Tello Bernabeu (Migration) - [2021] AATA 4654

Tello Bernabeu (Migration) [2021] AATA 4654 (29 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rafael Enrique Tello Bernabeu
CASE NUMBER:  2108876
HOME AFFAIRS REFERENCE(S):          BCC2021/490646
MEMBER:Antonio Dronjic
DATE:29 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 – Temporary Skill Shortage visa.

Statement made on 29 October 2021 at 10:45am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant has not complied with condition 8607 – applicant ceased employment – new business had not sponsored or nominated applicant for a temporary visa – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 348,
Migration Regulations 1994, Schedule 2
CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 July 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).
The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant breached condition 8607(5) of Schedule 8 to the Migration Regulations 1994 (the Regulations), as the period during which the applicant ceased employment exceeded 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.
Background to the cancellation of the applicant’s visa
The decision record of 7 July 2021 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:
·On 12 July 2019, the applicant was granted a Subclass 482 visa, to remain valid until 12 July 2023.
·The standard business sponsor (SBS) who most recently nominated the applicant to work as an electrician was Chit Chat Communications Pty Ltd (the sponsor).
·On 8 February 2021, the applicant ceased his employment with the sponsoring business.
·A notice of intention to consider cancellation (NOICC) was issued on 28 May 2021.
·On 4 June 2021, the applicant responded to the NOICC. He stated his holiday was due to end in April 2021 and that the agreement with the sponsor was that the business will notify the Department of cessation of employment after he completes his annual leave.
·On 7 July 2021, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa.
The applicant applied to the Tribunal on 9 July 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 12 July 2021, the Tribunal acknowledged the receipt of the review application and invited the applicant to provide material or written arguments that he intends to rely upon. He has failed to do so.
On 20 September 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a video hearing scheduled for 28 October 2021. With the same letter the Tribunal invited the applicant to provide all documents he intends to rely on to support his case by 21 October 2021. He did not provide documentary evidence or submissions prior to the hearing.
The applicant appeared before the Tribunal on 28 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Ms Mary-Ann Kosmas.
The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing.
The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s 116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8607, to which his visa was subject, prescribes in 8607(5) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.
The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
The applicant is a Spanish and Colombian citizen. He holds a Spanish passport. He claims in his evidence that on 11 September 2021, he married Ms Kosmas, an Australian citizen. He further claims that their relationship commenced three years ago and that they have been living together for the past 13 months. He stated that he did not apply for a spouse visa. No marriage certificate or other documentary evidence of their relationship was provided to the Tribunal.
The applicant’s sister is currently living in Denmark and his parents in Spain. His second cousin lives in Australia. He claims in his evidence that he owns a property in Colombia. He gave evidence that he completed a bachelor’s degree in business administration in Spain and that, prior to arriving in Australia in April 2013 as a holder of a visitor’s visa, he worked in Spain as a traffic controller.
By 2015, he completed a Diploma and an Advanced Diploma in Marketing in Australia. He commenced employment at the sponsoring business in 2013 as a part-time employee. He was granted a Subclass 482 visa on 12 July 2019 and immediately after commenced full-time employment at Chit Chat Communications Pty Ltd as an electrician.
He claims that he ceased employment at Chit Chat Communications Pty Ltd in March 2021 and not in February 2021 as stated in the primary decision record. He claims that he was paid cash in hand for his annual leave that he took in March 2021. When asked, he stated that he cannot provide documentary evidence in support of this claim. He further stated that his former employer (Mr Elie Barel) had significant medical problems at the time.
The applicant gave evidence that he registered his own Australian Business Number (ABN) in 2013. He had been working under his ABN until he commenced full-time employment at the sponsoring business. He stated that in July 2021, he commenced working for a business trading under the name of Bondi Lightning. He was working as a subcontractor using his own ABN. This business did not sponsor or nominate him for a temporary visa.
The applicant gave evidence that last week he commenced full-time employment at Craig Electricians. He then stated that he was given a two-week trial and if his new employer is satisfied with his performance, he will be offered an employment contract.
