1601762 (Migration)

[2016] AATA 4310

1601762 (Migration) [2016] AATA 4310 (23 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Varundeep Singh
Mrs Harshdeep Kaur

CASE NUMBER:  1601762

DIBP REFERENCE(S):  BCC2016/96431

MEMBER:Antonio Dronjic

DATE:23 August 2016

PLACE OF DECISION:  Melbourne

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

The tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 23 August 2016 at 2:20pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 February 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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.

3. For the purposes of the tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the tribunal has no jurisdiction with respect to the second named applicant.

   Background to the cancellation of the applicant’s visa

4. The decision record of 9 February 2016 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 25 March 2015, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 25 March 2016;

   ·The standard business sponsor who most recently successfully nominated the applicant to work as a Café or Restaurant manager was Rising Group Pty Ltd T/AS Chilly India;

   ·On 1 September 2015, the applicant ceased his employment at Rising Group Pty Ltd;

   ·The department was notified of cession of employment on 19 October 2015;

   ·A notice of intention to consider cancellation (‘NOICC’) was issued 11 January 2016;

   ·On 15 January 2016 the applicant responded in writing to NOICC by stating that the employer was not paying him wages in accordance with the employment agreement; that he reported the matter both to Fair Work Australia and DIBP sponsorship monitoring unit in July 2015; and

   ·On 9 February 2016, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the tribunal on 15 February 2016 for review of the visa cancellation and with his application submitted a copy of the primary decision record.

6. On 4 July 2016, the tribunal 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 23 August 2016.

7. The applicant appeared before the tribunal on 23 August 2016 to give evidence and present arguments. The tribunal began the hearing by explaining the role of the tribunal and the purpose of the hearing. 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.

8. The tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

9. I explained to the applicant that for the purposes of the tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the tribunal is the decision with respect to the first named applicant.  His wife’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of her visa self-executing on the cancellation of the first named applicant’s visa.

10. Mr Singh is 31 year of age citizen of India. He is married and does not have children. His parents and sister live in India. He does not own real estate in India. Prior to arriving in Australia in February 2007 as a holder of a student visa, he had completed the equivalent of year 12 in India. Both of his parents are now retired. In Australia, the applicant has completed a Diploma in Hospitality Management in 2009 or 2010. The applicant’s wife has completed Masters in Physiotherapy in India. She has no siblings and her parents, who also live in India, are retired.

11. In October 2010, the applicant was granted a subclass 457 visa based on his employment as a Restaurant Manager at Chillipady Restaurant. This visa ceased on 4 October 2014. His second 457 visa was granted on 25 March 2015 based on the sponsorship and nomination made by a different employer, Rising Group Pty Ltd (trading as Chilly India) and was, but for the cancellation, to remain valid until 25 March 2016.

12. In his evidence the applicant stated that he ceased employment at Rising Group Pty Ltd in November or December 2015. I noted that according to the primary decision record submitted by the applicant with his review application, he ceased his employment on 1 September 2015 and the employer notified the department of cession of employment on 19 October 2015. He stated that, after he made a complaint to Fair Work Australia, he went back to work but was asked to resign from his job in November or December 2015. I inquired as to why his former employer notified the department of cessation of his employment in October 2015 if he ceased working in November or December 2015. He was unable to provide explanation.

13. He confirmed in his evidence that he was aware that his subclass 457 visa was subject to 8107 condition. He gave evidence that he is currently not sponsored or nominated by any Australian business and that he had been trying to find employment in Australia with no success. He confirmed that he currently holds a bridging visa “E” with no work rights. I asked the applicant how they are financing their stay in Australia considering that none of them is working and that the applicant has been without employment for an extended period of time. He stated that, as a result of his complaint being made to the Fair Work Australia, his former employer paid him a lump sum amount of $20,000 in September 2015.

14. I explained to the applicant that, based on the evidence before me, I am satisfied that he breached the condition of his subclass 457 visa and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances. I explained what are considered to be relevant circumstances.

15. I asked the applicant if there is anything that he wants to raise with the tribunal. He stated that he has been living in Australia for almost 10 years; that he did everything he could to find another sponsoring business and that he will not be able to find employment in India as job prospects are not very good there. I asked if he or his wife made any inquiries about the job prospects in India and the applicant stated that they did not since arriving in Australia.

16. The applicant asked for more time in order to find the new employer in Australia. I considered his request and decided not to delay making decision in this matter. I explained to the applicant that the purpose of granting a subclass 457 visa is not to enable the visa holder to live in Australia and look for employment opportunities. I noted that it is uncertain if and when the applicant will find a new employment in Australia and become the subject of an approved business nomination. I noted that the tribunal is not disposed to delay making a decision indefinitely. It has been approximately nine months since he ceased employment with his sponsor and, based on the evidence before me, I am satisfied that the applicant was given reasonable opportunity to secure employment in Australia.

17. I noted that, if the primary decision is affirmed by the tribunal, he may be required to depart Australia. I further noted that his visa was, but for the cancellation, to cease on 25 March 2016 in any case and there is nothing to prevent him from re-applying for 457 visa once he finds a new employer which has a sponsorship and nomination applications approved by the department.

18. 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

19. 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?

20. 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 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.

21. Based on the evidence before it, the tribunal is satisfied that the condition 8107 was attached to the applicant's visa, which was granted on 25 March 2015, and which, but for its cancellation, was to remain valid to 25 March 2016.

22. Based on the evidence before it, the tribunal finds that the applicant ceased employment with Rising Group Pty Ltd in December 2015. This fact was conceded in the applicant’s oral evidence. 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).

23. 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

24. 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’.

25. 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]

26. 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

27. The tribunal finds that the purpose of the applicant’s stay in Australia was to work as a Restaurant Manager on a temporary basis. The applicant lost his job in December. He decided to remain in Australia and try to find a new employer.  However, as of the day of my decision he was unable to do so. It has been more than nine 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 a Restaurant Manager within the business.

28. Based on the evidence before me, I am satisfied that the applicant was given reasonable opportunity to secure employment in Australia. It is uncertain if and when he will be able to do so. 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

29. As previously noted, 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 purpose 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 ceased working for his sponsor in December 2015 and he has not commenced employment with another Australian sponsoring company at the time of decision. I give significant weight to this consideration.

    The reason for and extent of the breach

30. The applicant’s visa was subject to 8107 condition. I am satisfied on the evidence before me, including the applicant’s oral evidence given in the course of the hearing that the applicant was aware of the condition imposed on his 457 visa.

31. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in December 2015. 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 nine 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 nine months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose.

32. 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

33. 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

34. The applicant claims that the visa cancellation would cause hardship to himself and his wife and that both of them will suffer financial hardship as a result of visa cancellation. In his evidence he stated that he had been living in Australia for almost 10 years. He further stated that if he returns to his home country he will have no employment opportunities.

35. I accept that leaving Australia may involve some hardship to the applicant and his wife, but I am of the view that this hardship would 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. Balanced against any potential hardship to the applicant and his family 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 March 2016 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.

    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

36. 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 and his wife will have the opportunity to depart Australia. Whilst their continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

37. 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

38. The tribunal notes that there is consequential cancellation of the applicant’s wife visa. Whilst the applicant’s wife’s visa is also cancelled as a consequence of this cancellation, the tribunal notes that the consequence will not result in separation of the applicant from his wife.

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

1. 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).  

2. 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

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

4. 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

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

6. The tribunal has no jurisdiction with respect to the second named applicant.

   Antonio Dronjic
   Member