Swellings (Migration)

[2022] AATA 922

Swellings (Migration) [2022] AATA 922 (24 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paul Swellings

REPRESENTATIVE:  Ms Shanthi Silva (MARN: 1682622)

CASE NUMBER:  2015721

HOME AFFAIRS REFERENCE(S):          BCC2020/1419298

MEMBER:Michael Cooke

DATE:24 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 24 January 2022 at 11:46am

CATCHWORDS
MIGRATION– cancellation – Temporary Business Entry (Class UC) visa – Subclass 457– sponsor made the applicant redundant due to the Covid-19 Pandemic – did not complied with condition 8107(3)(b) – applicant made genuine efforts to remain in Australia – significant emotional and financial hardship – visa was cancelled because of events beyond his control –– decision under review set aside

LEGISLATION
Migration Act 1958, s 116

CASES
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 October 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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 applicant breached condition 8107(3)(b). 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 was represented in relation to the review.

4. 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

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?

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

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 it is condition 8107(3)(b) attached to the applicant’s visa. This condition requires the period during which the visa holder has ceased employment to not to have exceeded 60 consecutive days.

7. The applicant provided the following reasons:

   ·The applicant acknowledged his most recently approved sponsor made him redundant due to the Covid-19 Pandemic.

8. In his responses to the NOICC, the applicant provided information summarised as follows:

   ·The applicant stated that since he was made redundant, he has been trying to find another sponsor and in August 2020 he had some interviews with prospective employers.

   ·The applicant requested the Department to grant him an extension of six to eight weeks in order to secure the transfer of his sponsorship.

   ·The applicant stated that if this extension were not granted, this would cause financial and emotional hardship as he lives with his partner and his partner’s son.

9. The Tribunal has received a comprehensive submission from the applicant as follows:

   a.The Review Applicant arrived in Australia on subclass 457 (Temporary Work) Skilled Visa, sponsored by NK Group Pty Ltd t/as Nobby Kitchens, 19 Ryde Road, Pymble NSW, in the nominated occupation ‘Cabinet Maker’ (ANZSCO 394111).

   b.The Review Applicant was employed by Nobby Kitchens from 04 January 2018 to 30 March 2020. (See Attachment ‘C’)

   c.The Review Applicant was advised in writing by letter dated 30 March 2020 by John Hall, Managing Director of Nobby Kitchens: “the ongoing COVID-19 pandemic has had a dramatic effect on all of the businesses in the economy and due to this situation” the Review Applicant’s position was made redundant due to the impact of the Covid-19 pandemic that is outside of the company’s control. The last day of work for The Applicant as advised in the above-named letter was 30 March 2020. (See Attachment ‘B’).

   d.In March 2020 in which the Applicant received his redundancy notification was also a serious time for NSW given the lock-down and serious restrictions to reduce the spread of Covid. In fact, all of 2020 was a tumultuous year economically for NSW and Australia and most businesses suffered either revenue impacts, staff reductions, or temporary holds on recruitment/new hires. As such, business was very cautious and reluctant to sponsor new employees.

   e.On 31 March, the day after The Applicant received the news that his position was made redundant and his employment at Nobby Kitchens terminated, The NSW Government imposed a “lock-down” on the people of NSW, with the aim of reducing the spread of Covid-19. This made it near impossible to secure a new sponsor within the 60 days, a condition of The Applicant’s 457 Visa. (See Attachment ‘D’ article by Mills Oakley describing government directions and lock down in NSW from March 2020).

   f.The economic impact of the Covid-19 pandemic greatly reduced the Applicant’s opportunities to secure a new sponsor within 60 days. Ordinarily, prior to the Covid-19 pandemic, it is likely that The Applicant would have been able to secure a new sponsor within the required timeframe. Furthermore, Cabinet Makers are on the medium-term list of occupations, demonstrating the demand for the profession and difficulty to obtain experienced and qualified Cabinet Makers in the local Australian labour market. However, it was the impact of the pandemic which frustrated the employment arrangement between the Applicant and his sponsor and subsequently, resulted in the termination of the Applicant’s employment. Through no fault of his own, The Applicant was left without employment from his sponsor who had committed to sponsor him up to November 2021.

   g.After the Applicant left the employment of Nobby Kitchens, The Applicant made every effort to apply for many roles advertised on Seek. The Applicant even replied to obscure advertisements placed on Gumtree and tried through his own efforts to make contact with furniture businesses to secure a sponsorship, but their response was much the same “we have little work at the moment” (see Attachment ‘J’) as a result of the impact of the pandemic on business and the poor economic state of NSW.

   h.Had there been no pandemic, it is highly likely that The Applicant would have had a comfortable opportunity to secure a new employer sponsor.

   i.In view of the Covid-19 pandemic, The Applicant would be grateful to regularise his migration status as soon as possible with his current place of work, Guru Projects Pty Ltd who are ready, willing, and able to sponsor. Guru Projects have a genuine need for The Applicant’s skill set that they cannot source with local Australian citizens or permanent residents. (Please see Statutory Declaration Dated 21January 2022 of David Robert Veksler, Director of Guru Projects Pty Limited).

   j.Despite this, The Applicant secured work with Guru Projects Pty Ltd on 15 October 2020 and has been with them to date. The company has confirmed their objective to sponsor The Applicant. The Applicant, as soon as he secured a role, has remained working for 14.5 months, aligned with the purpose of his original457 visa, to maintain employment as a Cabinet Maker, a profession on the medium-term skilled occupation list.

   k.We submit that the inability to complete working in the nominated occupation at the sponsor’s business, Nobby Kitchens, was beyond the control of the Review Applicant and The Applicant made every effort to secure another sponsor in the most difficult economic times in history albeit many months later in the year. He eventually secured work in early October2020 and has remained in work to date this is testament to an Applicant who is hard-working, committed and dedicated to his work and making a valuable contribution to NSW and business he works for.

   l.The Review Applicant made genuine efforts to remain in Australia. Employed in the same occupation with Guru Projects and undertaking the same work as he did at Nobby Kitchens (building custom made kitchens) as that reflected in the original nomination application.

