1510375 (Migration)

[2016] AATA 4229

1510375 (Migration) [2016] AATA 4229 (28 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ROHIT SEHDEV

CASE NUMBER:  1510375

DIBP REFERENCE(S):  BCC2015/353485

MEMBER:Antonio Dronjic

DATE:28 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 28 July 2016 at 2:50pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 July 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(1)(b) on the basis that the applicant breached condition 8107(3)(b) as the period during the applicant ceased employment exceeded 90 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.

   Background to the cancellation of the applicant’s visa

3. The decision record of 27 July 2015 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The tribunal summarises those reasons and findings as follows:

   ·On 20 September 2013, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 20 September 2017;

   ·The standard business sponsor who most recently (22 July 2013) successfully nominated the applicant to work as an Accountant was Accounting Options Victoria Pty Ltd;

   ·The department was notified of cession of the applicant’s employment at Accounting Options Victoria Pty Ltd on 13 January 2014. It was stated that the applicant ceased his employment on or about 10 January 214;

   ·On 2 March 2015, a new business nomination was lodged by Unicross Nominees Pty Ltd, nominating the applicant for a position of an Accountant. This nomination was refused by the Department on 4 June 2015;

   ·A notice of intention to consider cancellation (‘NOICC’) was issued by the Department on 7 July 2015;

   ·On 9 July 2015, the department received email from the applicant’s representative advising that on 29 June 2015 a new business nomination application was lodged by Unicross Nominees Pty Ltd, nominating the applicant for a position of an Accountant;

   ·On 27 July 2015, the delegate proceeded to cancel the applicant’s visa.

4. The applicant applied to the tribunal on 31 July 2015 for review of the visa cancellation and with his application submitted a copy of the primary decision record.

5. On 14 December 2015, the tribunal (differently constituted) wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 15 January 2016.

6. On 7 January 2016, the applicant’s representative submitted the following relevant documents:

   ·Skill Assessment letter issued by CPA Australia dated 30 November 2015 as evidence that the applicant is academically suitable for migration under ANZSCO 221111- Accountant (general);

   ·Copy of the applicant’s PTE Score Report  dated 11 November 2015 as evidence of his English language proficiency;

   ·Copy of the applicant’s educational certificates; and

   ·The applicants Resume.

7. The applicant appeared before the tribunal on 15 January 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the tribunal hearing. At the commencement of the hearing, the applicant’s representative submitted an undated offer of employment from Unicross Nominees Pty Ltd; offering the applicant position of an Accountant.

8. The tribunal informed the applicant that his visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that he had not complied with the condition of his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceeded 90 consecutive days.

9. The applicant is a 34 years of age national of India. He is married and his wife is a student visa holder. He confirmed that he ceased employment at Accounting Options Victoria Pty Ltd on or about 10 January 2014. He stated that he lost his employment because he refused to manipulate financial records and perform some work that was outside the accepted accounting practices.

10. The applicant gave evidence that his new prospective employer, Unicross Nominees Pty Ltd, lodged two business nominations applications with the department, nominating him to work as an Accountant. He stated that both applications were refused by the department. He gave evidence that he worked for Uncross Nominees Pty Ltd from February 2015 for the period of two to three months. In his evidence, the applicant conceded that the ground for the visa cancellation was made out.

11. The tribunal explained to the applicant that, based on the evidence before it, the tribunal is satisfied that he breached the condition of his subclass 457 visa and that the tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

12. The tribunal explained what are considered to be relevant circumstances. The tribunal explained that that the purpose of the applicant’s stay in Australia was to work as an Accountant on a temporary basis.

13. The applicant confirmed in his evidence that he is not currently the subject of an approved business nomination by an Australian business. He stated that he had several interviews with prospective employers. In December 2015 he had preliminary discussions with HR Block and Monash Tax Services and both companies indicated their willingness to offer him employment. The tribunal inquired if these companies have a status of an approved business sponsor and the applicant stated his belief that they do; as both businesses indicated their willingness to sponsor him for the job.

14. The applicant stated that he holds a bridging visa with work rights but explained that prospective employers are reluctant to employ people who are holding bridging visas.

15. The presiding member decided to adjourn making his decision until 15 February 2016 in order to enable the applicant to provide evidence that his new prospective employer lodged sponsorship and nomination applications with the department.

    Post hearing Correspondence

16. On 23 February 2016, the applicant’s representative wrote to the tribunal advising that the applicant has failed to secure nomination from any accountancy firm; that he is still trying to find the job; that the applicant travelled to Perth for a job interview and that prospective employer is still considering whether to sponsor the applicant. The applicant’s representative enclosed several job applications made by the applicant and asked the tribunal for more time to provide evidence of sponsorship and nomination application being lodged by the applicant’s prospective employer.

17. On 29 March 2016, the tribunal wrote to the applicant advising that the presiding member agreed not to proceed to his decision until 12 April 2016.

18. On 11 April 2016, the applicant’s representative submitted the acknowledgment letter from the Department dated 11 April 2016 as evidence that the applicant’s new prospective employer The Trustee for Apextax & Accounting Solution lodged an application for approval of business sponsorship.

19. On 12 April 2016, the tribunal wrote to the applicant advising that the presiding member agreed not to proceed to his decision until 9 May 2016.

