Vetrano (Migration) - [2022] AATA 824

Vetrano (Migration) [2022] AATA 824 (25 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Salvatore Vetrano
Mrs Maria Lacaria
Miss Valeria Vetrano
REPRESENTATIVE:  Mrs Alessia Comandini (MARN: 1684766)
CASE NUMBER:  2101212
HOME AFFAIRS REFERENCE(S):          BCC2020/2061487
MEMBER:Wan Shum
DATE:25 March 2022
PLACE OF DECISION:  Sydney
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 other applicants.

Statement made on 25 March 2022 at 11:36am
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) – Subclass 482 (Temporary Skill Shortage) – ceased employment for more than 60 days – temporary suspension or termination because of industry COVID-19 restrictions – not entitled to JobKeeper due to visa status – not given required notice or redundancy payment, so not aware that employment terminated – discretion to cancel visa – treatment for serious workplace injury soon after starting with new employer – members of family unit – consequential cancellation of visas with no jurisdiction to review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
CASES
Rani v MIMA (1997) 80 FCR 379
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 January 2021 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).
The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant had not complied with condition 8607 of his visa.
The applicants sought review of the visa cancellations and were represented in relation to the review. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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 applicant. The other applicants’ visas were 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 those other visas self-executing on the cancellation of the 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 visas cancelled under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicant was were invited to attend a hearing scheduled for 10 September 2021. The applicants sought a postponement as the applicant had sustained a serious injury and provided a letter dated 31 August 2021 from his doctor which relevantly states that he was…

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.

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Details

AGLC: Vetrano (Migration) [2022] AATA 824
Case: [2022] AATA 824
Decision Date: 25 March 2022

CaseChat Overview and Summary

This matter concerned an application to review the cancellation of the applicant's Subclass 482 Temporary Skill Shortage visa. The applicant's visa was cancelled on the grounds that he had ceased employment for more than 60 consecutive days, in breach of a visa condition. The applicant contended that his cessation of employment was due to COVID-19 pandemic restrictions, that he was not formally notified of his termination, and that he was not aware of the termination until he received a notice of intention to cancel his visa. The Tribunal considered the circumstances surrounding the applicant's employment cessation, his subsequent injury, and the impact on his family unit.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth) was correct, and if so, whether the discretion to cancel the visa should have been exercised in the applicant's circumstances. Specifically, the Tribunal had to determine if the ground for cancellation existed, and if it did, whether the applicant's personal circumstances, including the impact of COVID-19, his subsequent serious workplace injury, and the potential hardship to his family, warranted setting aside the cancellation decision.

The Tribunal found that while the ground for cancellation under section 116(1)(b) existed, as the applicant had ceased employment for more than 60 days, the cancellation was not mandatory. The Tribunal then considered the exercise of discretion, noting that the applicant was not formally notified of his termination and was unaware of it until receiving the notice of intention to cancel. It also took into account the applicant's serious workplace injury, which rendered him unable to work for at least six months and could be interrupted by his departure from Australia. Furthermore, the Tribunal considered the impact on the applicant's wife and daughter, whose visas were consequentially cancelled. Balancing these factors, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision to cancel the applicant's Subclass 482 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning the other applicants, who were family members.

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 set aside.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. The applicant was granted a Subclass 482 visa on 5 June 2019 for a period of 2 years in respect of a nomination made by Avstev Investments Pty Ltd (Avstev) for a Precision Instrument Maker and Repairer. He was earlier granted a Subclass 457 visa on 16 May 2015 for a period of 4 years on the basis of sponsorship by the same employer. Based on this information, it appears that he commenced his employment with them from May 2015. For his Subclass 482 visa, condition 8607 was attached to the visa. It requires, among other things, that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. The applicant was sent a notice of intention to consider cancellation (NOICC) on 14 October 2020, on the basis that he was in breach of condition 8607(5) as Avstev had advised the Department that the applicant ceased employment with them effective April 2020. The delegate explained that this information appeared to indicate that the applicant had not complied with condition 8607(5) because the period during which he had ceased employment had exceeded 60 consecutive days. On 28 October 2020, the applicant’s representative sent a response that relevantly stated that given restrictions imposed by the COVID-19 pandemic, Avstev had to temporarily suspend business in March 2020. It was claimed that employees were verbally advised not to return to the workplace, but there had been no written notification of termination of employment and the applicant continued to receive his monthly pay slips from the sponsor for the months of March and April 2020. Then on 15 April 2020, Elizabeth Kurniawan, the Finance Manager at Avstev, advised all employees (including the applicant) via email that the business intended to enter the JobKeeper scheme[1] and requested that the employees complete the relevant JobKeeper employee nomination form. It was claimed that the applicant had done this, although a copy was not provided. [1] The JobKeeper payment was made available to eligible businesses affected by the coronavirus for a specific period to help the business continue to pay their employees: (accessed 25 March 2022) The applicant claims that on 20 April 2020, he received an SMS message from the Finance Manager indicating that he was not entitled to the JobKeeper payment due to his visa status and as a result, he would only be paid for his long service leave (LSL) to assist him during this period. The final correspondence provided at the time from the applicant was an email on 26 June 2020 from the Finance Manager attaching a copy of his 2019-20 PAYG statement. The period of payment on the statement is entered as 1 July 2019 to 30 April 2020.

