Train (Migration)

[2022] AATA 5143

Train (Migration) [2022] AATA 5143 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Peter Landale Train
Mrs Gillian Train

REPRESENTATIVE:  Mr Arnold Conyer

CASE NUMBER:  2208296

HOME AFFAIRS REFERENCE(S):          BCC2021/1842957

MEMBER:Vanessa Plain

DATE:17 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 17 November 2022 at 12:22pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ground for cancellation – fact or circumstance no longer exist – ceased employment with sponsor – did not notify change in employer – consideration of discretion – procure employment in a similar field – honest and reasonable mistake – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360

Migration Regulations 1994 (Cth), Schedule 8, Condition 8607

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 May 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(a) on the basis that the visa was granted wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists and the applicant failed to comply with condition 8607 attached to the visa. The dependant applicants’ visas were cancelled as a consequence of the cancellation of the primary visa holder. 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. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicant submitted a number of documents to the Tribunal in support of his case.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)(a). 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?

8. The Delegate’s decision record contends that the applicant has not complied with subclause condition 8607 attached to their subclass 482 (Temporary Skill Shortage) visa, which requires the visa holder to work for the sponsor or an associated entity and to work within the nominated occupation. 

9. The Delegate’s decision record of 30 May 2022 provides as follows:

   “The visa holder was granted a Temporary Skill Shortage (subclass 482) visa 22 March 2021 with sponsorship from employer George Weston Foods Limited. The visa holder ceased to be employed with his sponsor employer 9 July 2021 and the Department did not receive information as to a new employer.
   The visa holder has submitted that he was employed as a Senior Dairy Farm Hand with Inionba Pastoral from 10 July 2021 and that it was his intent and expectation that his employer had registered his new employment situation with the Department. Information before me indicates that should this new employment have attempted to be registered by the employer the Department would likely not have considered the employment as a Senior Dairy Farm Hand in line with the original visa grant and would likely require a new Skilled visa application under the new employment situation.

   As such, the relevant circumstances for the grant of the visa, working as a Farrowing House Manager for George Weston Foods Limited no longer exist and as such there are grounds for cancellation under section 116(1)(a) of the Act.”

10. A Notice of Intention to Consider Cancellation dated 10 May 2022 (NOICC) was sent to the applicant at their nominated address.  The applicant provided a response to the NOICC dated 13 and 24 May 2022 respectively.  

11. In support of his case, the applicant submitted various documents to the Tribunal which addressed the alleged grounds for cancellation and provided reasons why the visa ought not be cancelled.  The Tribunal has considered the documents provided by the applicant:

    (a)The delegate’s decision record

    (b)Current contract of employment

    (c)Written submissions 

    (d)Signed statement  

12. If the Tribunal is 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.

13. The Tribunal notes the applicant has acknowledged that he ceased employment with his former employer, and he provided reasons to the delegate as to why his visa ought not be cancelled, as follows:

    “The visa holder was under the impression that his employer had provided the necessary documentation for the change of employer to the Department and was “shocked” to be informed that it had not been actioned.

    The visa holder was misled as to his visa status by his employer that immigration assistance had been delivered.

    The visa holder’s livelihood would be destroyed and it would have adverse impact on his further visa applications.”

14. Based on the applicant’s evidence and decision record, the Tribunal finds that the applicant ceased employment with the sponsoring business on or about 9 July 2021 and did not notify the department of the change in employer.  Accordingly, the Tribunal finds that the applicant did not comply with condition 8607.

15. For these reasons, the Tribunal finds 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

16. 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’.

17. 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 and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for

18. 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.

    Purpose of applicant’s travel to and stay in Australia

19. The purpose of the Temporary Skill Shortage (subclass 482) visa is for skilled workers from outside Australia who have been sponsored and nominated by an approved 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 for George Weston Foods Ltd as a Farrowing House Manager on a temporary basis.

20. The applicant commenced new employment as a Senior Dairy Farm Hand with Inionba Pastoral from 10 July 2021. He assumed that his new employer had submitted the necessary paperwork to the Department and his current position as a Senior Dairy Farm Hand, although not identical to his previous position, remains a position of employment in the farming/rural sector.  I consider that the purpose of the applicant’s stay in Australia necessarily no longer exists, as his purpose, originally to work as a Farrowing House Manager at George Weston Foods Limited no longer exists. 

