Sargent (Migration)

[2023] AATA 2819

Sargent (Migration) [2023] AATA 2819 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ben David Sargent

REPRESENTATIVE:  Mr Desmond Anthony Ryan (MARN: 1796674)

CASE NUMBER:  2206218

HOME AFFAIRS REFERENCE(S):          BCC2021/2043034

MEMBER:Amanda Mendes Da Costa

DATE:22 August 2023

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 22 August 2023 at 10.08am

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – employment commenced within 90 days – COVID-19 travel restrictions into Western Australia – applicant attended a pre-employment training program – sponsor offered no formal notice of termination – relationship with an Australian citizen – decision under review set aside    

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 April 2022 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 1161)(b) on the basis that the applicant had not complied with a condition of the visa. 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. The applicant appeared (via telephone) before the Tribunal on 16 August 2023 to give evidence and present arguments.  Although the Tribunal initially offered the applicant a hearing via video, he indicated that he preferred a hearing by telephone and the Tribunal was prepared to accede to this request.

4. The applicant was represented in relation to the review with his representative also participating in the hearing.

5. The Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.  The Tribunal also explained that it would seek submissions from both the applicant and his representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

6. The applicant provided the Tribunal with the following documentation for the purpose of the review:

   ·Written submissions dated 6 August 2023.

   ·Copy payroll statement dated 24 March 2021.

7. 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

8. 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.

   Certificate issued by the delegate under section 375A of the Act.

9. The Department file contains a certificate issued under s375A of the Act and dated 30 May 2022[1].  The Tribunal informed the applicant about this certificate during the hearing and provided him with a copy of the document.  The Tribunal indicated to him that it had formed a preliminary view that the certificate is valid and binds the Tribunal but invited the applicant to comment on the certificate including its validity. 

   [1] The delegate states that the disclosure of information (other than to the Tribunal) contained in TRIM reference numbers of file number BCC2021/2043034 would be contrary to the public interest because the information would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

10. The applicant indicated that he did not wish to challenge the validity of the certificate.

11. The Tribunal considers that the certificate is valid and accordingly has not disclosed the information to which it refers to the applicant or his representative.

    Does the ground for cancellation exist?

12. 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 8607(4)(b) attached to the applicant’s visa. This condition requires that subject to subclause (6), if the visa holder was in Australia when the visa was granted, within 90 days, they must commence work within 90 days after the visa was granted.

13. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was CALEDONIA SA PTY LTD (the sponsor) whose nomination was approved on 7 June 2021.  The applicant’s subclass 482 visa was granted on 30 August 2021 whilst the applicant was in Australia.

14. On 28 September 2021 the sponsor advised the Department that the applicant had not commenced his employment with the company and would not be proceeding with his employment.

15. On 31 March 2022 the Department sent the applicant a written Notice of Intention to Consider Cancellation (NOICC) of the visa on the ground that he had not complied with condition 8607(4)(b) attached to his visa.  The Department advised him that any response by him should be provided (in writing) within five working days of being taken to have received the NOICC.

16. The Tribunal notes that the applicant did not respond to the NOICC and on 14 April 2022 the decision to cancel the visa was made.

    Applicant’s evidence at the hearing 

17. The applicant is a British national who arrived in Australia in September 2018 on a Student visa and was subsequently granted a Working Holiday visa.

18. The applicant successfully completed an apprenticeship in scaffolding and worked in that trade before coming to Australia.  He also has experience in various other trades in the building industry (including rendering) and undertake work on various building sites in Guernsey in the United Kingdom, where he was born and educated.

19. In 2018 the applicant travelled to Thailand with friends on an extended holiday.  Whilst in Thailand he decided to extend his holiday and travel to Australia.  Since arriving in Australia in September 2018 he has successfully completed a Diploma in Business and Management and obtained a High-Risk work permit and Construction Induction Card.  The latter qualifications have entitled him to work as a scaffolder in Victoria and for the past six months he has been employed as a scaffolder on commercial building sites.  He is currently working on a large building site in Tullamarine, Victoria. The applicant has obtained this employment though the CFMEU[2].  Prior to that he undertake various jobs on building sites, including working as a renderer on a popular home renovation program on television.