Decision

Reasons for decision

The circumstances in which cancellation arose are essentially that the applicant’s former employer was required to close down a work site in March 2020 because of an enforceable government direction or public health order in connection with the COVID-19 pandemic. The Tribunal’s attention was drawn to various concessions made by the State and Federal Government to address the impact of the COVID-19 pandemic on employers and employees, in particular the COVID-19 concessions for TSS visa holders. However, these concessions only applied to visa holders who had been stood down by their sponsor, and as referred to above, the former employer had informed the Department that this was not what had occurred in respect of the applicant’s employment. In addition, the concessions to access LSL appears to the Tribunal to have been made available only where the employee would have been able to access the leave already, so would not have applied to the applicant’s circumstances as he had not been employed with Astev for 10 years.[2] [2] Refer to information published by NSW Industrial Relations regarding the temporary laws passed in NSW Parliament which will create greater flexibility for employers and workers to access their long service leave during the ongoing COVID-19 crisis. (accessed 28 February 2022) >There does not appear to be any dispute that the applicant did not work for Avstev again after that. The submissions refer to the applicant conceding that he breached condition 8607 imposed on his visa but that ‘it happened because of factors beyond his control’. It is claimed that he would have easily found work as a Precision Instrument Maker and Repairer if he had known that his employment had been terminated by Avstev. Having reviewed all the information which includes various correspondence from the former employer to the applicant and to the Department, the Tribunal finds that the applicant was informed that he would not be required to attend the workplace from late March 2020 and was never asked to resume employment with his former employer. While Avstev claims that they formally terminated the applicant’s employment in late March 2020, having regard to the various dates provided on the correspondence allegedly notifying the applicant of the termination and different dates given to the Department, the Tribunal is prepared to accept that the applicant did not receive formal notification of termination even though his last salary-related payment was received in April 2020. As the applicant was informed that it was an LSL payment, which cannot be paid out except until termination, the Tribunal considers that he was terminated at that point but accepts that he was not aware that his employment was terminated.It finds, however, that he did become aware of this some time between 14 and 19 October 2020 when he received the NOICC, and considers that there is limited evidence that he did attempt to find alternate employment at that point. While it is claimed that he would easily have been able to find work in his field, which does appear to the Tribunal to be a specialist occupation, the Tribunal has doubts that it would have been easy in the prevailing economic circumstances due to COVID-19 and was not presented with any evidence to support such a claim. The applicant claims that he was in contact with Aqua Resistant Pty Ltd in around 24 February 2021 and been in contact with Seiko regarding possible work, but there is no evidence that he was offered employment or did work for them possibly due to not having permission to work at that time. In terms of other factors, there is nothing before the Tribunal to indicate that his past and present behaviour towards the Department is problematic in any way.The Tribunal also considers that there would be a reasonable degree of hardship that may be caused to the applicant and his family because of the visa cancellation, and notes that while the applicant is not currently employed, the letter from his GP of 15 February 2022 sets out that he is receiving intensive treatment for a workplace-based injury which has left him unable to work for at least another 6 months. The Tribunal accepts that the applicant is under treatment for multi-trauma, which involves treatment from a pain management specialist and a psychologist for depression, and has taken into account the GP’s opinion that both treatments should not be interrupted in its consideration of whether the visa should be cancelled. It notes further that the treatment payments appear to be covered by WorkCover insurance and may no longer be accessible if his visa was cancelled and he had to depart Australia immediatelyThe Tribunal has also had regard to the applicant’s wife and their daughter’s circumstances, as their visas were cancelled under s 140 as a consequence of the applicant’s Subclass 482 visa being cancelled. The applicant’s wife is working full-time for Deliver Pty Ltd, a company that distributes deli products and as referred to above, their daughter is in Year 3 attending a Catholic primary school. The applicant and his wife are nationals of Italy, and the Tribunal understands that if they are to leave Australia, they would return to Italy as a family. The Tribunal considers that the best interests of the child is to remain with both her parents, whether that is in or outside Australia. There is nothing before the Tribunal to indicate that cancellation of the visa would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations. There is no evidence, and the applicant does not explicitly claim, that Australia has protection obligations towards him. The Tribunal further notes that the applicant is able to make an application for a protection visa if he believes Australia owes protection obligations. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. In terms of mandatory legal consequences, if the applicant’s visa remains cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen. If he fails to depart Australia before the bridging visa expires, he may be detained and removed. Other than a limited number of visas, the applicant would be prevented from making a valid visa application in Australia without the Minister’s intervention. There may be restrictions on the applicants’ future travel and future visa applications as a consequence of the cancellation. The Tribunal considers these restrictions to be a legitimate manner in which the Australian government seeks to maintain a degree of compliance with the visa conditions imposed on non-citizens.In summary, the Tribunal accepts that the applicant was not aware that his employment had been terminated until just prior to 19 October 2020 so had not looked for alternate employment until after that date. The applicant claims that he would be able to find work easily, but there is little evidence to demonstrate this and the Tribunal notes that he contacted his former employer on 24 December 2020, which is more than 60 days after the NOICC was received when he became aware of his termination from Avstev, to re-commence work for him which suggests that he was unable to secure alternate employment. It does consider however that it is possible that the COVID-19 pandemic over the past 2 years has disrupted the normal operations of the types of businesses that may require a Precision Instrument Maker and Repairer.The applicant’s evidence is that he did not work again as a ‘Precision Instrument Maker and Repairer’ and found work as a labourer. Then, apparently, after only 1 or 2 days, sustained a serious workplace injury. Based on the medical documents, the injury appears to have occurred on 26 February 2021, which is clearly more than 60 consecutive days after he became aware that his employment with Avstev had ceased. The applicant concedes that he ceased employment for more than 60 days and in the circumstances of this case, the Tribunal finds that he had more than the usual time allowed to find alternate employment.This is weight against the manner in which the applicant became aware that his employment was terminated as well as his physical and emotional wellbeing following a workplace injury, noting in particular that the prognosis from his injury is ‘guarded’ and that it would be likely there may be some interruption to his treatment if his visa was cancelled and he had to depart Australia immediately. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISIONThe 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 other applicants.Wan ShumMember

