Proctor (Migration)

[2021] AATA 818

Proctor (Migration) [2021] AATA 818 (18 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mark Patrick Proctor

CASE NUMBER:  2013736

HOME AFFAIRS REFERENCE(S):          BCC2020/1256703

MEMBER:Antonio Dronjic

DATE:18 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 18 February 2021 at 5:02pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 Temporary Skill Shortage – ceased employment more than 60 days – position of Hotel or Motel Manager – COVID-19 lockdown and trading restrictions – sponsoring business ceased its operations – new employer willing to sponsor the applicant – adverse impact on business – new employer approved as a standard business sponsor – decision under review set aside   

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994, r 2.12; Schedule 8, Condition 8607

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Rani & Ors v MIMA (1997) 80 FCR 379
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Tien & Ors v MIMA (1998) 89 FCR 80
Vishnumolakala v Minister for Immigration [2006] FMCA 1209        

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s 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 breached condition 8607(5), 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 second named applicant’s visa was 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 the second named applicant’s visa 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.

   Background to the cancellation of the applicant’s visa

4. The decision record of 31 August 2020 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 17 February 2020, the applicant was granted a Subclass 482 visa, to remain valid until 17 February 2022;

   ·The standard business sponsor (SBS) who most recently nominated the applicant to work as a Hotel or Motel Manager was Warrenwood Pty Ltd (the sponsor);

   ·On 28 February 2020, the applicant ceased his employment with the sponsoring business;

   ·A notice of intention to consider cancellation (NOICC) was issued on 24 June 2020;

   ·On 31 August 2020, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 8 September 2020 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 5 January 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 2 February 2021.

6. On 27 January 2021, the applicant submitted:

   ·A copy of his resume; and

   ·A copy of a letter from the applicant’s current employers stating that the applicant is employed as a venue manager at Barton Fink Bar Lounge Café at High Street, Thornbury and that the business intends to sponsor the applicant.

7. The applicant appeared before the Tribunal via video link on 2 February 2021 to give evidence and present arguments.

8. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing.

9. 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.

10. 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.

11. The applicant is a national of United Kingdom. He is no longer in a relationship with Ms Julia McNeilly who departed Australia in May 2020. The applicant confirmed that she was not included in the review application. He has no relatives living in Australia. His parents and two siblings live in the UK.

12. Prior to arriving to Australia in January 2015 as a holder of a working holiday visa, the applicant was living and working in Scotland. On 14 January 2016, he was granted a Subclass 457 visa based on the sponsorship and nomination made by the Australian Venue Company (Open Doors). He worked at three different venues in Melbourne (The Provincial Hotel in Brunswick, The Auburn Hotel and the Duchess restaurant in Melbourne CBD).

13. He was most recently sponsored and nominated to work as a Hotel or Motel Manager at Torquay Hotel by Warrenwood Pty Ltd. He commenced his full-time employment in December 2019 and continued to work there until March 2020 when the hotel was closed due to the COVID-19 lockdown imposed by the Victorian government.

14. He gave evidence that, because of the COVID-19 lockdown and trading restrictions imposed on the hospitality industry in Victoria, it was impossible to find an alternative employer within the 60 days. He conceded that he breached the condition 8607 imposed on his visa but reiterated that it happened because of factors beyond his control.

15. He gave evidence that the Department granted him work rights in August 2020. Soon after this he found new employment at Barton Fink Bar Lounge Café at Thornbury, where he still works as a venue manager. His annual salary is $74,000. The Tribunal noted that his current employer provided a letter in support of the review application indicating their willingness to sponsor the applicant for further temporary stay in Australia.

16. The applicant stated that his employer was advised to wait for the outcome of the review application before lodging the nomination application with the Department. The Tribunal noted that the employer was not prevented from nominating the applicant for a position within their business.  

17. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached condition 8607 that was imposed on his Subclass 482 visa, as the period during which he ceased employment exceeded 60 consecutive days, and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

18. The Tribunal indicated that it would take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application. It asked the applicant if there was anything else that he wanted to raise with the Tribunal.

19. The applicant stated that he relies on the same reasons as stated in his response to the NOICC provided to the Department. He added that his current employer stated in the letter provided to the Tribunal that they will be adversely affected if he is no longer allowed to work there.

20. Upon his request, the Tribunal granted the applicant additional time until 16 February 2021 to provide additional documentary evidence in support of the review application, including evidence that his current employer applied to the Department for approval of a nomination for a Subclass 482 visa and nominated the applicant for the position within their business.

21. On 16 February 2021, the applicant submitted:

    ·A copy of the Department’s notification of approval as a standard business sponsor dated 9 May 2018 as evidence that the Trustee for Barton Fink Bar Lounge Café Trust is an approved sponsor until 9 May 2023;

    ·A copy of the Department’s acknowledgement letter dated 15 February 2021 as evidence that Barton Fink Bar lounge Café Pty Ltd nominated the applicant for a Subclass 482 visa; and

    ·A copy of a receipt from the Department for payment of nomination application fees and SAF levy by the nominating business.

