Strydom (Migration)

[2021] AATA 4399

Strydom (Migration) [2021] AATA 4399 (10 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andre Riaan Strydom

CASE NUMBER:  2100990

HOME AFFAIRS REFERENCE(S):          BCC2020/1681699

MEMBER:Noelle Hossen

DATE:10 November 2021

PLACE OF DECISION:  Perth

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

Statement made on 10 November 2021 at 3:40pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ceased employment for more than 60 days – employment terminated because of effects of COVID-19 – second employer’s nomination application refused – other work while on bridging visa – letter of offer from third employer but no evidence of nomination or visa applications – discretion to cancel visa – permanent resident children and new relationship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b), (3)
Migration Regulations 1994 (Cth), Schedule 8, condition 8607(5)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 January 2021 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant failed to comply with visa condition8607(5) of his subclass 482 visa. The visa condition requires that if the applicant ceases employment, the period of unemployment must not exceed 60 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.

3. The applicant appeared before the Tribunal on the 14 October 2021 to give evidence and present arguments in person. The applicant was not represented at the hearing.

4. The applicant was assisted at the hearing by an interpreter in the AFRIKAANS language.

5. The Tribunal advised the applicant that he should alert the Tribunal if he did not understand the interpreter. The applicant did have a reasonable command of the English language and did not alert the Tribunal with any difficulties during the hearing.

6. The applicant was given extra time to supply further evidence after the hearing. He agreed to 7 days but sought an extension of time and was granted until the 28 October 2021 to provide further evidence.

7. 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

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.

9. If satisfied that the grounds for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all of the relevant circumstances which may include matters of government policy.

   Notification procedures

10. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the Visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled. In addition, a visa may not be cancelled before the Visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

11. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the Visa holder must be invited to show that the ground for cancellation does not exist, or if it does that there is a reason why the Visa  should not be cancelled this does not place an onus on the Visa holder to rebut the possible ground of cancellation identified.

12. On the 14^th October 2020 the Department sent the applicant a notice of intention to consider cancellation (“the notice”) noting that departmental records indicated that he had ceased working for the employer effective from 17^th of April 2020. As a result, the department informed the applicant in the relevant notice that his subclass 482 Visa might be cancelled under subsection 116(1)(b) of the Act because he may have breached condition 8607(5). The notice invited the applicant to comment on why his Visa should not be cancelled, and he responded to this invitation on 21 October 2020.

13. Accordingly, the Tribunal finds that the applicant was given notice of the Department’s intention to consider cancellation of his subclass 482 Visa is required under the legislation.

    Does the ground for cancellation exist?

    s.116(1)(b) - non-compliance with conditions

14. 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 visa would have expired on the 26 January 2021.

15. Departmental records indicate that the applicant ceased work with Hudson Meats Company PTY LTD on 17 April 2020. The reason given by the Applicant to the Tribunal for the cessation of his employment was that his employment was terminated by the employer. He stated in his submissions in a letter addressed to the Tribunal dated the 27 January 2021 that Hudson Meats Pty Ltd advised him that his services were no longer required due to the effects of COVID 19.He stated as follows: “I did not cease employment as stated in the Record of Decision as attached to the Cancellation letter nor did I resign or leave the employment of Hudson out of my own accord.”

16. He indicated at the hearing before the Department that he had secured employment with PROPLAN MEATS PTY LTD trading as MEATS W.A. His employment with MEATS W.A. is conditional to the approval of a standard business sponsorship that was lodged on 23 June 2020 and approved on the 10^th August 2020. His employment was conditional to the approval of a temporary skill shortage visa that was applied for on 25 June 2020.

17. Departmental records indicate that the application for approval of a subclass 482 nomination by PROPLAN MEATS PTY LTD trading as MEATS W.A. was refused on the 12 January 2021.

18. The visa holders Visa was granted on 26 January 2019 subject to condition 8607(5) which states that if the Visa holder ceases employment the period during which they cease employment must not exceed 60 consecutive days.

19. The applicant did not work for an approved sponsor since the 17 April 2020 and therefore grounds for cancellation do exist.

20. 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

21. 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:

22. At the hearing the applicant indicated that he initially arrived in Australia as a tourist in 2008. He had a 457 visa for 4 years in 2017 and then was granted Shortage Skills visa 482 for 2 years after he had returned to South Africa. He said that he was employed with Hudson Meats in Sydney as a butcher when he returned to Australia on a subclass 482 Visa.

23. After his employment ceased in April 2020, and his application was rejected by the Department he was able to obtain a Bridging Visa E but did not work in his usual occupation. He said that he was now working on a mine site as a cleaner as he was looking to make money whilst he waited for the AAT process to take place .He provided a letter from his employer dated the 22 October 2021 that he has been employed as a cleaner since 30 June 2021.

24. He is working for Northern Rise as a utility worker. He says that as he is a FIFO worker, he resides at a Backpackers Hostel. He says that he earns about $2079 per fortnight.