    [2] Construction Forestry Maritime Mining and Energy Union.

20. In early 2021 the applicant was informed about the sponsor and the possible availability of a job for the applicant with this company, working in the minefields of Western Australia.  The applicant applied for a position as a Scaffolder and was subsequently advised by the sponsor that before deciding to employ him, he would be required to attend a training course in Adelaide for two weeks.  The applicant travelled to Adelaide where he worked on a building site under the supervision of the sponsor’s employees.  He was paid a salary for this work[3] and after completing the two week trial period, he was advised by the sponsor that he had been assessed as suitable to work for it in Western Australia.  At this point he participated in a formal job interview, signed an employment agreement and undertook a drug and alcohol test.  He also provided the sponsor his Tax File Number and bank account details, into which his wages for the two weeks of work he had completed, was deposited.

    [3] The payroll statement relates to this employment.

21. The sponsor telephoned him when his Subclass 482 visa was granted (30 August 2021) when he was advised that due to Covid-19 restrictions in Western Australia, he could not commence his intended job in that state.  However, after discussing the matter further with him, the sponsor agreed to consider finding him a position in another state. 

22. The applicant waited to hear from the sponsor but was not contacted by it again.  Nor did it  send him any correspondence notifying him of the termination of his employment and that it had notified the Department that he had not commenced his employment.  Due to the Covid-19 lockdowns in existence in Victoria and other Australian states in 2021, the applicant considered that it might take some time for the sponsor to make suitable arrangements for him to take up a position interstate.  It was not possible for him to be employed by the sponsor in Victoria because the company does not operate in that state.

23. The applicant did not contact the sponsor again about his employment and acknowledged o the Tribunal that he could have done so.  When asked for an explanation for his failure to contact the sponsor between September 2021 and March 2022, the applicant said that “time got away from me” during the period of the Covid-19 lockdowns in Melbourne when there was a great deal of uncertainty about when members of the community could return to work

24. The applicant explained that when the NOICC was sent to him by the Department, he was away from home on holiday and did not have access to his emails.  This meant that he only received the NOICC on his return from his holiday and the time for responding to the Notice had elapsed.  He apologized to the Tribunal for not being more attentive to his emails at that time but explained that he was not aware that he was likely to receive correspondence from the Department requiring an urgent response.

25. The applicant is a single man with no dependent children.  For the past two years he has been involved in a de facto relationship with his partner Monique who is an Australian citizen.  They are currently living in rented accommodation and are saving for a deposit in order to purchase a home together.

26. The applicant described their relationship as a serious and committed one.  They are both in good health.

27. The applicant’s parents and sister continue to live in Guernsey.  If his visa is cancelled and he returns to the United Kingdom he would stay with his family until re-establishing himself in Guernsey and is likely to obtain work as a scaffolder with a friend who operates a business there.

28. The applicant would like to continue living in Australia on a permanent basis where he hopes to buy  house and have a family with his partner.  If the visa is not cancelled, he intends to make attempts to secure another sponsor or make an application for a Partner visa, sponsored by Monique.  He has already spoken to his partner about her sponsoring him and she has agreed to do this.

    Submissions

29. The applicant disputes the delegate’s finding that he did not commence employment with the sponsor and asserts that his employment with the business commenced in March 2021 when he attended a training program within 90 days of being granted the visa.  He further asserts that he was paid by the sponsor during this training period.

30. The applicant also disputes the sponsor’s claim that he did not wish to work for it and asserts that he wished to proceed with his employment on a fly-in fly-out (FIFO) basis but was unable to do so because of Covid-19 pandemic restrictions.   He also offered to work for the sponsor in states other than Western Australia and was awaiting a decision from the sponsor about this proposal when his visa was cancelled. 

31. The applicant assets that he was never formally advised by the sponsor that his employment with them had ceased.

32. It is noted that Condition 8607(5) of Schedule 8 to the Regulations provides that if the visa holder ceases employment, the period during which the visa holder cease employment must not exceed 60 consecutive days.

33. The applicant submits that as he was not advised of any termination of his employment by the sponsor, he is entitled to 60 days in which to secure alternative employment prior to grounds existing for the cancellation of his visa.

