Ondong'a (Migration)

[2021] AATA 3112

Ondong'a (Migration) [2021] AATA 3112 (9 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Evans Magati Ondong'a
Mrs Anne Manoti Nyaenya
Mr Gabriel Ondong'a Magati
Miss Janelle Mikaila Magati
Mr Joel Nyaenya Magati

CASE NUMBER:  2101964

HOME AFFAIRS REFERENCE(S):          BCC2019/5833349

MEMBER:Vanessa Plain

DATE:9 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 9 July 2021 at 11:30am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant breached condition 8107(3)(b) – applicant ceased employment for a period exceeding 60 consecutive days – applicant took honest and reasonable steps to procure new employment – applicant has gained further employment with another sponsor – new approved standard business sponsor – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116,140, 348
Migration Regulations 1994

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 February 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 (the Act).

2. The delegate cancelled the visa under s.116(b) on the basis that the applicant breached condition 8107(3)(b) as the period during which the applicant ceased employment 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 other applicants’ visas were 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 those other visas 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 them.

4. The applicants appeared before the Tribunal on 9 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Damien Cerantonio, the proprietor of the Great Ocean Road Resort.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

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?

8. The Delegate’s decision record contends that the applicant has not complied with subclause (5) of condition 8607 attached to their subclass 482 (Temporary Skill Shortage) visa, which states:

   “8607

   (5) If the if the holder ceases employment the period during which the holder ceases employment must not exceed 60 consecutive days:

   […]

9. The Delegate’s decision record of 15 February 2021 provides as follows:

   “The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is Clifton Springs Golf Club (‘the sponsor’), whose nomination was approved on 8 June 2018. The sponsor has advised the Department that the visa holder ceased employment with them effective 15 October 2019.

   This appears to indicate the visa holder has not complied with condition 8607(5) because the period during which the visa holder has ceased employment has exceeded 60 consecutive days.”

10. A Notice of Intention to Consider Cancellation dated 7 May 2020 (NOICC) was sent to the applicant at their nominated address.  The applicant provided responses to the NOICC dated 11 May, 19 May, 5 June and 3 July 2020 respectively.   

11. On 4 June 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 9 July 2021.  The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case. 

12. The applicant provided the following documents to the Tribunal:

    (a)The delegate’s decision record

    (b)Current contract of employment dated 11 March 2021 with Great Ocean Road Resort (and further contract of employment submitted in support of the employer nomination)

    (c)Great Ocean Road SBS Nomination (approved 2 June 2021)

    (d)Department of Home Affairs acknowledgment of employer nomination application received dated 4 July 2021 

    (e)Written submissions of the migration agent

    (f)Bridging Visa E with working rights

    (g)Declaration of the primary applicant (verifying contents of migration agent written submissions)

    (h)Witness statements of the primary and secondary applicants

    (i)Witness statement of Damien Cerantonio, director of Great Ocean Road Resort Hotel Group Pty Ltd  

    (j)A suite of documents evidencing the primary applicant’s employment at Great Ocean Road Resort

    (k)A suite of documents evidencing the primary applicant’s employment with Eureka

    (l)Character references

13. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that their visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that they had not complied with the conditions of their visa. Specifically, the 8607 condition to which their visa was subject, prescribes in 8607(5) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

14. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

15. As at the hearing, the applicant stated in his oral evidence that he left his employment at the Clifton the Clifton Springs Gold Club in October 2019 due to a dispute over the terms of his proposed new employment contract.  He started working for Eureka Group as a chef more than 60 days later.  Eureka Group agreed to sponsor the applicant for a subclass 482 visa, however, the nomination application was refused by the department on 4 February 2021.    

16. The applicant further stated that he has full working rights on his bridging visa and has been working as a chef for Great Ocean Road Resort since March 2021.  The SBS nomination has been approved and he is awaiting the outcome of the employer nomination which was lodged with the Department on 4 July 2021.    

17. Based on the applicant’s evidence, the Tribunal finds that the applicant ceased employment with the sponsoring business on or about 15 October 2019.  The Tribunal further finds that the period during which the applicant ceased employment exceeded 60 consecutive days.  Accordingly, the Tribunal finds that the applicant did not comply with condition 8607(5).

18. For these reasons, the Tribunal finds 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 power to cancel the visa should be exercised.

