Williamson (Migration)

[2021] AATA 1334

Williamson (Migration) [2021] AATA 1334 (3 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Marissa Jane Williamson

CASE NUMBER:  2012122

HOME AFFAIRS REFERENCE(S):          BCC2020/1240091

MEMBER:Michael Cooke

DATE:3 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 03 February 2021 at 3:48pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ground for cancellation – ceased employment with sponsor – consideration of discretion – circumstances in which ground of cancellation arose – beyond the visa holder’s control – employer not qualified as a business sponsor – job market under the COVID-19 pandemic – compelling need to remain in Australia – degree of hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 July 2020 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8607 attached to her 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 following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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

5. 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 8607 attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

6. The applicant has elaborated her visa situation for the edification of the Tribunal in a submission as follows:

   1.1      I began working at Publicis Media on the 8th January 2018, whilst on a working holiday visa. On the 1st August 2018 my 482 TSS visa was granted. I was working very long hours for a long period of time, which was making me exhausted and extremely stressed. The long hours were affecting my mental health, and I found it to be a very unhealthy lifestyle. So I decided to look for a new employer. I was initially employed at Publicis Media as a Client planner, and I was later promoted to a Client Manager.

   1.2. In August 2019 whilst I was working at Publicis Media, I started interviewing for an Account Manager role at the Urban List. The role was still in my nominated skill of a Marketing Specialist. Throughout the interview process, I mentioned numerous times that I needed sponsorship, and Urban List assured me that they could take on my visa. Attached is the email from the Urban List with my offer, as well as written confirmation that they were going to take on my sponsorship [1].

   1.3. David Boldeman was Head of Commercial at the Urban Lis at the time, and he offered me the job. I have included a recent email from David, which states how he had been given the authority to confirm that Urban List would be taking on my visa and sponsoring me [2]. David was given permission from HR and the owners of the company to transfer my visa, so he then proceeded to send me the job offer. I trusted that the Urban List were aware of the 482-sponsorship visa transfer process, as they assured me in person and in writing that this is something they could do. They also mentioned that they had previously sponsored employees. With all this in mind, I then assumed that this was now in the hands of HR and their immigration lawyers.

   1.4.     I received my contract [3] and was given a start date, which is when I assumed that my visa would have been accepted by. I started work at the Urban List on the 28th October 2019.

   1.5.     In my opinion, Urban List exploited me by misleading me and giving me false hope about sponsorship. I was aware of my 8607 condition, and therefore would have never taken the role if I knew they had misinformed me about the visa transfer. It was never my intention to breach my visa condition, given that I'm extremely grateful to be able to live and work in Australia, and I would never do anything to potentially disrupt that. To my knowledge, I was being compliant to my visa conditions, and I had started my new employment within 60 days of ceasing my previous employment.

   1.6.     On the 5th March 2020, it came to my attention that Urban List hadn't transferred my visa. This thought came to me as I was discussing it with a friend who was waiting for her new employer to transfer her visa. That evening I messaged my manager Blair [4] and brought the matter to his attention. As per the messages, we agreed that we would inform HR and the owner of the company Prue in the morning. It concerned me deeply that I was potentially in breach of my visa, and therefore a threat to my stay in Australia.

   1.7. The following day, I sent an email to HR, Prue, and my boss Blair, making them aware of the urgent matter and set up a meeting to discuss the issue. I also got in touch with HR at Publicis Media to inform them of the situation. I made numerous phone calls to update them on the matter, and they gave me advice from their lawyers at Deloitte [5]. In March 2020, Publicis Media informed the department of home affairs that I had left the company, after I had updated them on the situation.

   1.8. My employment at the Urban List was terminated on the 16th March 2020 [6]. They had spoken to their employment lawyer and were told that they are not able to sponsor anyone on the 482 visa, as they do not qualify as a business sponsor. They terminated my employment over a video call as we were working from home due to COVID-19. I was extremely upset and disappointed that I was put in a position where I had breached my visa and was at a risk of having my visa cancelled. The company had misled me from the early stages of the interview process, and I had been assured that they were able and willing to regulate my visa. They had known that they did not qualify as a 482-business sponsor, therefore should never made an attempt to hire me.

   1.9.     Urban List had lied throughout the whole interview process, and whilst I was working there. I deem this to be completely unacceptable, for a business to not have the knowledge and understanding of the complexity of hiring a non-Australian citizen. If they were unsure about the sponsorship process, then they should have never offered me the job or misled me. I was fully aware that being sponsored by an employer was the only way for me to stay in Australia, which is why I kept bringing it to their attention during my interviews, and made sure that they were able to take my visa on. However, Urban List showed a lack of respect towards me by misinforming me of the reality that they could never in fact be able to sponsor. I believe I was in a vulnerable position. I wanted to leave my job at Publicis Media due to being over worked, and I was offered a chance of a new position at Urban List with sponsorship. If I had known that Urban List could not sponsor me, then I would never have left my job at Publicis Media. I believe that for this reason the Department of Home Affairs should have exercised discretion and not cancelled my 482 visa.

