1511156 (Migration)

[2016] AATA 4466

1511156 (Migration) [2016] AATA 4466 (3 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mukhtiar Singh Bhatti

CASE NUMBER:  1511156

DIBP REFERENCE(S):  BCC2014/1560111

MEMBER:Adrian Ho

DATE:3 October 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 03 October 2016 at 2:53pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 August 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(b) on the basis that the applicant had ceased the employment for which his Subclass 457 visa was granted for more than 90 days in breach of paragraph 8107(3)(b) of Condition 8107.

3. The applicant appeared before the Tribunal on 12 September 2016 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

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?

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 attached to the applicant’s visa. This condition applies specifically to the holders or former holders of Subclass 457 work visas. It requires, among other things, that if the applicant ceases employment – the period during which the applicant ceases employment does not exceed 90 consecutive days.

8. At hearing the tribunal explained the ground of cancellation and relevant content of condition 8107 and s.116(b).

9. In discussion with the tribunal, the applicant gave the following evidence:

   a.He had ceased employment with his then sponsor, BSH Bakery, in September or October 2013;

   b.He was not aware of the requirements of condition 8107 at the time;

   c.When advised of the content of condition 8107, he agreed he was in breach of condition 8107;

   d.The visa allowing him to work for BSH Bakery was granted on 28 February 2013;

   e.He arrived at his work site in April that year and was told there was no work to do;

   f.He expected there to be a bakery, but there was no bakery;

   g.He was told to make curry puffs and deliver them to restaurants;

   h.He was paid for a couple of weeks, but then the sponsor asked him for money to use to build a bakery, and stopped paying him;

   i.He did not advise the Department that there was no bakery and that he was not being paid;

   j.He ceased that employment and lived off the support of friends;

   k.He is 32 years old now;

   l.He has no partner and no children;

   m.In India he has his parents, grandparents and brother;

   n.The family in India depends on him and he sends around AUD 1000 back home a month;

   o.It would be hard to move back to India after 8 years here;

   p.He had no comment on the proposition that his bridging visa might expire if the tribunal made a negative decision;

   q.He acknowledged that the tribunal was to decide the separate matter in which DEEPAK FASTENERS (AUSTRALIA) PTY LTD (AAT file number 1419921) (the sponsor) sought review of a decision not to approve its nomination of the applicant, but did not wish to make any comment about that matter;

   r.He confirmed that no other sponsor was seeking to nominate him, and there was no nomination application identifying him pending with the Department;

   s.He confirmed that he presently had no relevant nomination which had been approved and had not ceased;

   t.He understood the tribunal’s suggestion that under the Act and Regulations, the only permitted purpose of the applicant’s Subclass 457 visa is to work for the sponsor in the position and occupation which had been nominated and approved;

   u.He understood a suggestion that if there was no approved nomination identifying him, if the visa were reinstated, he would within a short period of time again be in breach of condition 8107.  

10. Neither the applicant or the representative put forward any further matters to be considered and the representative noted that the matter turned on whether the nomination by the sponsor, Deepak, was approved or not.

11. On 14 September 2016 the tribunal affirmed the decision not to approve the nomination of the sponsor in tribunal matter 1419921.

12. The tribunal then wrote to the applicant in the following terms:

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR MUKHTIAR SINGH BHATTI

    I am writing about your application for review of a decision to cancel a Temporary Business Entry (Class UC) visa, Subclass 457 held by you.

    In support of your wish for the tribunal not to affirm the decision to cancel your 457 visa an Australian business nominated an occupation in relation to you.

    The only purpose for you to hold a 457 visa is to work in a position identified in a nomination which has been approved, and which has not ceased.

    Invitation to comment on or respond to information

    The Tribunal has information that it considers would, subject to any comments or response you make, be the reason, or part of the reason, for affirming the decision that is under review. The purpose of this letter is to invite you to comment on or respond to the information.

    On 14 September 2016 the tribunal affirmed a decision by a delegate of the Minister not to approve a business nomination in relation to you sought by DEEPAK FASTENERS (AUSTRALIA) PTY LTD (AAT file number 1419921).

    This information is relevant to the Tribunal’s review because it suggests that there is no approved nomination in relation to you for a position in which you can work in a manner which will allow you to comply with 457 visa conditions.

    The information, if accepted and relied upon by the Tribunal, may lead the Tribunal to affirm the decision to cancel your 457 visa.

    If relied upon in this way, subject to any comments or response you make, the information would be the reason, or part of the reason, for affirming the decision under review not to grant you the visa.

    You are invited under s.359A to give comments on or respond to the above information in writing.

    Your comments or response should be received by 29 September 2016. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 29 September 2016, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 29 September 2016 and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

13. The applicant did not respond, nor did the applicant seek an extension of time.

    Ground for cancellation

14. The applicant conceded in evidence that he had ceased (around October 2013) employment with BSH Bakery in the position nominated and approved for his 457 visa.

15. The tribunal accepts this evidence and finds that he has ceased employment for more than 90 days in breach of condition 8107 both at the time his visa was cancelled in August 2015, and now.

16. For these reasons, the Tribunal is satisfied that the applicant has breached condition 8107 and the ground for cancellation in s.116(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

17. 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’.

18. On the evidence, as the employment for which the applicant’s visa was granted ceased now around 3 years ago the applicant has had sufficient time to make arrangements to depart Australia in the event that he will become an unlawful non-citizen as a result of cancellation, or alternatively, the applicant has had sufficient time to seek a new sponsor and an approved nomination so as to place himself in a position to comply with condition 8107 of his visa. 

19. The applicant pursued the latter course and the Department refused to approve the nomination of the sponsor, Deepak, and the tribunal affirmed that decision, explained the consequences of an affirmation by the tribunal of that decision at hearing, and then invited the applicant to comment or respond to information that the tribunal had affirmed the decision not to approve the nomination of the sponsor.

20. As explain at hearing, the purpose of the applicant’s stay in Australia on a Subclass 457 visa is to work for a standard business sponsor in a position approved through the nomination process.  There is no other permitted purpose in holding a 457 visa.

21. The applicant’s original approved employment has ceased and there is now no position, approved through the nomination process, based on which he would now meet the criteria for a Subclass 457 visa, or based on which he could continue to meet condition 8107 were the visa reinstated.

22. As the employment in the position approved for BSH Bakery has ceased for more than 90 days, were the visa reinstated, the applicant would be in breach of condition 8107 and his visa would be rendered, again, subject to cancellation under s.116(b).

23. On the evidence, there are no children or other members of the applicant’s family unit that will be affected by consequential cancellations.

24. The tribunal acknowledges that after 8 years in Australia the applicant may find it difficult in the event he had to return to live in India and his family in India have been depending on him for remittances from Australia. 

25. The tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end.  The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa, and by other family members of such a person.

26. In this case the applicant, and other members of the applicant’s family, have had a long duration in which to prepare for departure if that is the ultimate result.  Alternatively, the applicant has had ample time in which to seek an alternative lawful basis of further stay in Australia.

27. The past conduct of the applicant with the Department has been cooperative.

28. On the evidence, there are no particular circumstances of hardship that will result from cancellation, other than the natural consequences of the ending of a temporary stay noted above.

29. On the evidence, cancellation will not result in Australia being in breach of its international obligations.

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

    DECISION

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

    Adrian Ho
    Member