1507931 (Migration)

[2015] AATA 3264

1507931 (Migration) [2015] AATA 3264 (4 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasbir Singh

CASE NUMBER:  1507931

DIBP REFERENCE(S):  BCC2015/353835

MEMBER:Fraser Syme

DATE:4 August 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 (Temporary Work (Skilled)) visa.

Statement made on 04 August 2015 at 1:25pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 June 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s 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(g) and r.2.43(1)(kb)(iii) on the basis that the delegate was satisfied that despite the grant of a subclass 457 visa to the applicant, the position associated with the nominated occupation is not genuine. 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 appeared before the Tribunal on 23 July 2015 to give evidence and present arguments. Shortly after concluding the hearing, the Tribunal requested the applicant to return to attend a resumed hearing to discuss an additional issue, which he consented to do.

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) non-compliance with visa conditions. 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 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)(a) and (b). Condition 8107(3)(a) requires the applicant must only work in the occupation listed in his most recently approved nomination and must work only in a position in the business of the sponsor or an associated entity of the sponsor. Condition 8107(3)(b) requires 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.

7. The decision record of the delegate sets out:

   a.The applicant was granted a subclass 457 visa on 18 October 2013 under an approved nomination of Brothers Sports Club Bundaberg Inc (“Brothers Bundaberg”) in the nominated occupation of café or restaurant manager.

   b.A site visit by departmental officers Brothers Bundaberg and its ‘associated entity’ East Bundaberg Sports Club (“East Bundaberg”) on 8 May 2014. Staff at both establishments stated the applicant did not work there. On the same date, departmental officers spoke to the applicant via phone, whereupon he claimed he did work for Brothers Bundaberg. It is unclear the nature of the association between the two establishments.

   c.On 3 June 2014 Brothers Bundaberg told the applicant he was supposed to work at its associated entity, but he was unable to do so due to flooding in Bundaberg. On 13 February 2015, Brothers Bundaberg informed the department in writing the applicant had never worked for it.

   d.The delegate sent to the applicant a notice of intention to consider cancellation (“NOICC”) of the applicant’s subclass 457 visa on 8 April 2015;

   e.The applicant replied on 22 April 2015. The applicant did not dispute there are grounds for cancellation. He further stated Brothers Bundaberg told him at the time of grant of his visa in October 2013, he would not commence work until December 2013, due to the premises being damaged by flooding. In January 2014, he returned to India to visit a sick relative for two months. He returned to Australia in March 2014. Brothers Bundaberg told him to attend the next available training session at the Gold Coast in May. It was at this time the department conducted the site visit to Bundaberg. Brothers Bundaberg told him on completion of training, to commence work at East Bundaberg on 16 June. The applicant knew the two entities were somehow related. He worked full-time at East Bundaberg thereafter. He gave a number of reasons why he is unable to provide independent evidence verifying that.

8. The Tribunal discussed with the applicant that to comply with condition 8107, the applicant cannot be unemployed for more than 90 consecutive days, and can only work for the approved sponsor who nominated him for the visa. The applicant told the Tribunal he never worked with Brothers Bundaberg, but did begin work at East Bundaberg in July 2014. Adopting the procedure in s.424AA, the Tribunal put to the applicant information from the departmental file following a site visit by departmental officers to Brothers Bundaberg that Mr G told the department the applicant had not worked for Brothers Bundaberg, but had worked with its associated club, East Brothers since July 2014. The reason given for his not working was the floods in 2013 (sic). The Tribunal also put to the applicant information contained in a letter from Mr K on behalf of Brothers Bundaberg. That letter stated the applicant had never worked for his sponsor. The Tribunal explained information showed the applicant had not worked for his sponsor and that would be part of the reason for the Tribunal to affirm the decision. The applicant chose to respond at the hearing. He agreed with that information. He agreed too that he was unemployed for more than 90 day after the grant of his visa in October 2013 and he agreed therefore he breached his visa condition 8107(3)(b) and that there was a ground to cancel his visa.

9. To comply with condition 8107(3)(b), the applicant cannot be unemployed for more than 90 consecutive days. The applicant was unemployed from the date of grant of his visa in October 2013 to he began working at the assumed associated entity of his sponsor, East Bundaberg in July 2014 The Tribunal finds the applicant has not complied with condition 8107(3)(b).

10. The applicant gave to the Tribunal his bank statements for the period October 2013 to November 2014. He told the Tribunal he had been working at a pizza store and as a cleaner for a couple of months after returning from a trip to India, because he needed money to survive. He agreed he therefore had breached condition 8107(3)(a) that he must only work for his approved sponsor in the position for which he was nominated.  The Tribunal finds the applicant has not complied with condition 8107(3)(a). Furthermore, the Tribunal is satisfied none of the circumstances in 8107(3A) are relevant to the applicant.

11. 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 power to cancel the visa should be exercised.

    Consideration of discretion

12. 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’.

    ·     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 did not work with his approved sponsor between October 2013 and July 2014 weighs in favour of cancelation of his visa.

