Skidmore (Migration)

[2022] AATA 4921

Skidmore (Migration) [2022] AATA 4921 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Edward Skidmore

REPRESENTATIVE:  Mr Mitchell Simmons

CASE NUMBER:  2209399

HOME AFFAIRS REFERENCE(S):          BCC2021/2042873

MEMBER:Joanne Bakas

DATE:6 December 2022

PLACE OF DECISION:  Adelaide

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 06 December 2022 at 5:09pm

CATCHWORDS
MIGRATION – cancellation –Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant ceased employment exceeded 60 consecutive days – breached condition 8607 – decision to return to the UK was motivated by mental health concerns – an unprecedented global pandemic – some financial, psychological and emotional hardship – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 360
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 23 June 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 116(1)(b) on the basis that the Minister was satisfied that the applicant did not comply with a condition of their visa; in this instance condition 8607(5) attached to the applicant’s 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 Tribunal received an application for review on 28 June 2019. The applicant was represented in relation to the review by his registered migration agent.

4. Submissions and documents were provided by the applicant to support their application for review and the Tribunal has given careful consideration to them.

5. The Tribunal, after considering all the documentary evidence before it, was able to make a positive decision on the papers. The applicant had previously been invited to attend a hearing.  The hearing was cancelled and the applicant was informed.

6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   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.

   Does the ground for cancellation exist?

9. 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(5) attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 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.

10. It is not disputed by the applicant that he ceased employment with Tree Amigos Victoria Pty Ltd (Tree Amigos) located in Victoria on 20 August 2021 and that he did not have an approved nomination to work elsewhere in the next 60 day period. As such, it is also not in dispute that the applicant was in breach of condition 8607(5).

11. The applicant’s evidence and submissions included that on 16 March 2021, he was granted a Subclass 482 visa sponsored by Tree Amigos so as to allow his employment as an Arborist to continue.  He ceased that employment on 20 August 2021 and departed from Australia for the United Kingdom (UK) on 1 September 2021. He returned to Australia on 17 December 2021 and on 7 February 2022 he recommenced employment with Active Contracting Pty Ltd (Active Tree Services) in South Australia where he had previously worked under a subclass 482 visa.  He was under the impression that his employer had secured a transfer of his 482 visa nomination. He ceased his employment with Active Tree Services on 20 May 2022 and on 23 May 2022 he was offered full time employment as an Arborist with Mechanical Vegetation Solutions Pty Ltd (MVS) in South Australia and MVS commenced the process of transferring the nomination application. This was ultimately approved on 2 September 2022.

12. 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

13. 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 visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

14. The Tribunal is cognisant of the circumstances that the applicant was granted the visa for the purpose of being able to temporarily fill a skill shortage in a particular area and to work in Australia for an approved sponsor in a skilled occupation for which he was specifically nominated and which could not be filled from within the Australian workforce.

15. The Tribunal notes that the applicant first arrived in Australia on 24 November 2017 as a holder of a Working Holiday (subclass 417) visa for the purpose of undertaking an extended holiday in Australia and to work here to help fund the trip. On 14 June 2018, he was granted a Temporary Skill Shortage (Short Term) (subclass 482) visa for the purposes of undertaking employment in the nominated occupation – Arborist - (ANZSCO 362212) with the approved sponsor Active Tree Services. On 31 July 2019, the applicant was granted a Working Holiday (extension) (subclass 417) visa. On 16 March 2021, the applicant was granted a Temporary Skill Shortage (Short Term) (subclass 482) visa for the purposes of undertaking employment in the nominated occupation – Arborist - (ANZSCO 362212) with the approved sponsor Tree Amigos.

16. As detailed above, it is not in dispute that the applicant ceased employment with the nominated sponsor on 20 August 2021. I find the purpose for which the applicant was granted his most recent Temporary Skill Shortage visa was to work in the occupation of Arborist for Tree Amigos, and that purpose ceased to exist on 20 August 2021 when he ceased employment with his sponsor.

17. The applicant departed from Australia on 1 September 2021 and returned on 17 December 2021 and on 7 February 2022 he recommenced employment with Active Tree Services where he had previously worked under a subclass 482 visa. He ceased his employment with Active Tree Services on 20 May 2022 and on 23 May 2022 he was offered full time employment as an Arborist with MVS in South Australia and MVS commenced the process of transferring the nomination application.

18. It is not in dispute that the applicant ceased employment with the approved nominator (Tree Amigos). The Tribunal notes that a new sponsor nomination (by MVS) was lodged on 21 July 2022 and was approved on 2 September 2022 for a Temporary Skill Shortage subclass 482 visa – Short Term in favour of the applicant as the nominee.

19. The Tribunal has considered the applicant’s evidence about his employment with MVS in South Australia. The applicant has provided documentary evidence that he has full time employment in his original profession as an Arborist with MVS. Moreover, this employer lodged a nomination in relation to the applicant as the nominee and this nomination was approved on 2 September 2022.

20. Under these circumstances, the Tribunal considered this employment to be a favourable circumstance in the assessment of whether or not the applicant’s visa should be cancelled.

21. The Tribunal accepts the applicant’s submissions in regard to this discretionary factor and finds that the circumstances as detailed above, weigh in favour of not cancelling the visa.

    The extent of compliance with visa conditions and past and present behaviour of the visa holder towards the department

22. The delegate’s position in regard to this discretionary factor includes that the applicant did not comply with condition 8607(5) as detailed above. In addition, he worked for an employer that was not the approved business sponsor (when he returned to work with Active Tree Services) and without an approved nomination in place.

