Somogyi (Migration)

[2020] AATA 4643

Somogyi (Migration) [2020] AATA 4643 (7 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Imre Attila Somogyi

CASE NUMBER:  2003230

HOME AFFAIRS REFERENCE(S):          BCC2019/3106696

MEMBER:Mr S Norman

DATE:7 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 07 October 2020 at 4:05pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ceased employment for more than 60 days – no explanation for cessation of employment four months into two year period – no new position nomination or work visa application made – economic conditions in home country and late claim of fear of harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, condition 8607

CASE
COT15 v MIBP (No 1) [2015] FCAFC 190

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 February 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act. 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 before the Tribunal on 1 October 2020 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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. That condition stated:

   (5) If the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.  

7. On 7 August 2018, the applicant had been granted a Subclass 482 Temporary Skill Shortage visa. On 11 January 2019, the Department received written notification from the sponsor, advising that the applicant had ceased employment with them effective 13 December 2018.

8. On 24 January 2020, the Department issued the applicant a Notice of Intention to Consider Cancellation (NOICC) of their visa. In their decision, the delegate noted the associated sponsor was Aurec Pty Ltd (the sponsor - nomination approved on 05 July 2018). The applicant had been nominated to work as a ICT Business Analyst (ANZSCO: 261111).

9. The applicant responded to the NOICC by email dated 3 February 2020. The applicant was recorded by the delegate as not disputing there were grounds to cancel his visa.

10. The delegate then noted that the occupation of ICT Business Analyst (ANZSCO: 261111) is not one specified in the relevant instrument referred to in paragraph 8607(3A), which would exempt the applicant from having to comply with the requirements of condition 8607(3)(a). Therefore, while the applicant continued to hold the Subclass 482 visa, he could only lawfully work in Australia for either the sponsor or an associated entity.

11. Further, in order for the applicant to be able to lawfully work for another sponsor in Australia while he held the visa, a prospective sponsor would need to lodge a new nomination application and the Department would have to approve this. However, the delegate noted there was no evidence of any new nomination in Department records and systems. There was no record the applicant had a new Temporary Business Entry or Temporary Skill Shortage nomination application approved in relation to any other sponsor.

12. At the time of the delegate’s decision, the delegate noted that neither the applicant nor his sponsor had advised the Department that the applicant had returned to work for the sponsor, or an associated entity of theirs, within 60 consecutive days of ceasing employment. The delegate continued that based on the information before them, the delegate was not satisfied the applicant had complied with subclause (3)(b) of condition 8607 which attached to his visa. That was because the delegate was satisfied the applicant had ceased employment with the sponsor for a period exceeding 60 consecutive days.

13. At hearing the applicant confirmed that he still did not dispute that he had breached a condition attached to his visa. In the circumstances, and based on the evidence, the Tribunal is satisfied the applicant breached condition 8607(5).

14. For the reasons set out above, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) of the Act, 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

15. 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’.

16. As noted by the delegate, the purpose for the applicant’s stay in Australia on the Temporary Skill Shortage (Labour Agreement) Subclass 482 visa, included that he was to work in Australia in a skilled occupation which could not be filled from within the Australian workforce. However, the applicant had ceased employment with his now former sponsor on 13 December 2018. Therefore, the purpose for which the applicant was granted his visa ended on 11 February 2019, being 60 consecutive days after he ceased employment with the (now former) sponsor.

17. When the gist of this was put to the applicant at hearing, the applicant told the Tribunal he had no comment. The applicant also told the Tribunal that he had not worked since ceasing his employment with his former sponsor on 13 December 2018; being around 21 months prior to the date of the Tribunal hearing. Therefore, the Tribunal is satisfied the purpose for the applicant’s stay in Australia on the Temporary Skill Shortage (Labour Agreement) Subclass 482 visa has ceased.

18. Next, regarding the extent of compliance with visa conditions, in his response to the NOICC, the applicant said he had always abided by Australian laws, and that he had resided in Australia since 2008 (principally on Student visa/s). Based on the findings herein, the Tribunal accepts the applicant had not complied with condition 8607(3)(b), which had attached to his Temporary Skill Shortage (Labour Agreement) visa. However, I have no material evidence the applicant had breached any other condition.

19. Be that as it may, in their decision the delegate noted the applicant had not explained how he had supported himself since ceasing his employment with his sponsor on 13 December 2018; and nor was he subject to a new nomination application or a work visa being lodged. At the time of the delegate’s decision, the applicant had resided in Australia for 14 months since ceasing his employment with his sponsor. At the time of the Tribunal decision, the applicant had resided in Australia for around 21 months since ceasing his employment. When discussed at hearing, the applicant again confirmed he had not worked since 13 December 2018. He also advised that he resided with friends and they (words to the effect) met all his living expenses.

20. Next, and regarding the degree of hardship that may be caused to the applicant or his family if his visa was cancelled (financial, psychological, emotional or other hardship), the delegate noted the applicant did not provide evidence of the degree of any hardship that may be caused to him or family.

21. At hearing, the (now 50-year-old) applicant claimed that he had no family in Australia, but that he had family members still residing in his country of citizenship (Hungary). The Tribunal notes however, that the applicant had resided in Australia since 2008, and that some limited hardship may be caused (ie social, financial, or emotional) if the applicant’s visa was cancelled and he had to return to his country of origin.