    Consideration of discretion

19. 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’.

20. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1] See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for

21. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    Purpose of applicant’s travel to and stay in Australia

22. The purpose of the Temporary Skill Shortage (subclass 482) visa is for skilled workers from outside Australia who have been sponsored and nominated by an approved business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for the Clifton Springs Golf Club as a Chef on a temporary basis.

23. The applicant was unfortunately placed in an untenable workplace environment when in October 2019, the employer provided the applicant with an updated contract of employment that included less favourable terms that the contract which he was originally working under.    

24. The Tribunal places significant weight upon the steps taken by the applicant to obtain alternative employment from October 2019 onwards, which is wholly supported by the suite of contemporaneous documents produced by him as set out above, as evidence of the genuine steps taken by the applicant to rectify the breach of his visa condition.

25. Importantly, in March 2021, after the nomination by Eureka Corporate Pty Ltd was refused by the Department, the applicant immediately obtained employment with Great Ocean Road Resort (as he was entitled to do given the full working rights attached to his bridging visa) and this business has formally nominated the applicant for a position in the business following approval of its SBS nomination.  The witness statement of the director of Great Ocean Road Resort provides that the applicant is integral to the business.   

26. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is employed by an Australian company which is an approved standard business sponsor, and which has applied to nominate the applicant for a position within the business.

27. The purpose of granting a temporary skill shortage visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. A chef is a position listed in the relevant list of occupations.  The subclass 482 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.

28. The Tribunal finds that this purpose presently exists as the applicant has taken up employment with their proposed sponsor in March 2021.   

29. The Tribunal affords this consideration significant weight in favour of not cancelling the visa.

    The extent of compliance with visa conditions

30. The non compliance with a visa condition arose when the applicant ceased working with their sponsoring employer in October 2019.  The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 60 days. This was contained in a condition of their visa, which stated if the employment ceases it ‘must not exceed 60 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor and which successfully nominated the applicant to work at the business within that 60 day period.

31. However, the Tribunal is satisfied that the applicant took honest and reasonable steps to procure new employment as set out above and the fact the applicant has secured new employment well in advance of the Tribunal hearing means that the Tribunal places little weight upon the failure to procure employment within 60 day in these circumstances.   

32. The applicant informed the Tribunal that they have also complied with all other visa conditions. The Tribunal has no reason not to accept that evidence.

33. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The circumstances in which the ground for cancellation arose

34. The applicant ceased their employment at the sponsoring business in October 2019.  The Department did not proceed with the visa cancellation until 15 February 2021.  The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with another business sponsor.

35. The Tribunal notes that in the applicant’s evidence they stated that they started looking for work with new employers immediately following their departure from the gold club in October 2019 and did in fact secure new employment with Eureka Corporation, but this employer’s nomination for the application was refused by the Department in February 2021 despite the applicant having worked in good faith as a chef at Eureka for some time.  The Tribunal places significant weight upon the oral and written evidence of Damien Cerantonio, director of Great Ocean Road Resort Hotel Group Pty Ltd, to the effect that the applicant has been employed as a chef with Great Ocean Road Resort since March 2021, is integral to the business, is filing a position for which an Australian citizen could not be found and the Resort has had its SBS nomination approved an is awaiting the outcome of the employer nomination lodged on 4 July 2021.

36. Importantly, the Tribunal accepts that the circumstances in which the ground for cancellation arose were not the fault of the applicant due to the fact that his previous employer sought to effectively ‘downgrade’ the terms of his employment by providing him with an updated employment contact on lesser terms that his original contract.  This was wholly unsatisfactory to the applicant who is solely responsible for the financial welfare of his wife and three minor children.   The Tribunal also places weight upon the fact that the applicant took honest and reasonable steps to immediately rectify, and ultimately did rectify, the visa breach by the time of the Tribunal hearing. 

37. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

38. The Tribunal acknowledged the migration agent’s written submissions as to the hardship and difficulty the applicant will suffer if his visa remains cancelled.  The Tribunal asked the applicant whether he will suffer any hardship if his visa remains cancelled.  The applicant stated to the Tribunal that he will suffer significant hardship, as will his young family, because his family are dependent upon him, in a financial sense, his two sons are well advance din their schooling in Australia and his 6 year-old daughter was born in Australia and he never returned to the applicant’s home country.