Ratio Decidendi

Legal Principle Established

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 There are no matters specified in the Act or the Migration Regulations 1994 (Cth) (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’. In respect of the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia, the Tribunal considers that it was to work temporarily as a Precision Instrument Maker and Repairer. Had the applicant’s visa not been cancelled, it would have ceased in June 2021. The submissions acknowledged that the Temporary Skills Shortage (TSS) Subclass 482 visa is a temporary visa for an initial period of 2 years, but noted that it was extendable for another 2 years and potentially for a further 2 years (offshore). It was submitted that the applicant had applied for the TSS visa knowing that it could be renewed and that it could have been extended potentially until 2023/2024 (considering any period in which they would have held Bridging Visas), in order to allow their daughter to finalise at least her primary school years and eventually start high school overseas. It was submitted that the applicant’s daughter was born in Australia and attending primary school and that having to interrupt her studies will be an ‘enormous problem’ as she has never experienced a different schooling system and speaks Italian as a second language. It was submitted that it would be ‘extremely beneficial to finalize [sic] at least this year of school (Year 3)’ because in Italy the school system is different, starting in September and finishing in June of the following year and that starting now in Italy would be extremely hard and mentally challenging for her. The circumstances in which cancellation arose are essentially that the applicant’s former employer was required to close down a work site in March 2020 because of an enforceable government direction or public health order in connection with the COVID-19 pandemic. The Tribunal’s attention was drawn to various concessions made by the State and Federal Government to address the impact of the COVID-19 pandemic on employers and employees, in particular the COVID-19 concessions for TSS visa holders. However, these concessions only applied to visa holders who had been stood down by their sponsor, and as referred to above, the former employer had informed the Department that this was not what had occurred in respect of the applicant’s employment. In addition, the concessions to access LSL appears to the Tribunal to have been made available only where the employee would have been able to access the leave already, so would not have applied to the applicant’s circumstances as he had not been employed with Astev for 10 years.[2] [2] Refer to information published by NSW Industrial Relations regarding the temporary laws passed in NSW Parliament which will create greater flexibility for employers and workers to access their long service leave during the ongoing COVID-19 crisis. (accessed 28 February 2022) >There does not appear to be any dispute that the applicant did not work for Avstev again after that. The submissions refer to the applicant conceding that he breached condition 8607 imposed on his visa but that ‘it happened because of factors beyond his control’. It is claimed that he would have easily found work as a Precision Instrument Maker and Repairer if he had known that his employment had been terminated by Avstev. Having reviewed all the information which includes various correspondence from the former employer to the applicant and to the Department, the Tribunal finds that the applicant was informed that he would not be required to attend the workplace from late March 2020 and was never asked to resume employment with his former employer. While Avstev claims that they formally terminated the applicant’s employment in late March 2020, having regard to the various dates provided on the correspondence allegedly notifying the applicant of the termination and different dates given to the Department, the Tribunal is prepared to accept that the applicant did not receive formal notification of termination even though his last salary-related payment was received in April 2020. As the applicant was informed that it was an LSL payment, which cannot be paid out except until termination, the Tribunal considers that he was terminated at that point but accepts that he was not aware that his employment was terminated.It finds, however, that he did become aware of this some time between 14 and 19 October 2020 when he received the NOICC, and considers that there is limited evidence that he did attempt to find alternate employment at that point. While it is claimed that he would easily have been able to find work in his field, which does appear to the Tribunal to be a specialist occupation, the Tribunal has doubts that it would have been easy in the prevailing economic circumstances due to COVID-19 and was not presented with any evidence to support such a claim. The applicant claims that he was in contact with Aqua Resistant Pty Ltd in around 24 February 2021 and been in contact with Seiko