22. The applicant also said he had worked for a television station in Hungary as a video editor, and that since arriving in Australia, he had undergone English language courses, and undergone the material education that allowed him to find work as a ICT Business Analyst. The applicant also said that he was raised in a Communist society, but when put to him, he conceded that Hungary was no longer a Communist state.

23. The applicant also said (initially) he feared he may not obtain work in Hungary, and that the economy had been adversely impacted by COVID-19.  This is supported by country information considered:

    According to the GKI Economic Research Co, the annual growth rate in the Hungarian economy is about to slow down significantly in 2020, and after 5.1 percent in 2019 the GDP growth rate is forecasted at 2.7 percent. The analysis explains this forecast with worsening conditions in the world economy and the slowing inflow of EU transfers. The forecast was published in November 2019, just a month later the GKI raised its forecast from 2.7 to 3.2 percent. In the new analyses they add that the forced increase of wages is one of the main reasons of the weaker growth.[1]

    [1] Hungary economy briefing: The Hungarian Economy 2020, 9 March 2020, , accessed 1 October 2020.

24. However, the Tribunal understands the applicant subsequently conceded that should he return to Hungary, he could obtain work commensurate with his skills (including the new skills he acquired in Australia).

25. Next, and regarding the circumstances in which ground of cancellation arose, in his 3 February 2020 response to the NOICC, the applicant explained:

    I acknowledge receipt of your letter and I sincerely apologise for the circumstances surrounding my current visa and employment status. I would like an opportunity to explain.

    In December 2018 my employment with AUREC came to an end. I had hoped of restarting employment with the company again, and I expected a very short unemployment period.

    Sadly, despite considerable efforts, the position of employment no longer remained and so, I began searching for another job where my skills could be used.

    I knew that I required a new position with a company to remain in Australia, so I urgently searched for any suitable opportunity.

    Thankfully I found a company who wants to hire me and utilise my skills as an ICT Business Analyst. Currently I am waiting for the job offer letter. I was promised I would get it this week.

    Personally, I have lived in Australia since 2008. I have always abided by the laws, respected the rules, studied and worked hard, gained degrees, made wonderful friends, seen many amazing things, and I love Australia. I want to take any step necessary to stay and work in Australia.

26. In their decision (dated 12 February 2020), the delegate noted the applicant had not provided any corroborating evidence relating to the claimed new offer of employment; and that the applicant had also ceased his employment with his sponsor for 14 months. Further, that the applicant was made aware of the conditions attached to his visa at the time of grant and there was no evidence before the delegate that the applicant had contacted the Department in order to (ie) regularise his migration status.

27. When asked at hearing why the applicant had ceased his employment some four months after being granted the Subclass 482 visa, he said he did not know. When it was put to him that his sponsor was required to provide him full time employment for two years, he agreed this was correct. When pressed again, the applicant said he did not know why he ceased employment with his now former sponsor.  

28. Next, the Tribunal has no adverse evidence of the applicant’s behaviour (past or present) towards the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be impacted if the applicant’s visa is cancelled.

29. Next, if the applicant’s visa is cancelled, he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

30. The Tribunal also notes that if the applicant’s visa is cancelled, he would be subject to s.48 of the Act and would have limited options to apply for further visas in Australia.  However, and as noted by the delegate, cancellation of the visa under these grounds will not incur any penalty under PIC 4013 to prevent the applicant from applying from overseas for a new visa once he had established his eligibility for one. Therefore, if he does intend to return to Australia in the future, he does not need to retain the visa in order to do so, he can apply for a new visa in line with his new purpose for returning to Australia.

31. Regarding whether any international obligations would or may be breached if the applicant’s visa is cancelled, for the first time at the Tribunal hearing, the applicant said (words to the effect) that he had resided in Australia for over ten years, that he enjoyed the freedom that Australia provided, and this freedom may cause him problems should he return to the more oppressive society in Hungary. Next, and again for the first time, the applicant said that as he was a homosexual, he feared he would be harmed should he return to Hungary.

32. Amongst other things, the Tribunal understands that homosexuality is legal in Hungary, but that subject to the accepted facts of a case, problems may nonetheless arise. The Tribunal also has no evidence the applicant could be ‘excluded’ from some form of protection in Australia, should he warrant same. However, the Tribunal also notes the applicant may make an application for a Protection visa in order to consider any claimed international obligations - see e.g. COT15 v MIBP (No 1) [2015] FCAFC 190.

33. The Tribunal has accepted inter alia there was no further evidence of non-compliance, that the applicant would suffer some limited hardship should the visa be cancelled, and there was no evidence of any adverse behaviour of the applicant. However, at the time of the Tribunal decision, around 21 months had elapsed since the applicant ceased employment with his former sponsor and he had not worked since. Further, due to the adverse impact of the COVID-19 pandemic, the applicant did not expect to find work in Australia for some time; and the Tribunal accepts this to be plausible. That being said, given protection claims may be fully addressed in an alternate visa process, the Tribunal is satisfied the discretion to cancel the applicant’s Subclass 482 visa should be invoked.

34. Considering the circumstances as a whole, the Tribunal concludes the visa should be cancelled.

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Mr S Norman
    Member