39. The applicant stated further that in his industry in his home country, COVID-19 has had a disastrous effect on the hospitality industry, which is reliant not on locals, but foreign tourists.  He is immensely concerned at the prospect of having to return to Kenya where it is highly unlikely that he will be able to finds employment and he is also immensely concerned at the impact such a return would have upon the educational growth of his sons and their mental health.  One of the applicant’s sons, Joel Nyaenya, is attending Nelson Park School which is a special school. Should the family have to go back to Kenya, it would be difficult for the family to find a proper school which can accommodate his needs.

40. The Tribunal has taken into consideration the applicant’s evidence and the migration agent’s submissions addressing the hardship the applicant faces.  It particularly acknowledges that it is presently difficult to leave the country due to Covid.  

41. Balanced against any potential hardship to the applicant and their family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a subclass 482 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a subclass 482 visa is to allow skilled workers to come to Australia and work for an approved business for a temporary period of time.

42. However, taking into account all the above matters, the Tribunal acknowledges that the applicant and particularly his minor children will suffer some hardship and gives this consideration some minor weight against cancelling the visa. 

    The visa holder’s past and present behavior towards the Department

43. The applicant did not respond to the NOICC, but the Tribunal has no reason to believe that the applicant read the NOICC in view of his explanation set out above. 

44. There is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

45. The Tribunal gives this consideration some minor weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

46. The second, third, fourth and fifth named applicants are dependent upon the primary applicant’s visa.  The cancellation of the applicant’s visa results in a consequential cancellation for the dependent visa holders under s140 of the Act.  

47. As this cancellation will impact the visa status of the dependant visa holders, the Tribunal gives this consideration a little weight against cancelling the visa.

    Legal consequences of a decision to cancel the visa

48. The applicant is currently on a bridging visa as a result of the current review process. 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 them to remain in Australia. If that is the case, they have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

49. The Tribunal observes that the applicant’s Subclass 482 visa was cancelled under s.116(1)(b) of the Act because they breached the 8607 condition imposed on their visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 482 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa The applicant’s proposed employer, Great Ocean Road Report is an employer who is approved as a standard business sponsor and has submitted a nomination form in relation to the applicant on 4 July 2021.

1. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

2. The Tribunal is mindful that s.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 s.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 skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

3. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia.  These are mandatory and intended consequences of the legislation.  However, given the matters set out above, the Tribunal considers that theses consequence in the circumstances of this case would be manifestly unfair.

4. The Tribunal therefore gives this consideration some weight against cancelling the visa.

   Australia’s international obligations

5. 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. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

6. The applicant informed the Tribunal that that his three minor children live in Australia and are dependent upon him and his visa.  As the three children will have their visas cancelled, the Tribunal has considered the Convention on the Rights of the Child (CRC) to which Australia is a signatory. Australia has an obligation to ensure that all actions concerning children are taken as a primary consideration for the best interest of the child. In relation to cancellation actions, this does not preclude cancellation of a visa but requires the delegate to turn their mind to the consequences of the cancellation, specifically whether a child will be separated from their family unit.

7. In this case, the Tribunal places significant weight upon the fact that the applicant’s son is a special needs child and the applicant’s daughter was born in Australia and has never visited the home country of her parents.  The Tribunal affords this consideration greater weight than the fact that the family will not be separated as a result of the visa cancellation. 

8. The Tribunal gives this consideration a little weight against cancelling the visa.

   The impact of any victims of family violence

9. There is no evidence before the Tribunal regarding this issue.

   Any other relevant matters

10. There is evidence before the Tribunal as to the difficulty in returning to the applicant’s home country due to Covid-19.

11. The Tribunal acknowledges that the applicant may experience difficulties in returning to Kenya due to the travel restrictions in place as a result of the COVID-19 pandemic. The Tribunal observes that in this regard the Government has put in place several contingency options for visa holders that find themselves in Australia with limited options for returning home and that relevant information is available on the Department’s website.

12. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.  There are no other relevant matters before the Tribunal. 

13. The matters set out above do not reveal any bad faith on the part of the applicant, having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa.

14. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

15. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

17. The Tribunal has no jurisdiction with respect to the other applicants.

    Vanessa Plain
    Member

    
    
    

Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration
[2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for
Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for
Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship

[2007] FMCA 1492 at [55].