34. He further submits that in all the circumstances of his case, the Tribunal should find that there are no grounds on which warrant the Tribunal can properly make a finding that the applicant failed to comply with condition 8607(4)(b).  In the alternative, the Tribunal should exercise its discretion not to cancel the visa.

    Findings regarding the ground for cancellation

35. The Tribunal accepts that the applicant’s visa was granted on the basis of being sponsored for the nominated position of Scaffolder and that he intended to move to Perth to commence a position with the sponsor in Western Australia.

36. The Tribunal accepts that the applicant travelled to Adelaide in March 2021 where he worked on a construction site for the sponsor under the supervision of the sponsor’s employees and was paid a wage for this work.

37. The Tribunal further accepts that at the completion of his two weeks of ‘training’ the applicant participated in a formal job interview, signed an employment agreement, undertook drug and alcohol testing and provided the sponsor with his tax file number and bank account details.  His payment for the two weeks of work was deposited in this account.

38. The Tribunal finds that:

    ·Due to Covid-19 restrictions imposed by the Western Australian government, the applicant was unable to commence this position because he was prevented from travelling to Western Australia.

    ·After the visa was granted the sponsor advised the applicant that it would make attempts to find him a position as a Scaffolder in another state where he would be permitted to travel.

    ·On 28 September 2021 the sponsor advised the Department that the applicant had not commenced work with it and would not be proceeding with such employment.

    ·The sponsor did not advise the applicant of its advice to the Department that the applicant had not commenced his employment with the company and would not be commencing his employment.

    ·The sponsor did not communicate to the applicant its decision not to proceed with his employment.

39. The evidence before the Tribunal suggests that the applicant was employed for at least two weeks when he worked for the sponsor in Adelaide in early 2021.  The applicant submits that this employment has not ceased because he has not been given any formal notice of termination by the sponsor.  However, the Tribunal notes that there is no information in the Department’s file which indicates that the sponsor advised the Department that the applicant worked for it in Adelaide prior to the visa being granted.

40. The Tribunal prefers the evidence of the applicant in this respect which the Tribunal found to be clear and credible. 

41. Although the Tribunal accepts the applicant’s evidence regarding his work for the sponsor prior to the grant of the visa, it notes that condition 8607(4)(b) requires that the visa holder to commence work for the sponsor within 90 days of the visa being granted.  Based on the evidence before it (including the applicant’s evidence at the hearing and the submissions made on his behalf) the Tribunal finds that the applicant did not commence work with the sponsor after the visa was granted and therefore has not complied with condition 8607(4)(b).

42. 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

43. 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 applicant’s travel to and stay in Australia

44. The applicant’s subclass 482 visa was granted to him for the purpose of working for the sponsor in the occupation of Scaffolder (ANZSCO 821712).

45. The evidence before the Tribunal indicates that the applicant did not commence employment with the sponsor at any time after the visa was granted on 30 August 2021.  The purpose for which the visa was granted ended 90 days after the visa was granted to him. Therefore, the Tribunal considered that since 29 November 2021 the applicant did not and continues not to be satisfying the purpose of his travel to Australia.  However, the Tribunal accepts he is currently working in the nominated occupation of Scaffolder.

46. The Tribunal considers that this consideration supports the cancellation of the visa and gives this consideration some weight.

    The extent of the applicant’s compliance with visa conditions

47. The applicant’s subclass 482 visa has the following attached conditions:

    ·Condition 8501 – health; and

    ·Condition 8607 – approved work.

48. There is no evidence before the Tribunal which indicates that the applicant has not complied with condition 8501.

49. However, the applicant has not complied with condition 8607 by virtue of him not commencing work with the sponsor within 90 days of the grant of the visa, from 29 November 2021 to date.

50. The Tribunal finds that this consideration weighs in support of cancellation of the visa and gives this consideration some weight.

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

51. The Tribunal accepts that if the visa is cancelled, the applicant will return to Guernsey.  Although such a move is likely to cause the applicant financial difficulties before he obtains employment and re-establishes himself there, the Tribunal notes that he will have the support of his family and has a job opportunity in Guernsey in a friend’s business.

