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

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.
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.
The applicant appeared before the Tribunal on 1 October 2020 to give evidence and present arguments.
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
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?
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Somogyi (Migration)

Details

AGLC: Somogyi (Migration) [2020] AATA 4643
Case: [2020] AATA 4643
Decision Date: 7 October 2020

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the applicant's Subclass 482 Temporary Skill Shortage visa. The applicant had been granted the visa on 7 August 2018, with a condition that if employment ceased, the cessation period must not exceed 60 consecutive days. The applicant's sponsor notified the Department on 11 January 2019 that the applicant had ceased employment on 13 December 2018. A Notice of Intention to Consider Cancellation was issued on 24 January 2020, and the applicant responded on 3 February 2020. The Tribunal, constituted by Mr S Norman, was required to determine whether the grounds for cancellation existed and, if so, whether to exercise discretion to cancel the visa.

The primary legal issue was whether the applicant had complied with condition 8607(5) of his visa, which stipulated that he must not cease employment for more than 60 consecutive days. The Tribunal also had to consider whether, having found a ground for cancellation, the visa should be cancelled, taking into account all relevant circumstances, including government policy and any hardship to the applicant. The applicant's nominated occupation was ICT Business Analyst, and the visa conditions required him to work for his sponsor or an associated entity, or have a new nomination application approved by the Department if he intended to work for a different sponsor.

The Tribunal found that the applicant had ceased employment with his sponsor on 13 December 2018 and had not returned to work for the sponsor or an associated entity within the 60-day period. Furthermore, there was no evidence that a new nomination application had been lodged or approved, meaning the applicant could not lawfully work for another sponsor in Australia while holding the visa. The applicant confirmed he had not worked since ceasing employment, which was approximately 21 months prior to the Tribunal hearing, and that his living expenses were met by friends. The Tribunal concluded that the purpose for which the visa was granted had ceased and that the applicant had not complied with condition 8607(5).

Having affirmed that a ground for cancellation existed under section 116(1)(b) of the Migration Act 1958 (Cth), the Tribunal proceeded to consider the exercise of discretion. It noted that the applicant had not provided evidence of hardship if the visa were cancelled. Considering the prolonged period of unemployment, the cessation of the visa's purpose, and the non-compliance with visa conditions, the Tribunal affirmed the decision to cancel the applicant's Subclass 482 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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? 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. 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. 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). 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. 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. 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. 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.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes the visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa. Mr S Norman Member

Ratio Decidendi

Legal Principle Established

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 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’. 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. 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. 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. 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. 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.