Mole (Migration)

[2024] AATA 2702

Mole (Migration) [2024] AATA 2702 (18 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Geoffrey Mole

CASE NUMBER:  2409457

HOME AFFAIRS REFERENCE(S):          BCC2023/301486

MEMBER:Karen McNamara

DATE:18 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 407 (Training) visa.

Statement made on 18 July 2024 at 1:34pm

CATCHWORDS
MIGRATION – cancellation – Training (Class GF) visa – Subclass 407 (Training) – temporary stay for purpose of visa – no longer undertaking training – discretion to cancel visa – previous training while on working holiday visa – told by sponsor shortly after training visa granted that they could not commit to personal one-on-one training, and sponsorship terminated – attempts to obtain migration advice – advice somewhat misguided – enrolment in futher formal education and future employment options – length of residence, relationship with Australian citizen, social relationships and support networks – psychological and emotional hardship – mandatory consequences – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(ia), (1A)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 April 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 407 (Training) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant (Mr Geoffrey Mole) has provided to the Tribunal a copy of the delegate’s decision record. It records that on 17 October 2022, the applicant was granted a Training (subclass 407) visa based on his sponsorship with AI Talent Pty Ltd for the period 17 October 2022 to 17 May 2024. The delegate records that on 24 October 2022, the Department was notified that the applicant ceased training with their sponsor as of 21 October 2022.

3. On 22 March 2024, the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant did not respond to the notice.

4. On 16 April 2024, the delegate cancelled the visa under s.116(1)(g) of the Act, on the basis that a prescribed ground for cancelling the visa applied to the applicant. That is, the applicant was no longer undertaking training with the approved sponsor and therefore the purpose of their stay in Australia was no longer in line with the purpose of their visa.

5. Between 4 June 2024 and 19 June 2024, the applicant provided information in support of his application including the following;

   ·Written submission (undated)

   ·Letter dated 10 June 2024 from Elke Cryer Psychologist

   ·Various email correspondence between applicant and Migration representatives

   ·Statement by Joy Deason Bailey dated 12 June 2024

   ·Conditional letter of offer UTS dated 5 February 2024 (Master of Business Analytics)

   ·Letter of offer UTS dated 13 February 2024 (Graduate Certificate in Business Administration)

   ·NSW Police Force Statement of a Witness

   ·Western Union money transfer statements

   ·Various text messages between applicant and migration adviser

   ·Letter of offer UTS dated 30 April 2024 (Bachelor of Cybersecurity)

6. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

7. The applicant appeared before the Tribunal on 20 June 2024, to give evidence and present arguments.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

9. 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

10. 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)(g). 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?

11. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(ia) is relevant that is the grounds in subregulation (1A) are met. The grounds are that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have at the time of grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which the visa holder’s visa was granted.

12. In evidence before the Tribunal the applicant does not dispute that he ceased training activities with AI Talent Pty Ltd in October 2022. At the hearing the applicant told the Tribunal that he had been undertaking training with the sponsor since September 2021 and had been disappointed with the degree of training he had been receiving, in so far as the training solely consisted of him undertaking online tutorials. Whilst somewhat disillusioned with the standard of training being offered by the sponsor, the applicant persevered and was granted a subclass 407 visa on 17 October 2022. Following the grant of the 407 visa, the sponsor advised him that they could not commit resources to provide him personal training and ended the sponsorship arrangement. The applicant confirmed that he did not obtain sponsorship from a subsequent sponsor despite trying to find one.

13. On the evidence before it, the Tribunal is satisfied that the applicant ceased training with the sponsor on 21 October 2022. As the applicant was no longer undertaking training activities with the sponsor, it appears that he no longer had a genuine intention to stay temporarily in Australia to carry out the purpose for which the visa was granted.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) 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

15. 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’.

    Background

16. The applicant is a 33-year-old citizen of The United States of America. He first arrived in Australia on a Working holiday (subclass 462) visa on 31 May 2018. On 17 October 2022 the applicant was granted a Training (subclass 407) visa which was subsequently cancelled by the Department on 16 April 2024. On 16 May 2024 the applicant was granted a Bridging visa E (subclass 050). The Tribunal notes that the sponsor terminated their training sponsorship of the applicant on 21 October 2022, four days after the applicant was granted the visa. The applicant told the Tribunal that he been undertaking training with the sponsor since September 2021, following the completion of his studies in Advanced Diploma in Digital Marketing. However shortly after being granted a Training (subclass 407) visa the sponsor advised him that they could not commit to personal one on one training and recommended he pursue higher education in a related field of study.

17. The applicant originally came to Australia on a working holiday with the intention to work and travel utilising his skills and experience as a systems analyst and media work, he had undertaken in the USA. In May 2020 the applicant was granted a Student (subclass 500) visa and attained an Advanced Diploma in Digital Marketing. The applicant told the Tribunal that he wished to develop his skillset and was offered an opportunity with the sponsor to obtain training. However, he became concerned with the method of training being provided by the sponsor in that he was undertaking online learning.