regarding possible work, but there is no evidence that he was offered employment or did work for them possibly due to not having permission to work at that time. In terms of other factors, there is nothing before the Tribunal to indicate that his past and present behaviour towards the Department is problematic in any way.The Tribunal also considers that there would be a reasonable degree of hardship that may be caused to the applicant and his family because of the visa cancellation, and notes that while the applicant is not currently employed, the letter from his GP of 15 February 2022 sets out that he is receiving intensive treatment for a workplace-based injury which has left him unable to work for at least another 6 months. The Tribunal accepts that the applicant is under treatment for multi-trauma, which involves treatment from a pain management specialist and a psychologist for depression, and has taken into account the GP’s opinion that both treatments should not be interrupted in its consideration of whether the visa should be cancelled. It notes further that the treatment payments appear to be covered by WorkCover insurance and may no longer be accessible if his visa was cancelled and he had to depart Australia immediatelyThe Tribunal has also had regard to the applicant’s wife and their daughter’s circumstances, as their visas were cancelled under s 140 as a consequence of the applicant’s Subclass 482 visa being cancelled. The applicant’s wife is working full-time for Deliver Pty Ltd, a company that distributes deli products and as referred to above, their daughter is in Year 3 attending a Catholic primary school. The applicant and his wife are nationals of Italy, and the Tribunal understands that if they are to leave Australia, they would return to Italy as a family. The Tribunal considers that the best interests of the child is to remain with both her parents, whether that is in or outside Australia. There is nothing before the Tribunal to indicate that cancellation of the visa would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations. There is no evidence, and the applicant does not explicitly claim, that Australia has protection obligations towards him. The Tribunal further notes that the applicant is able to make an application for a protection visa if he believes Australia owes protection obligations. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. In terms of mandatory legal consequences, if the applicant’s visa remains cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen. If he fails to depart Australia before the bridging visa expires, he may be detained and removed. Other than a limited number of visas, the applicant would be prevented from making a valid visa application in Australia without the Minister’s intervention. There may be restrictions on the applicants’ future travel and future visa applications as a consequence of the cancellation. The Tribunal considers these restrictions to be a legitimate manner in which the Australian government seeks to maintain a degree of compliance with the visa conditions imposed on non-citizens.In summary, the Tribunal accepts that the applicant was not aware that his employment had been terminated until just prior to 19 October 2020 so had not looked for alternate employment until after that date. The applicant claims that he would be able to find work easily, but there is little evidence to demonstrate this and the Tribunal notes that he contacted his former employer on 24 December 2020, which is more than 60 days after the NOICC was received when he became aware of his termination from Avstev, to re-commence work for him which suggests that he was unable to secure alternate employment. It does consider however that it is possible that the COVID-19 pandemic over the past 2 years has disrupted the normal operations of the types of businesses that may require a Precision Instrument Maker and Repairer.The applicant’s evidence is that he did not work again as a ‘Precision Instrument Maker and Repairer’ and found work as a labourer. Then, apparently, after only 1 or 2 days, sustained a serious workplace injury. Based on the medical documents, the injury appears to have occurred on 26 February 2021, which is clearly more than 60 consecutive days after he became aware that his employment with Avstev had ceased. The applicant concedes that he ceased employment for more than 60 days and in the circumstances of this case, the Tribunal finds that he had more than the usual time allowed to find alternate employment.This is weight against the manner in which the applicant became aware that his employment was terminated as well as his physical and emotional wellbeing following a workplace injury, noting in particular that the prognosis from his injury is ‘guarded’ and that it would be likely there may be some interruption to his treatment if his visa was cancelled and he had to depart Australia immediately. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISIONThe 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 other applicants.Wan ShumMember