The applicant confirmed in his evidence that this business had not sponsored or nominated him for a temporary visa as of the day of the Tribunal’s hearing. He added that the business may be willing to sponsor and nominate him for a temporary visa if he is successful with this review application.
The Tribunal noted that the applicant did not provide any documentary evidence in support of his claims that he worked at Bondi Lightning or Craig Electricians. The Tribunal observed that the prospective employer was not prevented from applying for sponsorship and nomination approval regardless of the outcome of this review application.
The Tribunal enquired if he has lodged an application for any other visa in Australia. Initially the applicant stated that he had not. He then remembered that he lodged a student visa application in June 2021 in order to obtain a licence for his nominated occupation of electrician. He stated that he did not complete this course as he suffered personal injury in November 2020 from a work-related accident. He further stated that he started another course for an apprenticeship but could not complete it as his bridging visa E is subject to no study condition. He claims that he is not aware if the Department has made a decision on his student visa application.
The Tribunal again pointed out that, despite inviting the applicant on two occasions to provide documentary evidence that he intends to rely on in this review application, the applicant failed to do so.
The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached condition 8607 that was imposed on his Subclass 482 visa, as the period during which he ceased employment exceeded 60 consecutive days, and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
The Tribunal indicated that it would take into consideration the evidence given at the hearing. It asked the applicant if there was anything that he wanted to raise with the Tribunal.
The applicant stated that he was unable to find a new job within 60 days because of the COVID-19 pandemic. He further stated that his wife is an Australian citizen and that she is not able to travel overseas until November 2022 as she was declared bankrupt. He needs to work to provide financial support to his wife. Finally, he reiterated that his new employer is willing to sponsor and nominate him for a temporary visa.
When asked by the Tribunal, the applicant confirmed that he is not a licensed electrician. The Tribunal noted that in his evidence the applicant stated that he commenced employment last week, that he is still in a two-week probationary period and has not signed an employment agreement. The Tribunal observed that the applicant did not provide documentary evidence concerning his new employment or documentary evidence of the employer’s willingness to sponsor and nominate him for a temporary visa.
In her evidence, Ms Kosmas stated that she is employed on a part-time basis at Chit Chat Communications Pty Ltd (the same business that initially sponsored the applicant). She is also receiving carer payment from Centrelink as she cares for her mother. She and the applicant live in public housing accommodation. She gave evidence that the owner of Chit Chat Communications Pty Ltd has dementia.
She gave evidence that the applicant financially supports her and if he is required to leave Australia, she will suffer financial hardship.
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 or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8607 is attached to the applicant’s visa. The condition in 8607(5) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 60 consecutive days.
Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 8 February 2021.
The Tribunal notes that, according to the primary decision record provided by the applicant with his review application, the Department received written notification from the sponsor advising the applicant ceased employment on 8 February 2021. It was further stated that in association with his student visa application, the applicant lodged a Form 1023 subsequent to his NOICC response dated 28 June 2021 stating that he ceased employment with the sponsor in February 2021.
Based on the evidence before it, the Tribunal finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8607(5).
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 power to cancel the visa should be exercised.
Consideration of discretion
There are no matters specified in the Act or the 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 Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634.
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].
Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.
The purpose of the visa holder’s travel to and stay in Australia
The Subclass 482 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as an electrician on a temporary basis at Chit Chat Communications Pty Ltd. The applicant ceased his employment at the sponsoring business in February 2021.
The applicant decided to remain in Australia as a holder of a bridging visa E. He claims that, during the past week, he managed to find new employment with Craig Electricians. No work reference letter or employment offer from the applicant’s new employer was submitted to the Tribunal. He gave evidence that he will have to undertake two weeks of probationary work before he is offered employment. The applicant’s claim that his new employer is willing to sponsor and nominate him for a temporary visa is not substantiated with any documentary evidence. The Tribunal notes that the applicant stated in his evidence that he is not a licensed electrician.
As observed at the hearing, the prospective employer was not prevented from applying for sponsorship and nomination approval regardless of the outcome of this review application.
Based on the evidence before it, including the applicant’s oral evidence, the Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian business which is an approved standard business sponsor and which has successfully nominated the applicant for a position within the business.
