Wilson (Migration)

[2021] AATA 4995

Wilson (Migration) [2021] AATA 4995 (13 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aaron Lee Wilson

CASE NUMBER:  2104444

HOME AFFAIRS REFERENCE(S):          BCC2020/2408302

MEMBER:Michael Cooke

DATE:13 December 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 13 December 2021 at 12:50pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – applicant ceased employment over 60 consecutive days – effect of the COVID-19 pandemic – employer ceased operations – new employer willing to sponsor applicant – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 8, Condition 8607

CASES

Wan v MIMA (2001) 107 FCR 133    

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 March 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8607(5) because the period during which he has ceased employment had 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.

3. The applicant was represented in relation to the review.

4. 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

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 8507(5) attached to the applicant’s visa. This condition requires the period during which the applicant has ceased employment must not exceed 60 consecutive days.

7. The applicant informed the delegate (in the decision record tendered to the Tribunal by the applicant) in response to the NOICC, that the sponsor liquidated “due to inconsistent workload and overheads – thus leaving [him] in this predicament.” He requested for an extension of time in order for him to find a suitable company to take over his sponsorship visa considering the “unforeseen extreme circumstances” of COVID-19 pandemic that have affected many businesses and individuals.

8. Despite his claims the applicant had been unable to find a new sponsor at the time of the delegate’s decision. Thus was found to be in breach of the condition. He is yet to become the subject of an approved sponsorship at time of writing.

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’.

    Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:

    ·the purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel to or remain in Australia

11. The applicant was granted a Temporary Skill Shortage visa on 23 September 2019 for the purpose of employment with an approved sponsor in a skilled occupation which could not be filled from within the Australian workforce.

    The Department received written notification from the sponsor advising that the applicant ceased employment with the sponsor effective 03 August 2020.

12. In the response to the NOICC, the applicant claimed to the delegate that his sponsoring employer liquidated the company “due to inconsistent workload and overheads – thus leaving [him] in this predicament.” He requested an extension of time for him to find a suitable company to take over his sponsorship visa considering the “unforeseen extreme circumstances” of COVID-19 pandemic that have affected many businesses and individuals. He also claimed that he had recently had positive job interviews and he is hopeful of being offered a contract of full-time work to submit to the Department in the coming weeks.

13. The applicant’s representative has recently informed the Tribunal of the following information:

    Mr Wilson’s Bridging visa E was granted with permission to work on 27 October 2020 and is still in place pending the outcome of this AAT hearing.

    Since the cancellation of Mr Wilson’s visa, Mr Wilson has made positive attempts to find a new sponsor for his visa.

    Mr Wilson has now found a new sponsor, Comtex Group Pty Ltd, a business with which he has previously been employed as an Electrical Engineering Technician in the past.

    Comtex Group Pty Ltd have expressed their willingness to sponsor Mr Wilson.

    Comtex Group Pty Ltd confirm in writing that they intend to lodge a Standard Business Sponsorship application and a 482 nomination application to sponsor Mr Wilson provided his 482 visa cancellation is revoked.

    Comtex Group Pty Ltd employed Mr Wilson in the past and confirm he is a skilled tradesperson who they will be very happy to have reinstated due to his reliability, skill and hard work.

14. Based on the new information before the Tribunal, the applicant’s purpose and activity in Australia is still in line with that for which his current visa was granted.

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

    ·the extent of compliance with visa conditions

16. The Tribunal has no evidence the applicant has not complied with his Bridging visa E conditions. His sole breach is of the condition - the subject of this review.

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

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

18. The applicant has indicated in his response to the NOICC that his intention has been to stay in Australia permanently on completion of his Temporary Skill Shortage visa and to seek Australian permanent residency. This personal dream has been interrupted by the aforesaid ‘circumstances beyond his control’. To affirm the cancellation will patently permanently disrupt the applicant’s future intentions. This would create psychological and financial hardship to the applicant and impact Australia’s recovery from the pandemic

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

    ·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

20. The circumstances which led to the grounds for cancellation were that the applicant ceased employment with the sponsor and has not successfully obtained a new nomination with a new sponsor. Therefore, the period during which the applicant has ceased employment has exceeded 60 consecutive days.

21. In the response to the NOICC, the applicant claimed to the delegate that his sponsoring employer liquidated the company “due to inconsistent workload and overheads – thus leaving [him] in this predicament.” He requested an extension of time for him to find a suitable company to take over his sponsorship visa considering the “unforeseen extreme circumstances” of COVID-19 pandemic that have affected many businesses and individuals. He also claimed that he had recently had positive job interviews and he is hopeful of being offered a contract of full-time work to submit to the Department in the coming weeks.

22. The applicant’s representative has recently informed the Tribunal of the following information:

    Mr Wilson’s Bridging visa E was granted with permission to work on 27 October 2020 and is still in place pending the outcome of this AAT hearing. Since the cancellation of Mr Wilson’s visa, Mr Wilson has made positive attempts to find a new sponsor for his visa. Mr Wilson has now found a new sponsor, Comtex Group Pty Ltd, a business with which he has previously been employed as an Electrical Engineering Technician in the past. Comtex Group Pty Ltd have expressed their willingness to sponsor Mr Wilson. Comtex Group Pty Ltd confirm in writing that they intend to lodge a Standard Business Sponsorship application and a 482 nomination application to sponsor Mr Wilson provided his 482 visa cancellation is revoked. Comtex Group Pty Ltd employed Mr Wilson in the past and confirm he is a skilled tradesperson who they will be very happy to have reinstated due to his reliability, skill and hard work.

23. Based on the new information before the Tribunal, the applicant’s purpose in Australia is still in line with that for which his current visa was granted. The tribunal finds that the circumstances in which the ground for cancellation arose ‘were beyond the applicant’s control’.

24. The Tribunal gives this consideration maximum weight against cancellation.

    ·past and present behaviour of the applicant towards the Department

25. The Tribunal has no evidence of bad behaviour towards the Department.

26. The Tribunal gives this consideration some weight against cancellation.

    ·whether there would be consequential cancellations under s.140

27. Not applicable.

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

28. The Tribunal notes that cancelling the applicant’s visa may result in the applicant being:

    ·an unlawful non-citizen;

    ·detained in immigration detention as under s189 of the Act;

    ·removed from Australia as under s198 of the Act;

    ·be subject to s.48 of the Act which may prevent the visa holder from applying for certain visas while in Australia.

29. Accounting for the above, the Tribunal gives this consideration significant weight against cancellation.

    ·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].)

30. Not applicable.

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

31. Not applicable.

    ·any other relevant matters

32. The applicant has indicated that he diligently sought to find a new potential sponsor and, after the travails of the pandemic, has finally managed to do so. The sponsor has written to the Tribunal indicating its intention to sponsor the applicant if the cancellation were set aside. The applicant appears from the employer support letter to be a very capable and qualified employee.

33. The Tribunal notes press reports of a shortage of skilled labour post-pandemic.

34. The Tribunal give this consideration significant positive weight - especially considering the national interest.

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

    DECISION

36. 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