25. He was asked by the Tribunal why he did not work with PROPLAN MEATS Pty Ltd trading as MEATS WA as they had made an application to sponsor him. He was asked whether they still wish to employ him. He responded that he did not know. He said he would find out and the Tribunal gave him extra time for him to provide further evidence after the hearing.

26. The Tribunal did receive some evidence from the applicant after the hearing, namely a letter from another employer known as Boatshed dated the 28 October 2021 that they would provide the applicant with a full-time position and full sponsorship. There was no evidence to support the fact that the applicant had lodged an application for a new nomination or sponsor and had an application pending before the Department under the Subclass 482 scheme.

27. Accordingly given the fact that his employment with Hudson Meats ceased in April 2020, the Tribunal finds that the purpose for the grant of the Subclass 482 Visa to the applicant no longer exists.

28. The applicant did outline a desire to remain living in Australia, but he did not have a compelling need to do so other than to work as a cleaner on a mine site at the time of the hearing and the Tribunal finds that this factor does not weigh against exercising the discretion to cancel.

    The extent of compliance with visa conditions and the visa holder’s past and present behaviour towards the Department:

29. The applicant gave evidence that he had always complied with previous visa conditions. There is no evidence to suggest that the applicant has a history of difficulties, or lack of cooperation with the Department.

30. However, his nomination with the other employer PROPLAN MEATS trading as MEATS WA was refused on the 12 January 2021. Since that time the applicant has not worked in his occupation. He did not take up the offer of employment and did not seek a review of the Department’s Decision to refuse the nomination. He provided scant evidence in the form of a screenshot after the hearing, with a statutory declaration from himself, to suggest that the migration agent who dealt with his case regarding the sponsorship application was not registered.

31. The requirement to maintain employment with an approved sponsor was not adhered to by the applicant. The Tribunal places a lot of weight on those facts against the applicant’s case.

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

32. The applicant stated that he would like to remain in Australia and said that the lifestyle is difficult in South Africa. He said that he did not own a home in South Africa. He does not have any dependents in South Africa.

33. His mother has passed away and he has a father and 2 brothers who reside in South Africa.

34. He said he sold all his belongings when he came to Australia.

35. He said that his ex-wife still lives in South Africa, but all her children live in Australia. They initially came here on a 457 visa and were granted permanent residency. Some of them reside in Sydney but he does have one stepson in Western Australia.

36. He said that he is in a relationship in Australia with a lady that he met 4 to 5 months ago. They do not live together as he lives in the Back packers Hostel and she has a 1-bedroom apartment. She works as a caregiver. He says that he has saved some money and wishes to plan his future in Australia with her. The Tribunal has taken those facts into consideration but there is no evidence before the Tribunal from his friend regarding the status of the relationship.

37. He said that he has a few friends who he met on the mine site. He says that if his visa is cancelled, he would lose everything.

38. He said when he was previously working in Sydney on a subclass 457 visa for 4 years in 2017, and the company that he worked for went into liquidation and he could not find work, so he returned to South Africa and he lived with his parents. He then applied for a Subclass 482 Visa and returned to Sydney and was employed by Hudson Meats.

39. The applicant confirmed that he knew that the visa was for a temporary period. If he goes back to South Africa, he would be able to secure accommodation as he previously did so. He admitted that he had saved money whilst working on the mine site and has some means to relocate.

40. The Tribunal does take into consideration that the applicant may face some hardship when he returns to South Africa and with respect to his present relationship.

41. The applicant held a temporary visa with no guarantee that he could remain in Australia on the expiration of the visa.

42. Those factors do weigh against exercising the discretion to cancel the visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control:

43. The policy suggests that the Tribunal should consider whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. The applicant was not in control of the circumstances of his termination as it arose as a result of the impact of the COVID pandemic.

44. The Tribunal does take those facts into consideration. However, the applicant’s noncompliance with condition 8107 of his visa is substantial, in the sense that at the time of the decision of the Department, he was not employed by a sponsoring employer for more than 8 months. He has continued to be not employed by a sponsor right up to the review hearing and did not have an application for a sponsor pending at the date of the review hearing. The Tribunal does consider that this weighs in favour of exercising the discretion to cancel the visa.

    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:

45. The Tribunal acknowledges that upon the cancellation of his visa, the applicant would become an unlawful non-citizen and be liable to be detained under section 189 and liable for removal under section 198 if he does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of his visa.

46. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of section 116.

47. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new Visa from overseas in the future.

    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:

48. In considering whether to exercise its discretion to cancel the applicant’s Visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to article 3 of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

49. There is nothing in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Therefore, the Tribunal is satisfied there is little in these matters to weigh against exercising the discretion to cancel.

50. Based on the evidence before it and taking into account all of the relevant circumstances on balance the Tribunal finds that the reasons for exercising the discretion not to cancel the applicant’s subclass 482 Visa do not outweigh the reasons to cancel the visa.

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

    DECISION

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

    Noelle Hossen
    Member