The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 482 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists. The Tribunal gives significant weight to this consideration.
The extent of compliance with visa conditions
The ground for cancellation arose when the applicant ceased working with his sponsoring employer in February 2021. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that nominated him for the position of an electrician within 60 days. This was contained in a condition of his visa, which stated if the employment ceases it ‘must not exceed 60 consecutive days’.
The Tribunal gives little weight to the applicant’s claims that he was unable to find new employment because of the COVID-19 pandemic and personal injury suffered in November 2020. No evidence that would substantiate these claims was presented to the Tribunal. In any case, according to the applicant’s evidence, the claimed personal injury (for which the applicant did not provide supporting medical evidence) occurred in November 2020, three months prior to cessation of the applicant’s employment.
The Tribunal notes that the Department did not proceed with the visa cancellation until 7 July 2021. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with an alternative business sponsor who successfully nominated the applicant for the position within its business.
The Tribunal finds that the applicant’s failure to commence employment with a new business that successfully nominated the applicant to work as an electrician in the more than eight months since the original cessation of employment represents a significant breach of condition 8607. The Tribunal gives significant weight to this consideration.
Degree of hardship that may be caused to the applicant
In his evidence, the applicant stated that his wife is an Australian citizen and that she is not able to travel overseas until November 2022 because she was declared bankrupt. The applicant further stated that he must continue to work in Australia to provide financial support to his wife. Finally, he reiterated that his new employer is willing to sponsor and nominate him for a temporary visa.
The Tribunal gives limited weight to this evidence as the applicant did not provide documentary evidence to substantiate those claims. The Tribunal accepts that the applicant and his wife may face some financial hardship because of the cancellation decision. The Tribunal further accepts that the applicant and his spouse may suffer some emotional hardship because of the visa cancellation.
The Tribunal has taken into consideration the applicant’s evidence that he completed a degree in Spain and that he owns property in Colombia. The Tribunal is satisfied that the applicant would be able to re-establish himself in either Spain or Colombia, given his education and work experience obtained in Australia and Spain.
The Tribunal accepts that the applicant has been living in Australia since 2013 and that he may have established personal and social ties with the Australian community.

Balanced against any potential hardship to the applicant that may result from the visa cancellation is the fact that the applicant came to Australia on a temporary visa, which created no expectation of remaining in Australia permanently.
Circumstances in which ground of cancellation arose
The applicant lost his job in February 2021. He claimed that he had difficulties with the sponsor, as the sponsor neglected the business due to ongoing court cases and divorce proceedings. He further claims that his employer has serious health issues. Again, the applicant provided no documentary evidence to substantiate those claims.
The Tribunal accepts that the circumstances in which the ground for cancellation arose were partially beyond his control; nevertheless, it is in the context of a temporary visa for a specific purpose which has now ceased.
The impact on any victims of family violence
There is no evidence before the Tribunal regarding this matter.
Past and present conduct of the visa holder towards the Department
The Tribunal accepts the applicant’s claims that he has been co-operative with the Department and previously complied with visa conditions.
Whether there would be consequential cancellations under s 140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s 140 of the Act. The Tribunal gives no weight to this consideration.
Whether there are mandatory legal consequences to a cancellation decision, whether indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s 46A, s 46B, s 48, s 48A, s 91E, s 91K and s 91P of the Act); and whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s 189, and liable for removal under s 198
The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case, he can depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
The Tribunal is mindful that s 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s 116 of the Act, may apply for certain prescribed classes of visa but not others. Regulation 2.12 of the Regulations prescribes the classes of visa, which do not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.
The Tribunal is satisfied that the applicant will not be prevented by Public Interest Criterion (PIC) 4013 of Schedule 4 to the Regulations from applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has an approved business nomination in relation to the applicant.
The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation
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 (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
The Tribunal is satisfied that in the circumstances of this case, cancellation would not lead to removal. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.
The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa. Based on the evidence before it, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements.
Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 482 – Temporary Skill Shortage visa.
Antonio Dronjic
Member