21. However, the Tribunal does not place significant weight upon this fact, as the applicant took immediate steps to procure and did procure employment in a similar field and was reasonably led to believe that his new employer had filed the necessary paperwork with the department.   

22. The purpose of granting a temporary skill shortage 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 applicant’s new position is a 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.

23. The Tribunal finds that this purpose presently exists as the applicant has taken up employment with their proposed new sponsor.   

24. The Tribunal affords this consideration significant weight in favour of not cancelling the visa.

    The extent of compliance with visa conditions

25. The non-compliance with a visa condition arose when the applicant ceased working with their sponsoring employer on 9 July 2021 and did not notify the department of his new employment as he assumed that his new employer had done so.  Upon being made aware that the relevant paperwork had not been filed, he immediately ceased work so as to ensure he was not working contrary to the terms of his visa.  This demonstrates a willingness to abide by visa conditions to which the Tribunal affords some weight. 

26. The Tribunal is satisfied that the applicant took honest and reasonable steps when he undertook his new role with a new employer and the fact that the department was not notified was an honest and reasonable mistake on the part of the applicant.       

27. The Tribunal is otherwise satisfied that the applicant has complied with all other visa conditions.

28. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The circumstances in which the ground for cancellation arose

29. The applicant ceased their employment at the sponsoring business in July 2021.  The Department did not proceed with the visa cancellation until May 2022.  The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with another business sponsor which he evidently did.

30. Importantly, the Tribunal accepts that the circumstances in which the ground for cancellation arose were not reasonably the fault of the applicant due to the fact that he held a reasonable, honest and genuine belief that his new employer had filed the requisite paperwork with the department as to his change in employment circumstances.     

31. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

32. The Tribunal acknowledges the applicant’s signed statement as to the hardship and difficulty the applicant will suffer if her visa remains cancelled.  The applicant and his wife are under extreme financial pressure as a result of issues with the applicant’s former employer and have had to relocate their residential premises with the assistance of their adult daughter. 

33. The applicant’s wife is also suffering serious health issues, currently diagnosed with calcified lesions on her lungs.

34. Balanced against any potential hardship to the applicant and their family 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. The purpose of a subclass 482 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a subclass 482 visa is to allow skilled workers to come to Australia and work for an approved business for a temporary period of time.

35. However, taking into account all the above matters, the Tribunal acknowledges that the applicant and particularly his wife will suffer some hardship and gives this consideration some minor weight against cancelling the visa. 

    The visa holder’s past and present behavior towards the Department

36. The applicant responded promptly and in detail to the NOICC and provided an extensive statement to the Tribunal in writing.      

37. There is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

38. The Tribunal gives this consideration some minor weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

39. The dependent applicants are dependent upon the primary applicant’s visa.  The cancellation of the applicant’s visa results in a consequential cancellation for the dependent visa holders under s140 of the Act.  

40. As this cancellation will impact the visa status of the dependant visa holder, the Tribunal gives this consideration a little weight against cancelling the visa.

    Legal consequences of a decision to cancel the visa

41. 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 them to remain in Australia. If that is the case, they have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

42. The Tribunal observes that the applicant’s Subclass 482 visa was cancelled under s.116(1)(b) of the Act because they breached the 8607 condition imposed on their visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 482 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa. 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.

43. 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 visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

44. 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 they do not voluntarily depart Australia.  These are mandatory and intended consequences of the legislation.  However, given the matters set out above, the Tribunal considers that theses consequence in the circumstances of this case would be manifestly unfair.

45. The Tribunal therefore gives this consideration some weight against cancelling the visa.

    Australia’s international obligations

46. 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).

47. There is no evidence before the Tribunal that the applicant has minor children living in Australia who are dependent upon his visa.

48. The Tribunal does not give this consideration any weight for or against cancelling the visa.

    The impact of any victims of family violence

49. There is no evidence before the Tribunal regarding this issue.

    Any other relevant matters

50. The matters set out above do not reveal any bad faith on the part of the applicant, having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa.

51. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

53. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

54. The Tribunal has no jurisdiction with respect to the other applicants.

    Vanessa Plain
    Member

    
    
    

Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala 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].