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

14. The applicant explained the circumstances in which the ground for cancellation arose were that Brothers Bundaberg kept delaying the date he commenced work. He spoke with Mr G when his visa was granted and was told he could start next month. He had similar conversations with Mr G in November and December 2013. In January 2014, Mr G told him Brothers Bundaberg was damaged in floods. The applicant then travelled to India from January to March 2014 to attend the wedding of his brother and see his family (which is inconsistent with his email of 22 April that he visited a sick relative). On return to Australia, Mr G again told the applicant he could start work next month. This continued in April and May until finally in June 2014, Mr G arranged for the applicant to do a short period of training at a café on the Gold Coast then in July 2014 he moved from Brisbane to Bundaberg and began working at East Bundaberg. He remained working there until the decision to cancel his visa. He told the Tribunal if the decision to cancel his visa was set aside, he could resume work at East Bundaberg and would provide evidence that the position was still available to him after the hearing.

15. The applicant was unaware of the structure between Brothers Bundaberg and East Bundaberg. He believed they had the same owner. The Tribunal noted it appeared from the departmental file that Brothers Bundaberg and East Bundaberg were associated entities (the term ‘associated entity’ is defined in r.2.57(1) for Part 2A – to be per the meaning in section 50AAA of the Corporations Act 2001). The Tribunal discussed with the applicant additional information the letter of Mr K to the department. Therein, Mr K states Brothers Bundaberg had not previously handled the matter (which from the context of the letter the Tribunal infers to be its sponsorship and employment of the applicant) in a professional manner and that action had been taken against the previous management (which the Tribunal infers to be Mr G). The Tribunal considered that letter supportive of the applicant’s evidence that Brothers Bundaberg had kept delaying his employment. The applicant commented it was only after the site visit by the departmental officers did Mr G realise the applicant had to work and it was then that Mr G arranged his work at East Bundaberg.

16. The applicant explained he did not know what to do to force Mr G to let him commence work. He spoke with his friends and family who told him just to wait. At the time he did not realise that he was breaching his visa condition. He conceded he made a mistake not to contact the department at this time.

17. The Tribunal considers extent of the breach is the applicant was not employed by his sponsor from October 2013 to July 2014, which is substantially more than 90 days. The Tribunal considers the extent of the breach weighs in favour of cancelling the applicant’s visa. Aggravating that is the applicant’s second breach of condition 8107, by working other than for his sponsored employer when he worked as a driver. For the purpose of this decision, the Tribunal is willing to accept that Brothers Bundaberg and East Bundaberg are associated entities. The Tribunal considers despite his inconsistent evidence regarding the purpose of his visit to India, the applicant generally provided consistent and credible evidence regarding Brothers Bundaberg continuing to delay the commencement of his employment. The letter from Mr K that the ‘matter’ had not been handled professionally by previous management is an admission which supports the applicant’s version of events.  That self-admitted unprofessional conduct of Brothers Bundaberg resulted in the applicant being without an income from October 2013 to March 2014, which to some degree explains why the applicant resorted to other employment so he could financially support himself.

18. After the hearing, the applicant provided a letter from East Bundaberg dated 27 July 2015 stating it was willing to re-employ the applicant to the position of restaurant manager. The Tribunal considers the availability of an immediate job to the applicant weighs in favour of not cancelling the applicant’s visa. What is unclear to the Tribunal as noted above, is the associated entity status between Brothers Bundaberg and East Bundaberg, The delegate made the decision under review on the basis that they were associated entities, the applicant believes that is the case too. However, on the evidence before it the Tribunal is unable to be satisfied they are associated entities. If it is the case they are associated entities the applicant may resume employment immediately, if it is the case they are not associated entities, East Bundaberg will require to be an approved sponsor and have an approved nomination in relation to the applicant for him to resume employment.

    ·     degree of hardship that may be caused

19. The applicant said he and his family would suffer economically if his visa is cancelled. He has lived in Australia for many years and wants to continue living here. The Tribunal accepts it will be of economic detriment to the applicant if the Tribunal affirms the decision. The letter from East Bundaberg refers to difficulty it faces recruiting suitable staff. However, the Tribunal that does not outweigh the other considerations in favour cancelling the applicant’s visa.

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

20. 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

21. 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

22. 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

23. This consideration is not relevant to the applicant.

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

24. The applicant agreed there were not any issues regarding an international obligation that would be breached if his visa was cancelled.

    ·     the impact on any victims of family violence

25. This consideration is not relevant to the applicant.

    ·     any other relevant matters raised by the visa holder.

26. That applicant raised no other issues.

27. Balancing all of these factors, the Tribunal considers the cause and extent of the applicant’s breach of condition 8107 is largely a consequence of Brothers Bundaberg and then East Bundaberg not allowing the applicant to commence working. That changed after the department site visit and the applicant commencing work at East Bundaberg. The Tribunal considers the passive role of the applicant in that situation together with the chance of immediate employment being available to him outweigh the extent and duration of the applicant’s breach of condition 8107.  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

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

    (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)      For subparagraph (3)(a)(ii), the circumstances are that:

    (a)         if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    (aa)      if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

    (b)      the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.