Paniyadi (Migration)

[2021] AATA 3946

Paniyadi (Migration) [2021] AATA 3946 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pritish Paniyadi
Ms Vaishalli Pritish Paniyadi
Mr Shivaansh Paniyadi

CASE NUMBER:  2015364

HOME AFFAIRS REFERENCE(S):          BCC2020/1912125

MEMBER:Amanda Upton

DATE:30 September 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 30 September 2021 at 4:45pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – applicant ceased employment over 60 days – company restructure – impact of the COVID19 pandemic – travel outside Australia not possible – applicant obtained new employment interstate – financial hardship – decision under review set aside  

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

STATEMENT OF DECISION AND REANS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 October 2020 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(1)(b) on the basis that the applicant had ceased working for his sponsoring employer on 3 June 2020 and had not returned to work for that employer for more than 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 8 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Vaishalli Pritish Paniyadi. The Tribunal found the evidence of Ms Paniyadi and the applicant to be honest and credible.

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. 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. In this instance condition 8607 attached to the applicant’s visa. At 8607(5) this condition requires that the visa holder must not cease employment for a period exceeding 60 consecutive days.

9. The applicant concedes that he did not comply with the visa condition as he had ceased employment for over 60 days.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(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

11. 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’.

12. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.   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. 

13. 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.

14. 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 his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8607, to which his 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.

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

16. The applicant was granted a subclass 482 visa on 10 July 2019. It expires on 10 July 2023.

17. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was Brennan IT Pty Ltd whose nomination was approved on 7 May 2019. The applicant ceased employment with the company on 3 June 2020.

    Purpose of the applicant’s travel and stay in Australia

18. The applicant arrived in Australia on 3 February 2019. His family, his wife and 6-year-old did not initially accompany him and they arrived in September 2019. The applicant’s wife works as a Medical Administrator at an ultrasound clinic and his son is in year 1 at school.

19. At the time of the hearing the applicant was situated in Brisbane as he had started his employment, and his wife and son were still in Sydney.

20. The applicant’s purpose for arriving in Australia was to work. He had previously been in Australia on a business visa and had been in the Indian office of the company that he came to Australia to work for.

21. The Tribunal notes that the applicant had at the time of the hearing lodged an application for a subclass 600 visa. The applicant explained to the Tribunal that the reason for this was to regularise their status as they could not travel outside Australia and were concerned about their visa status. The application was made on the advice of their migration consultant. The application was made seeking work rights as the applicant wanted to continue to work.

22. The applicant explained to the Tribunal that he did not have enough money to book flights home and it was difficult to in fact find an appropriate flight; that his concern was really that they were in Australia legally and they did not fit into any of the other visa categories. He explained that it was an attempt in the circumstances to gain some more time to obtain an appropriate position which the applicant was confident he would eventually be able to do. The Tribunal does not draw adverse inferences with respect to this application.

23. The Tribunal considers that the applicant was willing to leave his wife and child in Sydney to pursue work to be an indication that he is serious about his commitment to work in Australia.

24. The applicant has sourced new employment in a professional IT role in his nominated occupation, since the visa cancellation and the Tribunal considers that the applicant’s purpose for travel and stay in Australia remains to be to work.  The Tribunal gives this factor weight in not cancelling the visa.

    Extent of the applicant’s compliance with visa conditions

25. The applicant ceased employment on 3 June 2020 due to a company restructure as a result of the Covid-19 pandemic.  The applicant secured new employment in his nominated occupation with Fuji Xerox. At the time of the hearing Fuji Xerox was an accredited sponsor however s no new nomination had been lodged. This employment commenced in March 2021.

26. Given this, the Tribunal considers that the applicant has not been compliant with his visa condition for a period of over a year. The Tribunal considers that this is a significant period of non-compliance and gives this factor weight in favour of cancellation of the visa.

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

27. The applicant will suffer significant financial hardship if the visa is cancelled and has provided evidence of such in seeking a fee waiver from the Tribunal, which was granted. Having to return to India will also cause him financial difficulty due to costs of flights and quarantine.

28. The applicant raised a genuine concern about being able to find employment in India in the current circumstances and has witnessed family members in India suffering financial distress throughout the pandemic.

29. The applicant’s son is settled at school and the applicant considers that it would emotionally be very difficult for the family to return to India.

30. The Tribunal accepts generally, that the cancellation of a visa results in opportunities lost and disappointment. It also accepts that there is potentially a financial loss for the applicant. The Tribunal considers that it is expected that there will be consequences to a visa cancellation and these are such consequences. As such the Tribunal balances these matters against the concerns that the applicant raises and gives some weight in favour of not cancelling the visa.

    Circumstances in which ground of cancellation arose

31. The applicant ceased employment with his employer on 3 June 2020 as the result of a restructure due to COVID. The company (outsourced IT management) had two people managing a customer: a client manager and a service manager. During COVID the company combined the two roles in order to reduce costs which resulted in the applicant losing his position as did three other people in his team.

32. There was no role in India that he could return to and he was able to apply for another role in the company but in the circumstances where there was not another one to apply for.

33. The applicant then applied for jobs across Australia but there were not a lot of job opportunities at the time even making contact with a recruitment consultant. He applied for close to 200 jobs and thinks that the fact that he needed sponsorship made it more difficult to find a company willing to short list him. He is of the belief that the costs of nomination were a turn off for companies as when he had information about visa sponsorship in his applications he would not get called and after he removed the information he noticed that he was getting more calls, at least initially.

34. The applicant was then referred by one of his previous customers to Coeliac Australia for work. They were happy to engage him but they could not sponsor him due to being an NGO. The applicant was happy to volunteer to stay occupied and engaged whilst looking for work. He worked for a couple of hours a day and when his wife started working April last year and continued to work from Tuesday-Friday.

35. The Tribunal considers that the loss of his employment was beyond the applicant’s control and that he made genuine attempts to find employment during what was a difficult time to source employment. The Tribunal notes that the applicant was willing to move interstate to work, and did so, even if it meant separation from his family. The Tribunal also notes the applicant’s willingness to do volunteer work as an indication of his commitment to working.

36. The applicant’s employer is aware of the need for a nomination and has discussed it with the applicant.

37. The Tribunal gives these considerations weight in favour of not cancelling the visa.

    Past and present behaviour of the applicant towards the Department

38. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

    Whether there would be consequential cancellations under s.140

39. The applicant is married with one dependent child and their visas are subject to consequential cancellation under s.140.

40. Noting the matters discussed above about the hardship that the applicant’s family would experience if the visa was to be cancelled the Tribunal gives this factor a little weight in favour of not cancelling the visa.

    Whether any 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. 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).

42. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.  The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

43. Accordingly, the Tribunal does not give this consideration any weight to these considerations, either in favour of or against cancellation of the visa.

    If the visa is a permanent one, whether the visa holder has strong family, business or other ties in Australia

44. As the applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration, either in favour of or against cancellation of the visa.

    Any other relevant matters

45. There are no other matters before the Tribunal to consider.

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

    DECISION

47. 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.

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

    Amanda Upton
    Member