicant and her partner relocating to Scotland but does not consider this to be a compelling reason not to cancel her subclass 457 visa.

32. The Tribunal finds this weighs in favour of it exercising its discretion to cancel the visa.

    Extent of applicant’s compliance with visa conditions

33. Prior to the applicant’s employment being terminated, there is no evidence before the Tribunal to suggest that she has not otherwise complied with the conditions of her 457 visa.

34. The applicant did not voluntarily cease her employment and made genuine attempts to secure a new nomination.  Balanced against this however is the fact that she made no attempt to contact the Department at any time and has knowingly been living unlawfully in Australia since January 2020.

35. The Tribunal finds this weighs in favour of it exercising its discretion to cancel the visa.

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

36. The applicant did not give any evidence of hardship that would be caused if she were to move back to Scotland.  She has lived in Australia for a significant period of time and told the Tribunal that she had expected to be eligible for a residency visa but for this cancellation.

37. The applicant and Mr Jones-Ladbrook expressed a desire to live in Australia together however Mr Jones-Ladbrook indicated he would be willing to relocate overseas with the applicant if necessary.

38. Not being eligible for a visa outcome that was expected whilst disappointing does not amount to hardship.

39. The Tribunal finds this weighs in favour of it exercising its discretion to cancel the visa.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

40. As noted above, the applicant was dismissed from her employment for alleged misconduct.  On the material available to it, it is unable to form a view as to the legitimacy of those claims.  The Tribunal accepts that the applicant made substantial efforts to secure a further nomination which was ultimately unsuccessful due to no fault of her own.

41. In the further bundle of material provided to the Tribunal by the applicant after the hearing, a letter dated 3 November 2020 by Natasha O’Neill, Director of Quest Early Learning, was included.  In that letter she states that she would like to engage the applicant as a part-time employee as Service Co-ordinator at Holy Spirit OSHC.  The Tribunal notes the ongoing efforts of the applicant to secure employment.

42. The Tribunal finds this weighs in favour of it not exercising its discretion to cancel the visa.

    Past and present behaviour of the visa holder towards the department

43. The Tribunal again refers to the applicant having been unlawful since February 2020.  The applicant was well aware of this circumstance and knowingly took no action to contact the Department. 

44. The applicant has explained how overwhelming her circumstances were and although the Tribunal is sympathetic to this situation, the ultimate responsibility for her circumstances rested with her.  She didn’t advise of any barriers that prevented her contacting the department other than a fear of the outcome.

45. With respect to her behaviour otherwise, there is no evidence before the Tribunal that the applicant has breached any other visa conditions or had adverse behaviour towards the Department.

46. Overall however, when balancing this against the long period of time that the applicant has been unlawful, the Tribunal finds this weighs in favour of it exercising its discretion to cancel the visa.

    Whether there would be consequential cancellations under s.140

47. Departmental records indicate that there are no consequential cancellations under s.140 of the Act.

48. The Tribunal finds this factor neutral in considering its discretion to cancel the visa.

    Whether the cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

49. The applicant is unlawful at the moment and subject to detention.  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 her to remain in Australia.  If that is so, she has the opportunity to depart Australia.  If she fails to do so, this may result in detention or removal action, but this is not a necessary consequence of the cancellation decision.

50. The Tribunal is mindful that section 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 section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas which does not include business or skill visas. This limits the visa applications which can be made by the applicant whilst onshore. However, these are the intended legislative consequences of the cancellation and they are consistent with the objectives of the migration program.

51. The Tribunal gives this factor some weight in favour of its discretion to cancel the visa.

    Whether any international obligations, including non-refoulement and the best interest of the children as a primary consideration would be breached as a result of the cancellation

52. There is no evidence before the Tribunal to suggest that any international obligations would be breached as a result of the cancellation.  The Tribunal considers this factor neutral in the exercise of its discretion.

    Any other relevant matters

53. When reviewing the evidence, the Tribunal has noted that there are unfounded allegations against the applicant.  Firstly, in relation to the circumstances in which she was dismissed from her previous employment.  From the information available to it, it is not possible for the Tribunal to form a view on the legitimacy of those claims.  Furthermore, at the time the Department cancelled the visa that information was not known.  It was voluntarily disclosed by the applicant which lends weight to the view that her claims are credible.  The Tribunal accepts that her subsequent attempts to obtain another nomination were genuine and didn’t come to fruition due to no fault of her own.

54. What the Tribunal struggles with however, is that prior to her visa being cancelled, the applicant did not and after cancellation she has continued to live here unlawfully.  The applicant stated quite clearly that she chose to ignore the problem and hoped it would go away.

55. From the evidence of the applicant it appears that she has been of significant support to her friend and her friend’s four children.  The friend was expected to be at the hearing and give evidence in support of the applicant.  The applicant wasn’t able to contact her prior to the hearing and no excuse was given for her non-attendance.  The Tribunal doesn’t draw any adverse inference from her non-attendance.

56. The children in question could be described as vulnerable and are currently in the care of their paternal grandmother.  Allegations of neglect and possible abuse as described in the notes from the Department of Child Protection are concerning.  The applicant stated that she had primary care of the children when her friend was hospitalised with mental health issues.  Prior to the children being taken into the Department of Child Protection in November 2019 the applicant had told their mother that she could no longer care for four young children on her own.  This led to the mother leaving the children at day-care with the intention of them being taken into care, which ultimately happened.

57. Based on the applicant’s evidence alone, she has been a source of support to her friend and the four children.  Understandably this became too much for her and there are now alternative care arrangements in place.  The applicant has said she is wanting to be trained as a foster carer and if she stayed in Australia that would be her intention.

58. Unfortunately, however, even though the applicant has been of support to her friend and appears to be in a committed relationship with her partner, that is not sufficient to sway the Tribunal that it should not exercise its discretion to cancel the visa.

59. Having regard to the findings above and the circumstances of this case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh those for not cancelling.  The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

60. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Michelle East
    Member