   1.10. After my employment was terminated, I started to actively seek new employment every day, with the need for an employer to take on my sponsorship. Between March and August, I applied for hundreds of jobs. My LinkedIn shows the volume of jobs I applied for during this time [8]. I applied for over 200 jobs on LinkedIn. I also used other sites such as Indeed, Seek, and Gumtree to find employment. However, the timing coincided with COVID-19 lockdown and restrictions. This made it almost impossible for me to secure new employment, as companies were uncertain about their future and revenue. With many companies having to make redundancies or put hiring freezes into play.

   1.11. In April 2020, I made it to the final stages for a position at a media agency Wavemaker. They were able to sponsor me for my approved nomination of a marketing specialist. However, due to COVID-19 they had to put the recruitment for this role on hold [8]. This is just one example of me almost successfully taking on a new role, however because of Covid, this was put on hold.

   1.12. I believe that there should be more weight given to the fact that COVID-19 had a huge impact on my ability to find new employment, and therefore this had a huge impact on my visa status. I am confident that given my 7+ years’ experience in marketing, and the skills that I have developed in this time, that I would have found a job immediately after my employment ended at Urban List.

   1.13. I lodged a 461 New Zealand Citizen Family Relationship visa on the 2nd June 2020, which is pending before the department [9]. I was granted a bridging visa A on the 16th July 2020, whilst my 461 Partner visa is pending approval. My 482 was due to expire on the 1st August 2020, but it was cancelled on the 20th July 2020, 12 days before it was going to expire. If the department had waited an additional 12 days, then my bridging visa A would have come into effect. In my opinion, this is an unfair decision. I understand that the Department of Home Affairs had the right to cancel, however it could have been left for 12 day to allow my visa to expire.

   I am hoping that the decision to cancel my 482 visa will be set aside, so that my current employer Havas Media can submit my 482 nomination application, and my bridging visa A can be re-instated. For the following reasons I hope that the decision can be made to set aside the cancelation:

   4.1. Whilst I had technically breached my 8607 visa condition, I was unaware at the time that I had done so. As soon as it had come to my attention that I was in breach of my visa, I took immediate action. It concerned me deeply that I was in breach of my visa, and therefore a threat to my stay in Australia. The breach of my 8607 condition was out of my control.

   4.2. After my employment with Urban List was terminated in March 2020, I made many attempts to secure a nomination with an approved sponsor. However, Covid-19 meant that most companies were not hiring, which made this process extremely difficult. Despite this, I still managed to have numerous interviews, but in most cases the job was put on hold until the market started to go back to normal. I am confident that in normal circumstances, I would have secured a job not long after I had lost my job in March.

   4.3. Despite the current climate, I have been able to secure employment with Havas Media, as an Associate Communications Director. There continues to be a shortage of marketing specialists in Australia, and my intention is to meet shortages in the Australian labour market. I am a valued employee, and I am extremely hard-working. If the decision is made to set aside my visa cancelation, Navas Media are willing to submit a 482 visa nomination application for me. Therefore, it would be unfair to cancel my visa while the outcome of the nomination was unknown.

   Consideration of discretion 

7. The visa holder explicitly confirms that she ceased employment with the sponsor on 04 October 2019. Neither the applicant, nor the sponsor, has informed that she has returned to work for the sponsor, or an associated entity of theirs, within 60 consecutive days of ceasing employment’

8. Furthermore, the applicant has accepted that she:

   “technically breached my 8607 visa condition, I was unaware at the time that I had done so. As soon as it had come to my attention that I was in breach of my visa, I took immediate action. It concerned me deeply that I was in breach of my visa, and therefore a threat to my stay in Australia. The breach of my 8607 condition was out of my control”.

9. In this instance condition 8607 was attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. Though the applicant has made a strong argument that she breached her visa for reasons “beyond her control” - and has given a diarised recounting of the matter - she has still effectively breached the condition in question.

10. 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

11. 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 visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

12. The applicant was granted her Subclass 482 visa for the purpose of undertaking employment in the nominated occupation - Marketing Specialist (ANZSCO 225113) with the approved sponsor – Publicis Media Australia Pty Ltd.

