1506081 (Migration)

[2015] AATA 3050

1506081 (Migration) [2015] AATA 3050 (15 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunil Hamal

CASE NUMBER:  1506081

DIBP REFERENCE(S):  BCC2015/869498

MEMBER:Fraser Syme

DATE:15 July 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 15 July 2015 at 10:49am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 April 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Business (Long Stay)) 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 8107(3)(b) of the subclass 457 visa he previously held. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant included the delegate’s decision record with the review application.

3. The applicant appeared before the Tribunal on 10 July 2015 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing and provided written submissions attaching additional supporting evidence prior to and after the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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(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

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 was attached to the applicant’s visa. The requirements of this condition include 8107(3)(b) that if the a visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. An extract of condition 8107 is attached to this decision.

8. The decision of the delegate sets out that:

   a.The applicant was granted a subclass 457 visa on 31 July 2014 (valid until 31 July 2018) under an approved nomination of his former sponsoring employer, Xiaojie Wu (“Wu”). The visa conditions on that visa included condition 8107;

   b.Wu notified the department on 24 November 2014 that the applicant ceased employment on that date;

   c.The delegate sent to the applicant a notice of intention to consider cancellation (“NOICC”) of the applicant’s subclass 457 visa on 27 March 2015;

   d.The applicant replied on 31 March 2015 stating he did not agree a ground for cancellation existed. He alleged Wu exploited him and he became frightened of obtaining a new sponsor. He added that he had several potential employers willing to sponsor him;

   e.Although he was permitted additional time to do so, as at the time of the delegate’s decision, the applicant had not obtained any new approved nomination in relation to him nor had he obtained grant of another visa.

9. In the pre-hearing submission, the migration agent submitted the applicant was unemployed for more than 90 consecutive days and therefore, the applicant had not complied with condition 8107 of his former visa. At the hearing, the applicant confirmed he conceded he had not complied with condition 8107.

10. For these reasons, the Tribunal is satisfied the applicant has not complied with a condition of his former visa and 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

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. [1]

    [1] ^[1] PAM3 ‘Compliance and Case Resolution – Cancellation – General visa cancellation powers (s109, s116, s128 & s140)’ at [32.2] (version as at 23/8/14).

12. The Tribunal considers the circumstances relevant in the case of the applicant are:

    • the purpose of the visa holder’s travel and stay in Australia

13. The purpose of the subclass 457 visa is to permit the applicant to work in a nominated position for an approved sponsor. The Tribunal considers that the applicant has not worked with the approved sponsor since November 2014 weighed in favour of cancelation of his visa.

14. The applicant has provided evidence of his being subject of a nomination by a new approved sponsor, Empire Holdings Pty Ltd (“Empire”). Empire first applied to the department for approval to nominate the applicant on 23 April 2015. The department refused that application on 13 May 2015. Empire made a second application to nominate the applicant on 28 June 2015, that application remains outstanding. The Tribunal agreed to the applicant’s request to wait 28 days for the outcome of Empire’s second application to nominate him.

15. The migration agent submitted Empire’s first application to nominate the applicant was relevant in another aspect. After receiving the applicant’s response to the NOICC, the delegate allowed the applicant 7 days within which to provide evidence of a new nomination application being made in relation to him. Empire’s first application was made on the eighth day, but the migration agent provided evidence of the first application to the delegate prior to the decision to cancel the applicant’s former visa. Therefore, the finding of the delegate that the applicant had not provided evidence of obtaining a new nomination in relation to him was flawed.

16. At the hearing, the Tribunal agreed the delegate’s decision had failed to take into account the evidence of Empire’s first nomination application, but that was just part of the reasons for the delegate’s decision and in any event, the Tribunal was conduction merits review of the cancelation.

    • reason and extent of any breach of a visa condition (if relevant) and circumstances in which ground of cancellation arose

17. The applicant breached condition 8107 because he ceased employment with Wu on 24 November 2014 and thereafter was not employed for more than 90 consecutive days. The applicant alleges Wu exploited him with additional hours of work and underpayment. He states he left employment after an alleged incident where he was forced to work although he was not fit to work after injuring his hand.

18. At the hearing, the applicant explained the payslips he provided to the department reveal he worked excessive hours (45 rather than 38) and was paid an hourly rate lower than the equivalent of the annual salary of $53,700 he should have been paid. The father of his girlfriend told him he could make a complain to the fair work ombudsman, but he thought it better not to do that until after he had resolved the issues with his visa. The migration agent submitted many Australians are reluctant to make complaints against former employers, and it is a process considerably more difficult for temporary residents. He added the relevant legislation permits an affected employee up to 6 years within which to make a claim against an employer. The Tribunal noted the applicant not making any official complaint regarding his allegations against Ms Wu meant the Tribunal would place less weight on that consideration. In the Tribunal’s view, it appears though on the face of the payslips before it that Ms Wu did underpay the applicant and he worked more than 38 hours each week.

19. The applicant further explained he was fearful of his visa being cancelled after he ceased work with Ms Wu. He did not seek any advice and was unaware he could find a new employer to nominate him. He further stated it took time to find a new employer to trust and that was willing to nominate him.