23. The Tribunal understands from the applicant’s submission that his decision to return to the UK was motivated by mental health concerns and a significant period of COVID-19 forced separation from his family and that upon his return to Australia, his mental health would be best served by relocating to Adelaide, SA, where he had previously lived and where he had an offer of employment with Active Tree Services who agreed to take over his nomination. The applicant’s position includes that he was under the impression that his employer had secured a transfer of his visa nomination.

24. Further the applicant’s submissions include that he was under the impression that the requirement not to cease employment for longer than 60 days was only enlivened when he was onshore and he had thought his nomination had been transferred within 60 days of returning to Australia.

25. He submits that his visa should not be cancelled as his non-compliance was an innocent mistake and was caused by mental pressures that were the result of an unprecedented global pandemic hat has been recognised as causing widespread problems of this type. He has always tried to do the right thing with regards to his visa and would never have intentionally breached the law.

26. There is otherwise no evidence of a lack of co-operation with the department and once the applicant was apprised of the issues, the Tribunal accepts that the applicant acted to correct the matter as best he could. Further, the applicant now has an approval of the 482 nomination transfer application by MVS but continues to work in accordance with his Bridging E (class WE) Bridging E (General) (subclass 050) visa which was granted on 29 June 2022 and again on 5 July 2022 with full and unrestricted work rights which enabled him to continue to work with MVS while awaiting the outcome of this cancellation review.

27. On balance, the Tribunal gives this consideration some weight in favour of not cancelling the visa.

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

28. The applicant’s written submissions include that he is in a de facto relationship with Ms Delight Wambura who is a Kenyan national and has resided in Australia since 2017 initially as a student visa holder and that she currently holds a provisional 408 visa in the ‘Australian Government Endorsed Events / COVID 19’ Stream that is valid until 28 October 2023. Due to her studies and her occupation as an Early Childhood (Pre-primary School) Teacher (ANZSCO code 241111) which appears on the Medium and Long-term Strategic Skills List, she intends to apply for a subclass 190 permanent skilled visa as early as April 2023.

29. The applicant contends that if his visa cancellation is set aside, he will be eligible to be included in that application as a member of the family unit while he remains in Australia. However, if his visa cancellation is affirmed, he will be prevented from lodging any onshore application for a 190 visa.

30. This means that, in practical terms, the affirming of the cancellation decision will mean either that the couple physically separated for a period of up to 12 months (based on current processing time) or Ms Wambura abandoning her Skilled visa pathway in Australia due to being compelled to depart Australia to stay with Mr Skidmore.

31. Further, as the applicant is a UK national and Ms Wambura is a Kenyan national, Australia is their shared home and if the applicant’s visa is cancelled, he and his partner will be faced with either an indefinite separation or trying to find a third country where they can both reside.

32. The Tribunal accepts that the applicant would suffer some financial, psychological and emotional hardship if the visa is cancelled given his circumstances and the Tribunal places some weight in the applicant’s favour on the hardship that may be caused by cancellation of the visa.

    Circumstances in which ground of cancellation arose

33. The ground for cancellation arose because the applicant ceased employment with the sponsor from 20 August 2021 and he failed to secure an approved nomination within 60 consecutive days from the cessation of employment date.

34. The Tribunal notes that the applicant’s position is that he returned to the UK on 1 September 2021 due to mental health issues and that he returned to Australia on 17 December 2021. However, he did not commence working again 7 February 2022 with Active Tree Services and this employer was not the approved sponsor at the time.  

35. Even though the applicant’s current employer (MVS) was recently approved as a sponsor for a subclass 482 visa with the applicant as nominee, the cancellation arose because the applicant left his sponsored employer and did not work for at least 60 days.

36. The Tribunal considers the circumstances in which the grounds for cancellation arose were not entirely outside the applicant’s control. Weighing up the information before it, the Tribunal gives this consideration a little weight in favour of cancelling the visa.

    Whether there would be consequential cancellations under s.140

37. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s.140 of the Act. As such, this is not a relevant consideration to this case.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

38. In circumstances where the visa is cancelled, the applicant will no longer have suitable visa status to allow them to remain in Australia. He will thus become an unlawful non-citizen and may be liable for detention under s.189 of the Act and removal under s.198 of the Act.

39. The applicant would also be subject to s.48 of the Act which would limit the potential to lodge further visa applications onshore in Australia.

40. As such, the Tribunal gives this consideration a little weight against cancelling the visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

41. The Tribunal finds no information before it to indicate that visa cancellation would impact Australia's international obligations or would be in breach of Australia's non-refoulement obligations.

42. The Tribunal therefore attributes little weight to these considerations in deciding whether to exercise the discretion to cancel the visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

43. As the visa subject to cancellation is not a permanent visa, this is not a relevant consideration to this case

    Any other relevant matters

44. The applicant also raised that his employment as an Arborist is an occupation that is part of the skilled labour shortage crisis in Australia, as detailed in the September 2022 report of the National Skills Commission.

45. In addition, the applicant submitted that should the visa cancellation be set aside, he will be permitted to continue working for MVS (for whom he has already been working for five months) until the expiry of his 482 visa in March 2023 and that he has various options to remain employed with MVS after that date.

46. MVS also provided a letter of support stating that the business now substantially relies on the applicant’s significant experience and skill in the roles and that there is no reasonable prospect of replacing him in the foreseeable future and so his removal would cause significant hardship to the business.

47. The Tribunal gives this consideration to other relevant matters a little weight against cancelling the visa.

48. In considering the circumstances as a whole, the Tribunal is satisfied, on balance, that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled.

    decision

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

    Joanne Bakas
    Member