1514564 (Migration)

[2016] AATA 3802

1514564 (Migration) [2016] AATA 3802 (26 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss NEERAJ PANDEY

CASE NUMBER:  1514564

DIBP REFERENCE(S):  BCC2015/353599

MEMBER:Karen Synon

DATE:26 April 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 26 April 2016 at 3:41pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 October 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 had not complied with Condition 8107(3)(a)(ii). 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 applied for review of the decision to cancel her visa on 28 October 2015 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

4. The applicant was represented in relation to the review by her registered migration agent.

5. On 17 March 2016, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     Departmental records indicate that:

   o    On 26 June 2013 the Department approved a nomination lodged by YABS PTY LTD AFT YABS FAMILY TRUST for a ‘Graphic Pre-press Trades Worker’ in your favour (‘the approved nomination’);

   o    On 7 January 2014 the Department granted you a temporary Business Entry (Class UC) subclass 457 visa that was subject to mandatory conditions 8107 and 8501…

   o    On 20 March 2015 department officers from the Program Integrity Unit (Victoria) visited RS & JS Pty Ltd at 77 Swan Street, Richmond and found you working at that address in breach of Condition 8107.

   o    On 31 August 2015 the Department issued you with a Notice of Intention to Consider Cancellation (‘NOICC’) on the basis that on 20 March 2015 you were working in breach of your visa Condition 8107 for another employer RS & JS Pty Ltd and that there was no evidence that RS & JS Pty Ltd is an associated entity of your sponsor YABS PTY LTD ATF YABS FAMILY TRUST.  This indicated that you had been working for an employer other than your sponsor in the most recently approved nomination, or an associated entity of that sponsor and, if correct, your visa may be cancelled because you had not complied with paragraph 3(a)(ii) of Condition 8107.

   o    In this NOICC the Department also invited you to indicate why you thought the ground for cancellation did not exist and to put forward any reasons why you felt your visa should not be cancelled.

   You did not respond to the NOICC.

   This information is relevant to the review for the following reasons:

   ·     The Tribunal may find that your occupation, ‘Graphic Pre-press Worker, is not a specified occupation for the purposes of paragraph 8107(3A);

   ·     Consequently, the Tribunal may find that you must meet the requirements of paragraph 8107(3)(a)(ii);

   ·     Given the information before it, the Tribunal may find that during the period you held your subclass 457 visa you did not only work in the position in the business of the sponsor or an associated entity;

   ·     As a result, the Tribunal may find that you did not comply with paragraph 8107(3)(a) of your subclass 457 visa and that, therefore, there is a ground for cancellation of your visa under paragraph 116(1)(b) of the Act; and

   ·     Unless the Tribunal is satisfied that it should exercise its discretion not to cancel your subclass 457 visa;

   ·     Then, if the Tribunal makes these findings then it would have no option other than to affirm the decision under review.

   You are invited to give comments on or respond to the above information in writing.

   You are also invited to provide the following information in writing:

   ·Information that confirms for the purposes of the exercise of the Tribunal’s discretion regarding the cancellation of your subclass 457 visa:

   o    reason and extent of your breach of visa condition 8107;

   o    the degree of hardship that may be caused to you;

   o    the circumstances in which the ground of cancellation arose;

   o    your past and present conduct towards the department;

   o    any mitigating, compassionate and compelling factors;

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

   o    the impact on any victims of family violence; or

   o    any other relevant matters you feel the Tribunal should take into account.

6. The invitation was sent to the applicant’s representative’s email address provided in connection with the review.  The applicant was advised that if a response or comments were not provided in writing by 31 March 2016, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant did not provide comments or a response within the prescribed period and no extension was been sought or granted within the prescribed period.

8. However, on 1 April 2016, the applicant’s representative sought an extension of 2 weeks for submitting the required documents.  The applicant’s representative was advised by email later on 1 April 2016 that the request for an extension of time was not received within the prescribed period as the due date for a response or a request for an extension of time was 31 March 2016.  The matter was referred to the presiding Member.

9. On 5 April 2016, after consideration by the presiding Member, a further email was sent to the applicant’s representative advising that while the Member was unable to provide an extension of time as the request was received after the prescribed period, the Member would delay finalisation of the decision until 12 April 2016 and consider any further submissions received by 11 April 2016.

10. No comments, response, information or submissions have been received at the date of this decision.

11. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via her authorised recipient at his advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

12. In making this decision the Tribunal notes that the applicant also did not respond to the department’s Notice of Intention to Consider Cancellation letter.

13. 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

14. 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?

15. 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. Condition 8107(3)(a)(i) relevantly requires that the holder ‘must work only in the occupation listed in the most recently approved nomination for the holder’ and Condition 8107 (3)(a)(ii) relevantly requires that the holder ‘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’.

16. On the basis of the information before it from the department records (and as detailed to the applicant in accordance with s.359), the Tribunal finds that the applicant was granted a subclass 457 visa on 7 January 2014 to occupy the position of ‘Graphic Pre-press Trades Worker’ at YABS PTY LTD ATF YABS FAMILY TRUST.  The Tribunal therefore finds, based on this information, that the occupation listed in the most recently approved nomination for the applicant is that of ‘Graphic Pre-press Trades Worker’.