10. The Tribunal has read the applicant’s submission and is sympathetic towards the issues he raises being, principally, the impact of COVID19 on his employment. He has seen significant disruption to his life by being laid off (unexpectedly) from his nominated position as result of this event. He also remained in contact with the Department regarding the matter and responded within time to Departmental correspondence. Nevertheless, the applicant did not comply with condition 8107(3)(b) attached to his visa. This condition requires the period during which the visa holder has ceased employment to not to have exceeded 60 consecutive days. The applicant, as can be seen from information made available to the Tribunal, (the delegate’s decision record) exceeded 60 consecutive days.

11. 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

12. 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’.

    Consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·the purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel to or remain in Australia.

13. The applicant was granted a Subclass 457 visa on 13 September 2017 to work in a nominated occupation for an approved sponsor (Knobby’s Kitchens). The Department was notified on 20 April 2020 that the applicant was going to cease employment with the sponsor effective 31 May 2020.

14. There is no evidence before the tribunal to suggest that the applicant’s original intention for travel to and stay in Australia was not for the purpose of working for his sponsor. However, the Tribunal notes that the applicant has not worked for an approved sponsor for over a year and two months nor has he as yet lodged a new nomination. He has indicated though that he has been working for an employer since 15 October 2020. He has been in the same trade since leaving his nominator and that employer now wishes to sponsor him for a Subclass 482 visa. Therefore, his purpose of stay in Australia is still aligned with the purpose of his visa. His proposes nominating employer is already an approved sponsor.

15. The Tribunal give this consideration minimal weight in favour of cancellation.

    ·the extent of compliance with visa conditions

16. The applicant did not comply with subclause (3)(b) of condition 8107 of his Temporary Work visa when he ceased employment, with the business sponsor who had nominated him for this visa, on 31 May 2020 and the period during which the applicant had ceased employment had exceeded 60 consecutive days. There is no information before the Tribunal which indicates that he has not complied with the other conditions attached to his visa.

17. The Tribunal gives this consideration some weight in favour of cancellation.

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

18. The applicant in his responses to the NOICC stated that if his visa were to be cancelled, it would cause some hardship to his partner and his partner’s son.

19. The Tribunal having reviewed his submission is satisfied that cancellation of the visa will cause significant emotional and financial hardship to the applicant and his family members. The applicant has according to his employer and potential sponsor ‘a strong skill-set and extensive experience building, updating and restoring furniture. It is difficult to find experienced Cabinet Makers with extensive experience fitting out hospitality venues. Such expertise is not readily available in the local labour market’. This statement indicates that cancellation of his visa could also occasion economic hardship not only to the applicant but also to the applicant’s employer and potential sponsor who has already been impacted by the economic effects of COVID19 on labour supply.

20. The Tribunal gives this consideration heavy weight against cancellation.

    ·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 applicant’s control

21. The circumstance which led to the grounds for cancellation was that the applicant’s employer laid him off (on 31 May 2020) due to the impact of the COVID19 and without having a new nomination approved in relation to an alternative sponsor within 60 consecutive days.

22. The Tribunal is satisfied from the additional information provided that the circumstances in which the ground for cancellation arose were entirely ‘beyond the applicant’s control’. Currently, the applicant has been offered sponsorship by his present employer who has indicated his willingness to sponsor the applicant and who has a current SBS approval.

23. The Tribunal gives this consideration maximum weight against cancellation.

    ·past and present behaviour of the applicant towards the Department

24. There is no evidence to suggest the applicant has been uncooperative with the Department or with departmental staff.

25. The Tribunal gives this consideration some weight against cancellation.

    ·whether there would be consequential cancellations under s 140

26. Departmental records indicate that Clare Goulding, born on 01 December 1983 and Aidan Matthew Goulding, born on 22 August 2010 are dependants of the applicant and as such their visas would, or may, be consequentially cancelled by operation of law under section 140 (1) of the Act.

27. The Tribunal gives this consideration significant weight against cancellation.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the applicant 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

28. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia.

29. The Tribunal gives this consideration significant weight against cancellation.

    ·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 (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

30. The circumstances of this case would not engage Australia’s international obligations and the cancellation of the visa would not lead to a breach of Australia non-refoulement obligations or to a breach of any other of Australia’s international obligations.

31. The Tribunal gives this consideration neutral weight against cancellation.

    ·if it’s a permanent visa, whether the applicant has strong family, business or other ties in Australia

32. Not relevant.

    ·any other relevant matters

33. The applicant’s representative has provided the Tribunal with a comprehensive submission concerning the circumstances of his loss of employment.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Michael Cooke
    Senior Member