Mols de Castro (Migration)

[2021] AATA 3918

Mols de Castro (Migration) [2021] AATA 3918 (22 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Javier Mols de Castro

CASE NUMBER:  2016112

HOME AFFAIRS REFERENCE(S):          BCC2020/1081365

MEMBER:Noelle Hossen

DATE:22 July 2021

PLACE OF DECISION:  Perth

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

Statement made on 22 July 2021 at 11:05am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Public Relations Professional – ground for cancellation – ceased employment with sponsor – consideration of discretion – pending nomination with new employer – decision under review set aside

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 26 October 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 subclause (3) (b) of condition 8107 The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   The applicant appeared before the Tribunal on 13 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Yaakov Gordon.   

3. 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

4. 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

5. 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 holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days.

6. The Department of Home affairs received written notification from the sponsor EBAY AUSTRALIA AND NEW ZEALAND Pty Ltd. (the nominated sponsor) advising that the applicant had ceased employment with them effective on the 7 February 2020.

7. The departmental records indicate that the applicant lodged a subsequent nomination application with the sponsor EVENT HOSPITALITY Pty Ltd on the 6 April 2020, however that application was refused by the Delegate of the Department on the 19 October 2020. The applicant’s sponsor is seeking a review of that decision before the AAT and the application is still pending.

8. He has not had a nomination application approved since he ceased employment with the sponsor exceeding 60 days at the time that the delegate made the Decision on the 26 October 2020.Therefore there is a ground for cancellation under Section 116 (1) (b) of the Act as he has not complied with condition 8107.

9. 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

10. 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

11. The applicant was granted a Temporary Work (Skilled) (subclass 457) visa on the 21 February 2017. The visa was granted to enable the applicant to work in Australia for an approved sponsor in a temporary skill shortage occupation which could not be filled from within the Australian workforce.

12. The standard business sponsor was EBAY AUSTRALIA AND NEW ZEALAND Pty Ltd.

13. His nomination was approved for work as a Public Relations Professional. The sponsor notified the Department that the applicant was no longer employed since the 7 February 2020.A new nomination was lodged on the 6 April 2020 by EVENT HOSPITALITY Pty Ltd. The nomination was not accepted by the Department on the 19 October 2020.

14. At the time that the Department cancelled the Visa and refused the nomination, it could be said that the applicant had failed in his bid to be lawfully employed in accordance with his visa conditions.

15. The applicant told the Tribunal that the department had queried the fact that it was unlikely that there would be enough work in the industry of eventing due to the covid-19 pandemic.

16. The employer from EVENT HOSPITALITY Pty Ltd namely Yaakov Gordon told the Tribunal at the hearing that he considered that the applicant was a central figure in the business and was very much needed to assist as they were extremely busy in the eventing industry. They are involved with a ticketing platform and the events are usually organised at least 6 months prior to the event. They are involved in sorting out tickets for large events such as the AFL. He said that the company was well established and that it had been operating for 8 years. He has an office in St Kilda in Victoria, but the applicant was working in Queensland.

17. He said that the applicant had been instrumental in the business in arranging international extensions and events. They have 2 fulltime employees in Australia as well as 2 owners of the company.

18. The Tribunal had regard to a letter provided to the Tribunal by the employer dated the 22 April 2021 which set out the history of the eventing company. It stated that the company started off as a small ticket reseller about 8 years ago. They sold tickets to different concerts and sporting events across Australia. The sales were primarily from the EBAY platform.

19. It was now a multinational company with offices in Australia and the Philippines. They are now starting to sell tickets for events across the globe. They are now the largest ticket reseller in the Southern Hemisphere.

20. He said that in early March 2020 they did let a couple of staff members go and did not claim job seeker.

21. The company is involved in ticketing and does not organise the actual events. He said that even at the height of the pandemic in February and March 2020 the promoters were still organising events and that these events were going on sale. There is a long lead time between events as often they take place 6 months after the sale of tickets.

22. His new sponsor said that they are reliant on the applicant for his skills, connections and with his ideas and abilities. He was in fact a crucial employee for their business.

23. The applicant said that he was well qualified as he had worked for his previous sponsor for 2.5 years. He has been living in Australia for 5 years.

24. The Tribunal has considered all the evidence given at the hearing and accepts the evidence as being truthful and confirms that the applicant’s purpose for his temporary visa. The applicant has a pending application for a review with his new employer and the employment is consistent with the purpose of the 482 visa.

25. The Tribunal places a lot of weight on the fact that the applicant has been able to secure employment in a field of work as anticipated by his previous visa in favour of the applicant’s case.

    the extent of compliance with visa conditions:

26. Other than the initial breach of his visa conditions he has not breached any other condition of his visa. The Tribunal has weighed that against exercising its discretion to cancel the applicant’s visa.

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

27. If the applicant’s 482 visa is cancelled, he will have to leave Australia. He is presently receiving a reasonable remuneration of approximately $1200 per week.

28. He has made friends in Australia and he said that he had 2 cars and a motorcycle. He does not have a partner or any family in Australia.

29. He would have to return to Spain to live with his father. He does have a dog in Australia and there will be difficulties in relocating with his dog to Spain.

30. His employer stated that they would be very worried if he was unable to remain in Australia as he had become an integral part of the business.

31. The applicant may also experience difficulties in returning to his home country due to the travel restrictions in place as a result of Covid -19 pandemic.

32. The Tribunal finds that there will be some hardship suffered by the applicant if his visa is cancelled and weighs those factors in favour of not cancelling 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:

33. The applicant did cease his employment with the sponsor on the 7 February 2020.

34. The applicant did lodge a new nomination that was refused by the Department but is the subject of a pending review by the AAT.

35. At the time of the Decision of the Delegate the applicant did not have an approved nomination with an approved sponsor since he ceased his employment with his previous sponsor.

36. The Tribunal places a little weight in favour of cancelling the visa

    past and present behaviour of the visa holder towards the department

37. The applicant has provided a response to the Department Notice of intention to cancel the Visa in the specified timeframe. There is no evidence that he has not complied with the conditions of the visa or has not cooperated with the Department.

38. The Tribunal places weight against cancelling the visa to these factors.

    whether there would be consequential cancellations under s.140:

39. There is no evidence that there would be consequential cancellations of any other persons if the visa is cancelled. The Tribunal does not afford any weight to these factors for or against the cancellation of the visa.

    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:

40. Since the applicant’s visa was cancelled, he has been in receipt of Bridging Visas. The risk of him becoming an unlawful citizen will not arise if he leaves Australia within 28 days if his visa is cancelled.

41. If his visa is cancelled he will not be able to obtain a visa from offshore within 3 years. He may have some difficulties returning to Australia within 3 years.

42. The Tribunal has weighed those matters in the applicant’s favour; it has weighed them against exercising its discretion to cancel the applicant’s 482 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].):

43. There is no evidence before the Tribunal that the facts of this case would engage Australia’s international obligations by the cancellation of the applicant’s visa.

44. Considering the circumstances as a whole, the Tribunal concludes 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 Subclass 457 (Temporary Work (Skilled)) visa.

    Noelle Hossen
    Member