20. The Tribunal accepts the reason for the applicant’s breach of condition 8107 was that he had an unhappy employment relationship with Ms Wu and that this affected his willingness to secure employment under a new approved nomination by a different approved sponsor. The Tribunal considers extent of the breach is he remained not employed under an approved nomination from 24 November 2014 until the cancelation of his former visa on 28 April 2015, a period of 155 days. While there are ameliorating reasons for the applicant’s breach, the Tribunal considers those reasons are outweighed by the extent of the breach being far in excess of 90 consecutive days. In reaching that conclusion, the Tribunal is mindful of the first nomination application of Empire on 23 April 2015 – but that application was ultimately unsuccessful and was made 150 days after the applicant ceased work with Ms Wu.

21. The Tribunal considers the reasons and extent of the breach weigh in favour of cancelling the applicant’s visa.

    • degree of hardship that may be caused

22. The applicant stated his Australian citizen girlfriend, his permanent resident sister and her husband would suffer hardship if his visa was cancelled. The implication of this is they would miss him if he departed Australia. The applicant further raised the home of his parents was damaged in the recent Nepal earthquake, but that his parents were now in safe accommodation. The migration agent referred to the importance of remittances to Nepal.

23. The Tribunal accepts that the applicant’s girlfriend, sister and brother-in-law may suffer some distress if the applicant’s visa cancelled and he must depart Australia. That distress weighs in favour of not cancelling the applicant’s visa.

    • past and present conduct of the visa holder towards the department

24. The applicant told the Tribunal he had a former student visa cancelled because he changed course provider, however, the department re-instated the applicant’s visa. The information before the Tribunal does not otherwise indicate any past or present conduct of the applicant which would weigh in favour of cancelling the applicant’s visa.

    • if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

25. The applicant’s breach is not related to r.2.43(1)(la).

    • whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

26. The applicant conceded there is no possible consequence of indefinite detention if his visa is cancelled.

    • whether there would be consequential cancellations under s.140

27. The applicant agreed there are no secondary visa holders who would be subject to cancellation under s.140.

    • whether any international obligations would be breached as a result of the cancellation

28. The applicant agreed there are no international obligation that would be breached in the visa was cancelled.

    • the impact on any victims of family violence

29. The applicant agree he has no issues of family violence

    • any other relevant matters raised by the visa holder.

30. The applicant raised the issue of the Empire’s second nomination, which was outstanding as at the date of the Tribunal hearing. The Tribunal indicated an approved nomination may weigh in favour of not cancelling his visa, and refusal of the nomination may weigh in favour of cancelling his visa. But the outcome of the nomination would be only one of the considerations the Tribunal would balance in determining how to exercise its discretion.

31. On 15 July 2015, the migration agent provided to the Tribunal notification the department of approved Empire’s second nomination of the applicant on 14 July 2015. The Tribunal considers the existence of the approved nomination weighs in favour of not cancelling the applicant’s visa. Firstly, because impliedly from Empire seeking to employee the applicant is Empire’s need for his skills. Secondly, the applicant now being the subject of an approved nomination would mean he is able to resume compliance with the conditions of his visa and would again be resident in Australia for the purpose of his visa, that is, to work in an approved nominated position for an approved sponsor.

32. Balancing all of these factors, the Tribunal places significant weight on the existence of a current approved nomination of Empire in relation to the applicant as a reason not to cancel his visa.  Particularly given the decision of the delegate failed to take into account the existence of Empire’s first nomination application. Weighing in favour of cancelling the applicant’s visa is that he was not employed for 155 days, which in the Tribunal’s view is substantially more than the 90 limit imposed in condition 8107.  The Tribunal accepts that was due to his unhappy employment relationship with Ms Wu. However, his not making any official complaint about that means the Tribunal places lesser weight on this aspect. The Tribunal accepts that experienced caused the applicant fear, which added to the delay in seeking an alternate employer to nominate him, but that was something within the control of the applicant and the evidence before the Tribunal does not suggest he had any medical condition underlying his fear during that period. The Tribunal accepts that the applicant, his girlfriend, his sister and his brother-in-law would experience some hardship if his visa was cancelled and he return to Nepal given the amount of time he has spent in Australia, the cost and separation. The Tribunal considers the hardship to the applicant is outweighed by his obligation to otherwise comply with the conditions of his visa, which he did not.  Considering the matters raised by the applicant singularly and cumulatively, the Tribunal concludes the preferable decision in this case is that the applicant’s visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Fraser Syme
    Member

    
    

    Attachment – Condition 8107

    8107

    …

    (3)      If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)      the holder:

    (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)      unless the circumstances in subclause (3A) apply:

    (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

    (C)      if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor.

    [associated entity is defined in reg 2.57(1) for Part 2A - it is used but not defined in condition 8107 - LEGEND note]

    (aa)      the holder must commence that work within 90 days after the holder’s arrival in Australia; and

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and

    (c)      if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:
         (i)      hold the licence, registration or membership; and
         (ii)      comply with each condition or requirement to which the licence, registration or membership is subject.

    (3A) …