17. The Tribunal finds that the applicant’s occupation of ‘Graphic Pre-press Trades Worker’ (ANZSCO Code 392211) is not a specified occupation for the purposes of paragraph 8107(3A).

18. On 31 August 2015 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of her Subclass 457 visa.  The grounds for cancellation were that the applicant had not complied with the Condition contained in paragraph 8107(3)(a)(ii) because on 20 March department officers visited the premises of RS & JS Pty Ltd at 77 Swan Street, Richmond and found her working at that address, for another employer, and there was no evidence to indicate that RS & JS Pty Ltd is (was) an associated entity of YABS PTY LTD ATF YABS FAMILY TRUST.

19. The primary decision records that the applicant did not respond to the department’s NOICC and nor did the applicant give comments or respond to the information put to her in accordance with the provisions of s.359A and s.359(2) of the Migration Act.

20. Therefore. relying on the information before it and in the absence of any other evidence provided by the applicant, the Tribunal is satisfied that the applicant was working for an employer other than her sponsor YABS PTY LTD ATF YABS FAMILY TRUST, namely RS & JS Pty Ltd in breach of visa Condition 8107(3)(a)(ii).  Further, as there is no information before the Tribunal that the applicant subsequently resumed her employment with YABS PTY LTD ATF YABS FAMILY TRUST, it finds that during the period she held her subclass 457 visa the applicant did not only work in a position in the business of her standard business sponsor, YABS PTY LTD ATF YABS FAMILY TRUST, or an associated entity of YABS PTY LTD ATF YABS FAMILY TRUST.

21. The Tribunal accordingly finds that the applicant has not complied with Condition 8107(3)(a)(ii) of her Subclass 457 visa.

22. 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

23. 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’.

24. The applicant has not provided any evidence to the Department or the Tribunal as to why her visa should not be cancelled.  She did not respond to the NOICC and nor did she respond to the Tribunal’s invitation issued under section 359(2).

25. Accordingly there are no submissions from the applicant in relation to the factors set out in PAM3.  While the applicant did provide copies of some bank account records in support of a request for a fee reduction these are not relevant to this consideration.

26. While the applicant appears to have been in Australia to work for the sponsor (YABS PTY LTD ATF YABS FAMILY TRUST) as a Subclass 457 visa holder, she is no longer in that employment.  There is no evidence to indicate that she is currently the subject of an approved nomination for any other employer and she has not availed herself of the opportunity provided by either the department or the Tribunal to provide any relevant information as to her current employment situation.

27. On the evidence before the Tribunal this appears to be the only time a visa condition has been breached.  There is no evidence to indicate the applicant has been uncooperative with the Department.

28. There is no information before the Tribunal that the applicant, or anyone on her behalf, has indicated to the Department or the Tribunal that she, or anybody else, will suffer any hardship if the visa is cancelled.  There does not appear to be any consequential cancellations.  There is no evidence to suggest that the applicant fears returning to her home country, India, or that any international obligations would be breached as a result of a cancellation.

29. Overall the Tribunal is of the view that the appropriate decision is to cancel the applicant's visa.  The Tribunal is mindful that the purpose of the Subclass 457 visa is to fill temporarily a skill shortage.  There is no evidence before the Tribunal to satisfy it that applicant currently has an approved or pending nomination in place to work in a skilled occupation.  There has been no information provided for any compelling need for the applicant to remain in Australia.  It is not aware of the circumstances in which the ground for cancellation arose.  It is satisfied that the applicant has had invitations to provide to the department and the Tribunal any evidence to indicate the ground for cancellation arose in circumstances beyond her control.  She has not taken advantage of these opportunities.  While there is no evidence to suggest the applicant has breached other visa conditions or been uncooperative with the department, she has not availed herself of the opportunity to give evidence as to why the visa should not be cancelled.  The Tribunal is satisfied there are no other consequential cancellations to take into account.  It is satisfied that international obligations will not be breached as a consequence of a cancellation.  It is not satisfied the applicant, or anyone else, will suffer hardship because of a cancellation.  Nor is the Tribunal aware of any particular extenuating or compassionate circumstances affecting the applicant which outweigh the grounds for cancelling the visa.  Further, there is no evidence before the Tribunal that the applicant’s removal would be in breach of Australia's non-refoulement obligations.

30. The Tribunal finds that the purpose of the applicant's stay in Australia was to work as a Graphic Pre-press Trades Worker for YABS PTY LTD ATF YABS FAMILY TRUST on a temporary basis.  The applicant is no longer in this employment.

31. The purpose of granting a subclass 457 visa is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.  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 was found to be working for another employer, JS & RS Pty Ltd on 20 March 2015 and gives this factor significant weight.

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

    DECISION

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

    Karen Synon
    Member

    
    

    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:

    (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; and

    (aa)  subject to paragraph (c), the holder must:

    (i) if the holder was outside Australia when the visa was granted—commence work within 90 days after the holder’s arrival in Australia; and

    (ii) if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted; 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: 

    (i)  must hold the licence, registration or membership while the holder is performing the occupation; and

    (ii)  if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and

    (iii)  if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and

    (iv)  must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and

    (v)  must comply with each condition or requirement to which the licence, registration or membership is subject; and

    (vi)  must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and

    (vii)  must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.

    (3A)  For subparagraph 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.

    (3B)  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(8):

    (a)  the holder must work only in the occupation or position in relation to which the visa was granted; and

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