Williams (Migration)

[2020] AATA 5801

Williams (Migration) [2020] AATA 5801 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ivan David Williams
Ms Leigh Williams
Miss Morgan Leah Williams
Miss Ruby Mia Williams
Miss Ava Grace Williams

CASE NUMBER:  1935719

HOME AFFAIRS REFERENCE(S):          BCC2019/3308654

MEMBER:Mark O'Loughlin

DATE:27 October 2020

PLACE OF DECISION:  Adelaide

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

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

Statement made on 27 October 2020 at 3:11pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – breached condition 8107– wife was significantly incapacitated – compelling need to stay in Australia –under review set aside

LEGISLATION
Migration Act 1958, ss 116, 348

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 9 December 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had ceased working for the standard business sponsor that nominated him and the period during which he ceased employment exceeded 90 days meaning he had did not comply with condition 8107 which applied to his visa, 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 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 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 them.

4. The applicant appeared before the Tribunal by video on 27 October 2020 to give evidence and present arguments.

   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 condition 8107attached to the applicant’s visa. At part (3)(b) this condition requires that, if the visa holder ceases employment-the period during which the holder ceases employment must not exceed 90 consecutive days.

7. The applicant agreed in evidence that he does not dispute the breach of visa condition.

8. The Tribunal accepts the applicant’s evidence in this regard.

9. 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

10. 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’.

11. The applicant gave evidence that he and his family are well settled in Australia, he having come on 1 February 2007 with his wife and their eldest daughter.

12. His two other daughters were born in Australia.

13. The applicant said in evidence that the family regard Australia as their home and are keen to stay. He agreed that part of their life in Australia requires that he works here to support the family.

14. He said that if it were not possible for him to work in Australia, he does not know what they would do as they have nowhere else to go.  The Tribunal is not satisfied that the applicant and his family cannot return to the UK.

15. The Tribunal accepts that the applicant believes that he has a compelling need to stay in Australia, essentially because his family regard it as their home.

16. The Tribunal accords this consideration a little weight against cancelling the visa.

17. The applicant agreed in evidence that he was not working in breach of his visa condition for about 10 months and that, allowing the first 90 days, his breach was about seven months.

18. The Tribunal finds that this is a relatively substantial breach and accords this consideration some weight in favour of cancelling the applicant’s visa.

19. The applicant made submissions and gave evidence indicating that the family do not view themselves as having a home in the UK and that being obliged to return there would present a substantial hardship in many ways.

20. The applicant suggested that he and his family would be homeless. The Tribunal accepts that they would need to make hasty arrangements for accommodation but does not accept that they would be homeless.

21. The applicant had submitted that his daughters might suffer psychological trauma if they were obliged to go to the UK. The Tribunal accepts that they may be distressed but in the absence of medical evidence to that effect the Tribunal does not accept there is a substantial risk of psychological hardship to them.

22. Overall, the Tribunal does accept that the applicant and his family would suffer some degree of financial and emotional hardship and further that they may be significantly inconvenienced by the need to resettle and accords this consideration a little weight against cancelling the applicant’s visa.

23. The applicant gave evidence that his employment was terminated by his sponsor, Morgan Consulting Australia Pty Ltd on 28 February 2019.

24. He said that his wife’s health began to deteriorate in about August 2018 and slowly got worse, particularly in the period from about Christmas 2018 to early February 2019.

25. The applicant’s evidence, which the Tribunal accepts, was that his wife was significantly incapacitated from the ordinary activities of daily living and was often bedridden.

26. He said that a provisional diagnosis of cancer of the uterus was made and it was thought possible that the condition may be terminal.

27. Although it subsequently proved that her condition was not cancer, that diagnosis was not made until after the termination of his employment.

28. The applicant said that his employer had been unhelpful in allowing him time off work to look after his family or to visit his wife in hospital during the health crisis in the early part of 2019.

29. The applicant said that his employment was terminated and that his employer gave as a reason that he had failed to meet performance targets.

30. The applicant disputed that there had been any such failure.

31. There is evidence before the Tribunal of a complaint that the applicant made to Fair Work. That complaint was resolved by negotiation.

32. The Tribunal accepts the evidence that the applicant’s employment was terminated and accepts that the termination came at a time when the applicant was so distressed by state of his wife’s health that he would have had difficulty attending to his work.

33. On that basis the Tribunal is prepared to accept that the applicant’s employment was terminated for reasons outside of his control and accords that consideration some weight against the cancellation of his visa.

34. The applicant was at pains to demonstrate that his past and present behaviour towards the Department was generally open and communicative. The Tribunal finds that this consideration does not weigh either for or against cancellation of the applicant’s visa.

35. The Tribunal accepts that cancellation of the applicant’s visa would result in consequential cancellations of his wife and eldest daughter’s visas under section 140 but as this is the ordinary and intended consequence of the visa cancellation the Tribunal accords this consideration no weight against cancellation of the visa.

36. If the visa is cancelled the applicant will become an unlawful non-citizen and will need to apply for another visa to remain in Australia. If he is not granted a visa and does not leave voluntarily, he will become liable to detention under section 189 and two removal under section 198.

37. Future visa grants may be compromised by the cancellation of this visa.

38. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

39. Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

40. The Tribunal has weighed the considerations set out above together and finds that the circumstances surrounding the applicant’s breach of his visa conditions were strongly affected by circumstances outside of his control.

41. The Tribunal also has regard to the likely hardship that would be experienced by the applicant and his family in relocating to the UK.

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

    DECISION

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

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

    Mark O'Loughlin
    Member