20. On 11 May 2016, the tribunal wrote to the applicant advising that the presiding member intend to proceed to his decision on or after 16 May 2016.

21. On 24 June 2016, the applicant’s representative wrote to the tribunal advising that Apextax & Accounting Solution lodged both sponsorship and nomination applications on 11 April 2016 and are still awaiting the decision from the department.

22. On 24 June 2016, the tribunal wrote to the applicant advising that the presiding member agreed not to proceed to his decision until 29 June 2016.

23. On 5 July 2016, the matter was reconstituted to a different tribunal.

24. On 25 July 2016, the tribunal officer contacted the applicant’s representative to inquire if the department made decision on sponsorship and nomination applications lodged by Apextax & Accounting Solution on 11 April 2016.

25. On 25 July 2016, the applicant’s representative wrote to the tribunal advising that sponsorship application lodged by Apextax & Accounting Solution was refused by the department on 20 July 2016. The representative enclosed a copy of the sponsorship refusal Decision Record. The representative stated that they are unsure about the status of nomination application; that, according to online application the status is finalised.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. 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?

28. 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, which was granted on 20 September 2013, and which, but for its cancellation, was valid to 20 September 2017.

29. This condition in 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.

30. Based on the evidence before it, including the oral evidence from the applicant, the tribunal finds that the applicant ceased employment with Accounting Options Victoria Pty Ltd on 10 January 2014. The tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the tribunal finds that the review applicant did not comply with condition 8107(3)(b).

31. 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

32. 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’.

33. The tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

34. Nevertheless, the tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the tribunal has also taken into account the submissions and evidence it received from the applicant.

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

35. The tribunal finds that the purpose of the applicant’s stay in Australia was to work as an Accountant on a temporary basis. The applicant lost his job in January 2014. The applicant decided to remain in Australia and try to find a new employer.  However, as of the day of my decision the applicant has not found an Australian company who is an approved standard business sponsor and who successfully nominated the applicant for a position within the business.

36. I note that the department did not proceed with the visa cancellation until they made decision on nomination application lodged in March 2015 by the applicant’s prospective employer Unicross Nominees Pty Ltd. It has been more than 30 months since the applicant ceased his employment with the company that was an approved standard business sponsor and that successfully nominated the applicant for a position of an Accountant within the business.

37. I further note that, despite the evidence that the applicant was not the subject of an approved business nomination in January 2016 when it held the hearing; the tribunal adjourned making its decision for more than six months.

38. Based on the evidence before me, I am satisfied that the applicant was given reasonable opportunity to secure employment with an Australian company who is an approved standard business sponsor and who successfully nominated the applicant for a position within the business. I have also taken into consideration the fact that the applicant’s visa would, but for the cancellation, ceased on 20 September 2017.

39. The tribunal is not disposed to delay making a decision indefinitely. I have taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[3] and Manna v Minister for Immigration and Citizenship[4] where the Courts have held that the tribunal is not required to indefinitely defer its decision-making processes.

    [3] [2002] FCA 617

    [4] [2012] FMCA 28

40. It is uncertain if and when the applicant will become the subject of an approved business nomination. If the tribunal were obliged to await the decision on nomination application relevant to an applicant, the situation could arise whereby an applicant may remain within the immigration system by continuing to seek nomination from different businesses, even though such applications may be continuously refused.

41. I accept that the applicant attempted to find another sponsoring employer. However the purpose of granting a subclass 457 visa is not to enable the visa holder to live in Australia and look for employment opportunities. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor in January 2014. I give significant weight to this consideration.

    The reason for and extent of the breach

42. The applicant’s visa was subject to 8107 condition. He was represented by a migration agent during the review process. I am satisfied on the evidence before me that the applicant was aware of the condition imposed on his 457 visa.

43. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in January 2014. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that successfully nominated the applicant for a position within the business within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. In this case, I accept that the applicant took steps to commence employment with another sponsoring employer. However, as of the day of this decision, the applicant had already being without sponsor that successfully nominated the applicant for a position within the business for more than 30 months. I find that the applicant’s failure to commence employment with a new business sponsor that successfully nominated the applicant for a position within the business after 30 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose.

44. Whilst the tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

    Past and present conduct of the visa holder towards the department

45. There is no evidence before me that the applicant previously breached visa conditions or that he was not co-operative with the Department.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

46. There is little evidence before the tribunal to indicate that the visa cancellation would cause hardship to the applicant. I accept that leaving Australia may involve some hardship to the applicant, but I am of the view that this hardship would not be significant. I do not accept that the applicant would not be able to re-establish himself in India, given his employment background and experience.

47. Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant came to Australia on temporary visa which create no expectation of remaining in Australia permanently. The 457 visa would have ceased in September 2017 in any event. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

48. In any event, the applicant is not prevented from re-applying for 457 visa once he finds the new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

    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

49. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

50. The tribunal is mindful that Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

    Whether there would be consequential cancellations under s.140

1. The tribunal notes that there are no consequential cancellations of visas for the applicant’s wife.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

2. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

3. There is little in the evidence before the tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

   The impact on any victims of family violence

4. There is no evidence before the tribunal regarding this matter.

5. Having regard to the findings above and the circumstances of the case as a whole, the tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

   DECISION

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

   Antonio Dronjic
   Member