18. Following the cessation of the training opportunity with the sponsor, the applicant claims that whilst he sought alternate sponsorship, he was not aware that his visa was at risk of cancellation as he was under the impression his former sponsor was affording him opportunity to seek a different educational path. It was not until he received advice from the Department in March 2024, regarding the notice of intention to consider cancellation of his visa, that he became aware that there was an issue. The Tribunal noted that he failed to respond to the Department’s notice despite requesting an extension to do so. The applicant told the Tribunal that he had misleadingly listened to advice from a law student and did not submit a response.

19. Information before the Tribunal shows that the applicant made multiple attempts to obtain migration advice, and by his own admission accepted advice transpiring to be somewhat misguided. At the hearing and in written submissions, the applicant acknowledged the consequences of his conduct in failing to notify the Department of his change in circumstances in so far, he was no longer undertaking training with the sponsor and understands that he may now be prevented from applying onshore for certain visas.

20. The applicant stated that he wished to remain onshore to be afforded opportunity to apply for a student visa with the intention of enrolling and undertaking studies at the University of Technology Sydney (UTS) in Cybersecurity. In support of his claim, the applicant has provided a letter of offer from UTS offering him a place in the 2024 spring intake for Bachelor of Cybersecurity.

21. The Tribunal has considered the following relevant factors, having regard to Department guidelines and matters raised by the applicant in his response to the cancellation of his visa as contained in the applicant’s written submissions and oral evidence before the Tribunal.

    Assessment of the Evidence:

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

22. In exercising its discretion, the Tribunal has first considered whether the visa holder has a compelling need to travel to or remain in Australia.

23. The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of training. The Tribunal accepts that the purpose for his travel to Australia was to obtain work and training experience in the area of data analytics. It accepts his reasons why he did not continue training with his former sponsor and acknowledges his desire to submit an application to the Department for a student visa in order to undertake studies in Bachelor of Cybersecurity with UTS.

24. The Tribunal therefore considers there is a compelling need for him to stay in Australia in order to apply for a student visa to enable him to enrol in Bachelor of Cybersecurity studies.

25. The Tribunal gives this discretionary factor considerable weight in favour of the applicant.

    The extent of compliance with visa conditions

26. There is no information before the Tribunal that the applicant did not comply with any other conditions on his visa.

27. The Tribunal gives this discretionary factor weight in favour of the applicant.

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

28. At the hearing the applicant told the Tribunal that he is currently working in construction and receives occasional financial support from his mother in the USA. The applicant told the Tribunal that he faces employment uncertainty if he returns to the USA as he wishes to complete studies in Cybersecurity from an Australian university which will provide viable employment options for him.

29. At the hearing the applicant told the Tribunal that he has been in Australia six years during which time he has developed close interpersonal relationships and support networks. The applicant to date has been in a two-year relationship with an Australian citizen who does not at this stage wish to relocate to the USA. Should the applicant be required to leave Australia in the imminent future, this relationship would possibly cease.

30. Whilst there is no probative evidence before the Tribunal to indicate the degree of financial hardship the applicant may suffer if the visa is cancelled, the applicant has provided written evidence from Elke Cryer Psychologist attesting to the psychological and emotional hardship that may be caused should the applicant not be afforded opportunity to complete training in Australia.

31. The Tribunal therefore accepts there will be a degree of hardship if the visa is cancelled and  affords weight in favour of the applicant.

    Circumstances in which the ground of cancellation arose

32. The Tribunal has had regard to the evidence before it as to the circumstances in which the ground for cancellation arose. In this instance, the ground for cancellation arose because the applicant ceased training with his approved sponsor. The Tribunal has considered the evidence before it supporting the reason as to why the applicant’s sponsorship ceased and accepts in the absence of evidence to the contrary, the applicant’s explanation of said circumstances.

33. Having afforded consideration to the circumstances arising as purported by the applicant, the Tribunal places weight on the sponsor’s inability to provide in person training and subsequently termination of the sponsorship of the applicant.

34. The Tribunal attributes some weight in favour of the applicant.

    Past and present behaviour of the visa holder toward the Department

35. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration weight in the applicant’s favour.

    Whether there would be any consequential cancellations under s.140

36. The applicant claims to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal therefore gives this factor no weight.

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

37. There are mandatory consequences in the cancellation of the applicant’s visa, including difficulties for the applicant in obtaining any further visas.

38. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant will have limited options to apply for further visas in Australia following the expiry of his current Bridging visa. The applicant would need to depart Australia and apply from overseas for most types of further visa applications, causing inconvenience and additional financial strain.

39. The applicant provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

40. The Tribunal affords this consideration some weight in favour of the applicant, given the applicant has applied and subsequently been accepted to enrol at UTS in the 2024 Spring intake and wishes to be afforded opportunity to submit an onshore application for a student visa.

    Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

41. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

42. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

43. The Tribunal finds that the cancellation of the applicant’s visa would not lead to a breach of Australia’s international obligations. The Tribunal places no weight to this consideration as favouring the applicant.

    Any other relevant matter

44. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are aspects that are considerably favourable to the applicant as outlined above. Having consideration to the entirety of the evidence before it and the circumstances presented as a whole, the Tribunal concludes on balance that the visa should not be cancelled.

    DECISION

45. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Training (subclass 407) visa.

    Karen McNamara
    Member