1508920 (Migration)

[2015] AATA 3592

1508920 (Migration) [2015] AATA 3592 (4 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harinder Singh -

CASE NUMBER:  1508920

DIBP REFERENCE(S):  BCC2015/1449077

MEMBER:David Dobell

DATE:4 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa

Statement made on 04 November 2015 at 2:48pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 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). The applicant was represented in relation to the review by his registered migration agent.

2. The delegate cancelled the visa under s.116(1)(b) on the basis of a breach of condition 8107. 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 30 October 2015 by video to give evidence and present arguments.  

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CLAIMS AND EVIDENCE

5. From the Department movement records the applicant arrived in Australia in 2009 on a subclass 572 visa and was granted a subclass 457 visa on 10 May 2013.

6. The Department had information that the applicant had worked as a taxi driver in Darwin over a period of time when he should have been working as a salon manager and interviewed him. He denied working as a taxi driver.

7. A notice of intention to cancel visa was sent to the applicant on 19 June 2015. This stated that he was sponsored by Savan Patel and a nomination was approved on 10 May 2013 for him to work as a salon manager. However, he was not working in the occupation listed in nomination, or in an associated occupation and hence may have been in breach of condition 8107. 

8. The applicant responded on 26 June 2015 and his response was taken into account when the delegate made their decision to cancel his visa. In that he admitted to not telling the truth and he had worked a taxi driver and sets out his reasons and hardship. The Tribunal has also considered this response.

9. At the hearing, the applicant told the Tribunal that he came to Australia in 2009 on a student visa. He was studying in Brisbane, and after a RSMS application did not go through, he sought a subclass 457 visa as a salon manager in Darwin in 2013. This was called Innovative Hair Solutions.

10. Since August 2015 he has been back in Brisbane and has work rights and is working part-time at present.  He has been working as a casual in a restaurant and as a truck driver.

11. The applicant confirmed that he did work as a salon manager and has the payslips to prove it. He confirmed that he did at the same time work as a taxi driver, for a period of around one year beginning at the start of 2014.

12. He said he had a taxi license in Brisbane and wanted to keep that going in the NT as it would be expensive to get again.

13. The Tribunal said that on his own admission the breach has been established, and turned to the exercise of its discretion.

14. He ended up working as a taxi driver because his father had an injury at work in 2013 to his finger and could not work after that and needed surgery. He has had to support both his parents and his two sisters, aged 21 and 24. They are from the Punjab and his parents live in a small village and do not have any land. They did have some, but had to sell it to pay for the finger operation.

15. His mother is also sick and cannot work. One sister is studying and the other is about to marry and he has financial obligations in relation to that.

16. As to how much money he supports them with, he said when he had money he would send A$1,000 a month. However at present he cannot do this. He would either send this by Western Union or send with friends who were returning home.

17. He said his parents also have a debt for the loan they took out for his study in Australia and they had to repay that loan. It is a debt on him and his father. He has also borrowed money off his credit card to send to them. He said the loan debt would be around 900,000 rupees.

18. When he was working in both jobs he was sending his salon manager earnings back to India and was living on his taxi driver earnings, noting it was expensive in Darwin. He said he was under a lot of stress at that time.

19. He confirmed that when he went in to have an interview with the Department he thought it was about his 457 visa work. He was in stress when they asked him whether he had been taxi driving and he denied this, as he was worried what he would do if his visa was cancelled. He came to know this was a serious breach. However after this he decided he should tell the truth.

20. When the Tribunal suggested it may be unable to be satisfied that he is telling the truth now, given his earlier lie, he said he was telling the truth now.

21. He said that if he goes back to India he will have nothing.

22. As to whether he spoke to the Department or a migration agent when he began doing the taxi work he said he sought no advice as he was under pressure and said he asked the owner if he could work and the owner said it was not a problem as he would be working for the same company.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. 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. Relevant here is 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?

24. 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 is attached to the applicant’s visa.

25. Relevantly, this condition requires that the applicant only work in the occupation that he was most recently nominated to work in: 8107(3)(a)(i).  It is not disputed that this was the occupation of salon manager.

26. The applicant has admitted to working at the same time as a taxi driver over a period of around one year, commencing in 2014. This is consistent with the evidence the Department had before it. Based on this evidence the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists.

27. 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

28. 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’. This refers to:

    ·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

    • the extent of compliance with visa conditions
    • degree of hardship that may be caused (financial, psychological, emotional or other hardship)
    • 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
    • past and present conduct of the visa holder towards the department
    • if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors
    • whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
    • whether there would be consequential cancellations under s.140
    • whether any international obligations would be breached as a result of the cancellation
    • any other relevant matters.

29. The applicant has come to Australia some 5 years ago as a student, with the long-term intention of obtaining permanent residency and citizenship. Five years later he is facing cancellation of a temporary subclass 457 visa. Needless to say, he has so far not been successful in obtaining permanent residency through the usual pathways.

30. The extent of his non-compliance is quite serious. He has worked in contravention of condition 8107 for a year and may well have continued to do this had he not been detected by the Department.

31. The applicant had his reasons for doing this. His family is suffering financial hardship at home in India and he needs to support them. His father is unable to work because of an injury. His sister is about to marry and he has financial obligations in regards this, and the other sister is studying.

32. Further, when confronted with the information that he was working as a taxi driver he denied this, worrying he would lose his visa.

33. The Tribunal considers the breach to be serious, as is the fact that he lied to the Department about this. He has asked for another chance and said he will not do this again but the Tribunal cannot be satisfied that he is telling the truth about this. The Tribunal considers he has only told the truth because the evidence of him working as a taxi driver was undeniable.

34. It does not accept that his employer said to him at the time that it should be alright to work as a taxi driver, because it is also a business also owned by him. The Tribunal considers this to be a later contrivance to lessen the applicant’s responsibility for the breach. Rather, the Tribunal considered that he needed money and was going to drive the taxi regardless of whether it was right or wrong, hoping he would not get caught.

35. The Tribunal acknowledges the hardship but is not satisfied it is beyond the bounds of what might be expected in a country like India, should a person’s temporary visa be cancelled. In any event it is not sufficient to persuade the Tribunal that it should exercise its discretion in light of the nature of the serious breach and his later lie to the Department.

36. Further, the applicant’s prospects in Australia are not good. He has not provided any evidence of another employer who is willing to sponsor him for a visa at this time.

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    David Dobell
    Member

    
    

    Attachment

    Relevant law as at time of visa grant

    Condition 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 must:

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

    (ii)     unless the circumstances in subclause (3A) apply — work only for:

    (A)     the standard business sponsor, former standard business sponsor, party to a labour agreement or former party to a labour agreement (the sponsor) who nominated the holder in the most recently approved nomination; or

    (B)     if the sponsor is a standard business sponsor or former standard business sponsor who lawfully operates a business in Australia — an associated entity of the sponsor; and

    [associated entity is defined in reg 2.57(1) for Part 2A - see clause 457.111(3) - it is used but not defined in condition 8107 - LEGEND note]

    (b)     if the holder ceases employment — the period during which the holder ceases employment must not exceed 28 consecutive days.

    (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

    [(a) substituted by SLI 2010 133 with effect from 01/07/2010 - LEGEND note]

    [(aa) inserted by SLI 2010 133 with effect from 01/07/2010 - LEGEND note]

    (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.

    [associated entity is defined in reg 2.57(1) for Part 2A - see clause 457.111(3) - it is used but not defined in condition 8107 - LEGEND note]