52. The Tribunal further accepts that if the applicant returns to Guernsey this will cause him and his partner considerable emotional distress if they separate.  Although the Tribunal considers that the applicant would have the opportunity to make a further visa application (including an application for a Partner visa) offshore, the Tribunal acknowledges that separation would have a significant impact on his relationship with Monique.

53. The Tribunal finds that this consideration weighs against cancellation of the visa and gives this consideration substantial weight.

    The circumstances in which the ground for cancellation arose

54. The Tribunal accepts that the applicant’s visa was granted on the basis of being sponsored for the nominated position of Scaffolder and that he intended to move to Perth to commence a position with the sponsor in Western Australia.

55. The Tribunal further accepts that the applicant travelled to Adelaide in early 2021 where he worked on a construction site for the sponsor under the supervision of the sponsor’s employees and was paid a wage for this work.

56. The Tribunal finds that:

    ·Due to Covid-19 pandemic restrictions imposed by the Western Australian government, the applicant was unable to commence this position because he was prevented from travelling to Western Australia.

    ·After the visa was granted the sponsor advised the applicant that it would make attempts to find him a position as a Scaffolder in another state where he would be permitted to travel.

    ·On 28 September 2021 the sponsor advised the Department that the applicant had not commenced work with it and would not be proceeding with such employment.

    ·The sponsor did not advise the applicant of its advice to the Department that the applicant had not commenced his employment with the company and would not be commencing his employment.

    ·The sponsor did not communicate to the applicant its decision not to proceed with his employment.

1. The Tribunal finds this consideration weighs against cancellation of the visa and gives this consideration some weight.

   The applicant’s past and present behaviour towards the Department

2. There is no evidence to suggest that the applicant did not comply with the conditions of the visas he held prior to the current visa.  These previous visas include two Working Holiday subclass 417 visas and a Student subclass 500 visa.

3. Although the applicant did not respond to the NOICC the Tribunal accepts his explanation for not doing so and finds that his failure to respond was unintentional.  It also accepts that he has complied with the conditions attached to his current Bridging E visa which permit him to engage in paid employment.

4. The Tribunal finds that this consideration weighs against cancellation of the visa and gives this consideration some weight.

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

5. The applicant is a single man with no children.  The Tribunal finds that the cancellation of his visa would not result in the consequential cancellation of any dependent visa holders.

6. Accordingly, the Tribunal does not give this consideration any weight, either in support of or against cancellation of the visa.

   The legal consequences of a decision to cancel the visa

7. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained.  There is no suggestion that he will be detained indefinitely because as a British citizen he will be able to return to the United Kingdom.The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future applications.

8. Section 48 of the Act prevents a non-citizen who held a visa which was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.

9. The Tribunal gives this consideration significant weight against cancellation of the visa.

   Australia’s international obligations

10. There is no evidence of, and the applicant does not claim, that Australia’s non-refoulement obligations or the best interests of a child would be breached as a result of the cancellation.

11. Accordingly, the Tribunal does not give this consideration any weight, either in support of or against cancellation of the visa.

    Any other relevant matters

12. The Tribunal finds that the applicant is a skilled and experienced Scaffolder who is qualified to work in this trade in both the United Kingdom and Australia.  He is currently employed in this trade on a full-time basis with the prospect of this work continuing in the foreseeable future.

13. The applicant accepts that his failure to commence work with the sponsor after the visa was granted is not due to any action on his part and was due to the effects of Covid-19 restrictions on his travel to Western Australia and the decision of the sponsor not to continue with his employment.

14. The Tribunal accepts that the applicant has formed a serious and permanent relationship with his partner Monique, who is an Australian citizen and they intend to purchase a house and have a family together.  Although the cancellation of the applicant’s visa and his return to the United Kingdom will not prevent this relationship continuing, the Tribunal is satisfied that it will cause them emotional distress and financial difficulties together with placing a significant strain on their relationship.

15. The Tribunal considers these considerations weigh against cancellation of the visa and gives these considerations significant weight.

16. Considering the circumstances as a whole and in particular, the circumstances in which the cancellation occurred, the applicant’s trade skills and current employment in the nominated occupation and his relationship with his partner, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Amanda Mendes Da Costa
    Member