13. The applicant has argued she has ‘a compelling need to remain in Australia’ as she has a concurrent visa application for a Subclass 461 visa application afoot with her Australia resident New Zealander partner. She has explained her motivation in moving to Australia is to settle and make a new life here with her partner doing a job for which there is a significant need in the Australian economy.

14. The Tribunal gives this consideration maximum positive weight against cancellation

    ·the extent of compliance with visa conditions

15. The Tribunal is unaware of any other non-compliance issue apart from the non-compliance - the subject of this review.

16. The Tribunal gives this consideration some positive weight against cancellation.

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

17. The applicant has summarised the personal hardship impact of cancellation as follows:

    For the following reasons, I believe that more weight should be given to the hardship that will be caused because of the visa cancellation:

    The 461 visa processing times are currently 3 years. Whilst my bridging visa E does allow me to stay and work in Australia, it does come with some serious conditions including a travel ban. Until my 461 is approved, I will not be able to travel home to the UK to visit my family. Whilst my intention is to stay in Australia, naturally Sean and I would like to visit the UK to see my family. My mum passed away in November 2012, so my Dad lives on his own and gets very lonely. He has also struggled during the current pandemic as he has not been able to see many people. As soon as the borders between Australia and the UK are open, I would like to visit my dad, as it's been over 2 years since my last trip to the UK. However, a mistake that was out of my control, will mean that I will not be able to see my family for potentially the next three years until my 461 visa is approved. This is deeply upsetting, and I believe that this will have a big impact on me emotionally. I do not believe that this is a fair consequence for an error that was made on my behalf. If the decision to cancel my visa is set aside, the re-entry ban will also be removed. I believe that it would be a struggle to re-establish my life again in the UK, as I find it emotionally and physiologically tough being in the UK, as it's a reminder of the tough times I went through, throughout my mum's illness.

    My partner Sean would suffer significant hardship if I was required to leave Australia. We support each other emotionally and financially, so this will cause a lot of hardship. Sean is currently undertaking a carpentry apprenticeship which ends in November 2020, with the intention of one day running his own building company in Sydney. Therefore, he intends to stay in Australia whilst he completes his apprenticeship and leaving for another country is not an option now. He would struggle to find a new employer who is willing to take him on as an apprentice. Sean is 29, and because of his age he struggled to find an employer to take him on as an apprentice. He found it very difficult being rejected from so many companies because of his age, so I would not put him through this process again. Relocating would create a lot of financial and emotional hardship trying to find a new employer for Sean, and he will have to begin his 3 year apprenticeship all over again. I want to avoid jeopardising our ability to live in Australia because of a past visa cancelation.

18. The Tribunal gives this consideration maximum positive 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 visa holder’s control.

19. The Tribunal is satisfied that the circumstances in which ground of cancellation arose were ‘beyond the visa holder’s control’.

20. The Tribunal gives this consideration maximum positive weight against cancellation.

    ·past and present behaviour of the visa holder towards the Department

21. The Tribunal has no evidence of negative behaviour issues towards the Department on the part of the applicant . She appears to have co-operated fully with the Department.

22. The Tribunal gives this consideration some positive weight against cancellation.

    ·whether there would be consequential cancellations under s.140

23. The Tribunal finds that there would not be consequential cancellations under s.140.

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

24. The applicant has a pending Subclass 461 New Zealand citizen (Family Relationship) visa application before the Department which is not finally determined. The Subclass 461 application was made on 9 June 2020. The applicant has explained that because she was cancelled 12 days prior to the expiry of her Subclass 482 visa her associated BVA ceased. She was then granted an associated BVE (Subclass 050) on 23 July 2020. Were the existing 482 visa cancellation to be upheld her Bridging E visa will automatically cease as a result.

1. The Tribunal gives this consideration significant weight against cancelling the visa.

   ·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].)

2. There is no information before the Tribunal to indicate the circumstances of this case are such that they would engage Australia’s international obligations.

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

3. Not applicable.

   ·any other relevant matters

4. The applicant has a concurrent application being processed for a Subclass 461 New Zealand Citizen Family Relationship visa which was lodged on 2 June 2020. She informs that she regards having a visa cancellation as not something she wants on her Departmental migration record.

5. The applicant has informed the Tribunal directly (and separately through her employer) that they are willing to sponsor her for a Subclass 482 visa immediately. She informs that:

   I am still employed in a full-time permanent capacity as an Associate Communications Director within Havas Media. Attached is a letter from Havas Media, explaining their intention to sponsor me, based on a favourable decision at the AAT.

   The Labour Market Testing for my role has now been completed and Havas are awaiting the outcome of my case before submitting a subclass 482 application.

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

   DECISION

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

   Michael Cooke
   Senior Member