22. 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

23. 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?

24. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8607 is attached to the applicant’s visa. The condition in 8607(5) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 60 consecutive days.

25. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 28 February 2020. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8607(5).

26. 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 power to cancel the visa should be exercised.

    Consideration of discretion

27. 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’.

28. 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 (No. 2) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala 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].

29. 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 considered the submissions and evidence it received from the applicant.

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

30. The Subclass 482 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

31. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a Hotel or Motel Manager on a temporary basis. The applicant ceased his employment at the sponsoring business on 28 February 2020 because the venue was closed due to the COVID-19 lockdown and trading restrictions imposed by the Victorian Government on the hospitality industry in Victoria.

32. The applicant decided to remain in Australia. The Tribunal accepts that the applicant managed to find new employment at Barton Fink Bar Lounge Café at Thornbury in August 2020. This entity is an approved sponsor and on 15 February 2021 it nominated the applicant for a Subclass 482 visa.

33. Based on the Department’s notification of approval of SBS, the Tribunal is satisfied that the applicant’s current employer has been approved as a sponsor on 27 November 2017. Based on the Department’s acknowledgment letter of 15 February 2021, the Tribunal is satisfied that the applicant’s current employer, Barton Fink Bar Lounge Café, nominated the applicant for a position within their business and that the decision on this application is pending.

34. The Tribunal has taken into consideration the fact that the applicant’s visa would have, but for the cancellation, ceased on 17 February 2022. This is the consideration that favours reinstatement of the applicant’s visa.

35. The Tribunal finds that the purpose of the applicant’s stay in Australia is not lost as the applicant has found the new employer that nominated the applicant for a position within the business. This is the consideration that favours the reinstatement of the applicant’s visa.

    The extent of compliance with visa conditions

36. The applicant lost his job on 28 February 2020 when the sponsoring business ceased its operations due to trading restrictions imposed by the Government in response to COVID-19 pandemic.

37. The entire hospitality industry in Victoria was shut down from March 2020. The Tribunal accepts that it was very difficult if not impossible for the applicant to find an alternative employer within a 60 day period willing to sponsor and nominate him for the position within the business.

38. As soon as he obtained work rights in August 2020, the applicant commenced employment as a venue manager at Barton Fink Bar Lounge Café at Thornbury.  He has continued employment at this business to the present day. There is no evidence before the Tribunal that the applicant previously breached any of the conditions imposed on his visas.

    Degree of hardship that may be caused to the applicant

39. The Tribunal accepts that the applicant has been living in Australia since January 2015 and that he established considerable personal and employment ties with the Australian community.

40. The Tribunal accepts that the applicant may experience difficulties in returning to his home country due to the travel restrictions in place as a result of the COVID-19 pandemic. The applicant may be able to apply for a bridging E visa that will enable him to remain in Australia temporarily until he is able to depart Australia. The Tribunal also notes that the Government has put in place several contingency options for visa holders who find themselves in Australia with limited options for returning home.

41. Balanced against any potential hardship to the applicant 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.

    Circumstances in which ground of cancellation arose

42. The applicant lost his job when the sponsoring business ceased its operations due to trading restrictions imposed by the Government in response to the COVID-19 pandemic.

43. The Tribunal accepts that the circumstances in which the ground for cancellation arose were beyond his control. This is the consideration that favours the reinstatement of the applicant’s visa.

    The impact on any victims of family violence

44. There is no evidence before the Tribunal regarding this matter.

    Past and present conduct of the visa holder towards the Department

45. The Tribunal accepts the applicant’s claims that he has been co-operative with the Department and previously complied with visa conditions.

    Whether there would be consequential cancellations under s.140

46. The applicant is no longer in a relationship with Ms Julia McNeilly who departed Australia in May 2020. The applicant confirmed in his evidence that she was not included in the review application.

    Whether there are mandatory legal consequences to a cancellation decision, whether indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s.46A, s.46B, s.48, s.48A, s.91E, s.91K and s.91P of the Act); and whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s.189, and liable for removal under s.198

47. 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 him to remain in Australia. If that is the case, he can depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

48. 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 visa, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

49. 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).  

1. 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.

   Other relevant matters

2. The applicant’s representative submitted, and the Tribunal accepts, that the applicant’s new employer, Barton Fink Bar Lounge Café will be adversely affected if the applicant is no longer able to work there. The Tribunal acknowledges that the applicant’s new employer has applied to the Department for approval of a nomination for a Subclass 482 visa, nominating the applicant for the position within its business.

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

   DECISION

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

   Antonio Dronjic
   Member