Reidford (Migration)

[2020] AATA 5928

Reidford (Migration) [2020] AATA 5928 (3 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Scott William Reidford
Ms Lynn Conroy
Miss Amy Conroy Reidford
Master Harry Conroy Reidford

CASE NUMBER:  2000911

HOME AFFAIRS REFERENCE(S):          BCC2018/4027005

MEMBER:Andrew George

DATE:3 November 2020

PLACE OF DECISION:  Darwin

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 – Regional Sponsored Migration Scheme visa.

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

Statement made on 3 November 2020 at 7:03pm

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa– Subclass 187 – panel beater – employment terminated within the required employment period of 2 years– business closed down– best interests of children–credible evidence provided – decision under review set aside

LEGISLATION
Fair Work Act 2009 (Cth), s 386
Migration Act 1958, ss 137T,137Q, 348, 358, 375A
Migration Regulations 1994, r 2.50AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 January 2020 to cancel Mr Reidford’s Subclass 187 – Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The visa was cancelled on the basis that Mr Reidford was unable to satisfy the Minister that he made a genuine effort to be engaged in his nominated employment for the required period of two years.[1] The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   [1] Delegate’s Decision/8.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to Mr Reidford. The other visas were automatically cancelled because of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. Mr Reidford and Ms Conroy appeared before the Tribunal on 3 November 2020. They were represented by Mr Simmons of MSM Legal. In compliance with the practice directions, Mr Simmons filed an indexed and paginated bundle of all relevant documents prior to the hearing (the Hearing Book). Indeed, the Tribunal compliments Mr Simmons for his efforts in this regard.

5. During the hearing, the Tribunal dealt with a signed and dated certificate and notification regarding disclosure of certain information under s.375A of the Act. The Tribunal found this certificate to be valid, although it curiously seemed to identify the whole departmental file. On occasions such as this the Tribunal is not assisted by a lack of written argument from the Secretary: s.358. In any event, and given the Hearing Book, the contents of the departmental file neither assisted nor harmed the application and was not relied upon by the Tribunal.

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.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

8. The Tribunal has before it a substantial statement from Mr Reidford.[2] In that statement, Mr Reidford outlined how he arrived in Australia in October 2013 with his family who are the second, third and fourth named applicants. The third and fourth named applicants are now aged 15 and 12 respectively, meaning that the fourth named applicant has lived in Australia for most of his life.

   [2] Hearing Book/26-37.

9. Mr Reidford was employed at a small family crash repair business as a panel beater (ANZSCO 324111), which the Tribunal will decline to name as they were not a party to these proceedings. Mr Reidford was initially employed whilst on a different visa class,[3] although the relevant visa nomination and application were lodged on 13 April 2016. Mr Reidford seems mostly to have been happily employed despite some aspects of his employment that could have been healthier and safer.

   [3] ibid/52-54.

10. In May 2016, Mr Reidford’s employer suffered a downturn of business. A new workshop manager was employed and a significant deterioration in health and safety compliance occurred.[4] Mr Reidford became concerned about his working conditions and the solvency of his employer. By 25 January 2017, despite his extensive efforts to remain engaged with this employer, Mr Reidford’s relationship with his employer had broken down to the point where he resigned. However, on 31 January 2017 Mr Reidford commenced new employment elsewhere in South Australia as a panel beater. He remains employed as a panel beater by that company to this date. He is described by his new employer as “… a hardworking, high quality, reliable employee with outstanding time keeping”.[5] This is high praise indeed and the Tribunal accepts Mr Reidford’s evidence.

    [4] ibid/56-57, 106.

    [5] ibid/101.

11. The Tribunal received evidence from Ms Conroy, which augmented her previous correspondence to the Department. This correspondence was received as an outline of evidence for the purposes of paragraph [6.8] of the practice directions.

12. Ms Conroy is employed as a Management Accountant and is highly regarded by her employer.[6] Together with Mr Reidford, Ms Conroy is a homeowner.[7] The substance of Ms Conroy’s evidence is that she is deeply concerned for her family’s future. Indeed, Ms Conroy’s oral evidence was tempered by emotion. Of her children, Ms Conroy’s evidence is that: “They have so much they are looking forward to, plans for enjoying the school holidays, starting a new milestone in their lives in school, Christmas, my birthday our daughters birthday, planned holiday with our friends…”.[8] The Tribunal accepts Ms Conroy’s evidence and is satisfied of her concerns for her family, in particular for the lives of the third and fourth named applicants.

    [6] ibid/102.

    [7] ibid/103.

    [8] ibid/100.

13. Regarding the third and fourth named applicants, the Tribunal notes the complimentary reference from the Head of Middle School of Woodcroft College where they attend.[9] The “… exemplary attitudes and behaviours …” of these children are corroborated by the Principal of Craigburn Primary School.[10] They are also corroborated by a senior serving member of the South Australian Police.[11] Indeed, the Tribunal accepts this officer’s view that the applicants “… are a loving, devoted family who have many friends and are highly respected within the community. The Children have been in South Australia for the majority of their lives and have grown up knowing and loving the life South Australia has to offer”.

    [9] ibid/107.

    [10] ibid/108.

    [11] ibid/55.

    Does the ground for cancellation exist?

14. Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within two years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required two year period.

15. It is not in contest that, for the purposes of this application, that Mr Reidford’s employment was terminated within two years of commencement.

16. Mr Simmons has advanced an argument that Mr Reidford’s departure from his employment within 12 months of commencement amounts to constructive dismissal under s.386(1)(b) of the Fair Work Act 2009 (Cth). The Tribunal has some sympathy for this argument, but it is not clear that Mr Reidford was strictly “forced” from his employment in a manner that would enliven s.386(1)(b). In any event, a jurisdictional issue also arises with this argument as primary decisions on s.386(1)(b) of the Fair Work Act 2009 (Cth) should more properly be dealt with by bodies such as the Fair Work Commission. Nevertheless, constructive dismissal is not the test in this matter and indeed may prove to be a distraction. Rather the test under s.137Q(2)(b) of the Act is whether Mr Reidford satisfies the Tribunal that he has made a genuine effort to be engaged in his employment for two years. In this matter, given the short duration of that employment, the Tribunal is not so satisfied.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.137Q exists. As the power to cancel under s.137Q is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.

    Should the visa be cancelled?

18. There are no matters specified in the Act or Regulations that must be considered in relation to 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: Act - Visa cancellation instructions - Regional sponsored employment visas’.

19. The evidence before the Tribunal is clear that the best interests of the third and fourth applicants are served by their continued residence in Australia. Unequivocally, these children have made South Australia their home since 2013 and are thriving at school. Furthermore, the Tribunal has accepted Ms Conroy’s evidence of her concerns for the children. This indicates a wider degree of hardship to Mr Reidford and Ms Conroy if Mr Reidford’s visa is cancelled. This is especially so given the involvement of the family in the South Australian community, where they both also work and own their family home.

20. The Tribunal notes that Mr Reidford remains a panel beater and continues to reside in South Australia. He worked without issue for many years with his previous employer whilst on a different visa class, whilst his current employer regards him highly. These factors weigh heavily on the Tribunal’s deliberations.

21. This is not a matter where the Tribunal has any suspicion that Mr Reidford has tried to use a visa category to circumvent Australia’s immigration program. He has been candid with the Department.[12] There is no question as to his credibility before the Tribunal.

    [12] ibid/109-118.

22. Considering the circumstances, the Tribunal concludes that the visa should not be cancelled.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

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

    Andrew George

    
    

    Member