1602645 (Migration)

[2016] AATA 4408

1602645 (Migration) [2016] AATA 4408 (20 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karan Chohan

CASE NUMBER:  1602645

DIBP REFERENCE(S):  BCC2016/296786

MEMBER:Marten Kennedy

DATE:20 September 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 20 September 2016 at 11:18am

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision dated 19 February 2016 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. Under s.116 of the Act, the Minister may cancel a visa if 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). 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.

   Does the ground for cancellation exist?

3. Condition 8107 was a condition of the applicant’s visa.  Among other requirements, and relevantly, condition 8107 requires[1] that the holder work only in a position in the business of his standard business sponsor or an associated entity of the sponsor: condition 8107(3)(a)(ii)(B).  A further relevant requirement of condition 8107 is that if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days: 8107(3)(b).

   [1] Paragraph 8107(3) applies only to a subclass 457 visa granted on the basis that the holder met the requirements of cl.457.223(2) or (4) (labour agreements and standard business sponsors). I infer from Departmental records before the Tribunal that the visa was granted to the applicant on that basis.  Paragraph 3A of Condition 8107 excludes circumstances from the application of condition 8107(3)(a)(ii)(B).  None of the circumstances mentioned in 8107(3A) are relevant.

4. The delegate cancelled the visa under s.116(1)(b) of the Act because the delegate found that the applicant failed to comply with condition 8107. On 3 February 2016, the delegate had notified the applicant of an intention to consider cancelling the visa, and advised that it had come to his attention that Cutting Edge Carpentry and Joinery Pty Ltd (Cutting Edge) had informed the Department that the applicant had ceased employment with it on 11 September 2015.

5. The applicant has provided an informal statutory declaration to the Tribunal.  He says that he was terminated from his job because the business (from context, Cutting Edge) was going into liquidation.  He says he desperately looked for another job and found employment with another employer in February 2016.  The applicant says that he was misguided [misled] by his new employer who failed to support him in a new nomination and also ceased operating his business.

6. At the hearing, the applicant confirmed that he had ceased his employment with his sponsor on 11 September 2015.

7. Although it would appear that the applicant has complied with neither condition 8107(3)(a)(ii)(B) or 8107(3)(b), it is sufficient that I find on the basis of the applicant’s evidence that he ceased employment with Cutting Edge, his standard business sponsor, on 11 September 2015, and did not work elsewhere prior to February 2016.  More than 90 consecutive days passed during which the applicant had ceased employment.  I find that the applicant has not met the requirements of condition 8017(3)(b).  It follows that the applicant has not complied with condition 8107.  At the hearing, I confirmed with the applicant’s representative that the concession from the applicant that the ground for cancellation was established was an appropriate one.

8. For these reasons, I am 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

9. 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’.

10. As to the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia, the applicant told me at the hearing that  he had first travelled to Australia in 2009 to study carpentry and to obtain a diploma in business management.  He subsequently studied in Australia for 5 years, before being offered sponsorship by his sponsor.

11. As to the visa the subject of consideration for cancellation, I observed that the visa was a temporary skilled work visa within a scheme aimed at regulating the availability of foreign labour in Australia.  I observed that the visa was granted to the applicant to work in the identified skilled occupation for his approved sponsor.  I observed that in these circumstances, on the face of it, the purpose for the grant of the visa no longer existed.

12. I asked Mr Chohan whether he needed to stay in Australia now that the purpose for the visa had gone. Mr Chohan said he had built his skills in Australia and wished to stay to fulfil the need for skilled workers in Australia.  Mr Chohan said he wished to remain in Australia to use the skills he had acquired.

13. I asked Mr Chohan why he faced difficulty finding an alternative sponsor, explaining that the way the 457 visa scheme is administered by the Department allows for visa holders to change sponsors within a generous timeframe if for any reason the first sponsorship is no longer available or not suitable.  Mr Chohan said it was because he injured himself at work, and while he was recuperating he heard that the boss was shutting down his company.  He said he was given very little notice.

14. At the hearing I had expressed scepticism about these circumstances because the workplace injury had not been previously mentioned and there was no corroborating evidence before the Tribunal in relation to it.  After the hearing however, the applicant produced medical evidence to confirm that he suffered a gouging injury to his thumb as he had described on 21 July 2015.  He underwent a tenoplasty procedure at the Western Orthopaedic Clinic.  It was envisaged in the medical report that Mr Chohan could return to restricted duties at 2 weeks, and unrestricted duties at 4 to 6 weeks.  Further evidence provided to the Tribunal after the hearing demonstrated that Mr Chohan was treated between 23 July 2015 and 14 October 2015.  On that latter date Mr Chohan was understood to have returned to ordinary activities albeit with some ongoing sensitivity.  Evidence was also provided to show that Mr Chohan’s employer made a Worker’s Compensation claim in relation to the incident on 5 August 2015.

15. As to the circumstances in which the ground for cancellation arose, I accept that at the time Mr Chohan ceased employment with his sponsor he was recuperating from a workplace injury.  I do not have any further information about the specific circumstances in which Mr Chohan’s employment ceased, but accept Mr Chohan was told that the company would cease operating.

16. Significantly, the evidence provided by Mr Chohan establishes that he was able to return to normal duties, for example with another sponsor, from mid-October 2015. When having regard to the ordinary administration of the 457 scheme and the timeframe ordinarily afforded to visa holders who cease employment with their sponsor to find alternative sponsorship, I take Mr Chohan’s workplace injury into account in considering the circumstances in which the ground for cancellation arose.  However, where it is established that there was no medical impediment to Mr Chohan securing alternative employment and sponsorship from mid-October 2015, the workplace injury is of limited significance in considering the overall exercise of the discretion.

17. Further as to those circumstances, I accept Mr Chohan had difficulty finding alternative sponsorship at the time and subsequently.   I accept that from February he anticipated that he might secure alternative sponsorship, but this did not eventuate.  In exploring further why Mr Chohan could not secure alternative sponsorship, Mr Chohan explained it was difficult because employers want to be able to observe ones skills as a carpenter before taking on the responsibilities of a sponsor.  He has not been able to secure such a commitment from an employer.

18. I have taken into account a document provided by the applicant purporting to be from a potential employer / sponsor.  The document is unusual as it does not contain a letterhead and is a combination of typed and handwritten content.  The person who gives the statement appears to be ‘Mik Cserepany’, owner of ‘Symmetry Design’.  The letter states that the author is committed to employ Mr Chohan, subject to a business restructure, application and approval of standard business sponsorship, and a nomination application.

19. Mr Chohan explained that the employer is in the process of incorporating.  I observed that I would have difficulty placing favourable weight on this information because it was many steps removed from being an alternative sponsoring employer for the applicant, and indeed the entity did not yet exist.

20. As to the degree of hardship that may be caused (financial, psychological, emotional or other hardship) Mr Chohan said that he did not wish to return to the area he was from.  He said the area was violent and there were thieves.  Mr Chohan told me he was from Punjab (India) near the border with Pakistan.

21. Mr Chohan also referred to his Australian girlfriend, and told me separation would cause emotional hardship.  I observed there was no evidence before me in relation to this relationship. Mr Chohan told me he had been in the relationship for 4 months. I subsequently received a statement from Keryn Facey.  The statement asks me to take into account that Ms Facey sees her future with Mr Chohan and one day she would see herself marrying and having children with him. Ms Facey says she will not be very happy if he is to return to India.  Mr Chohan also referred to separation from the friends he has made in Australia

22. Mr Chohan has also provided a further statutory declaration outlining evidence as to the average daily wage for carpenters in India.  I have taken that information into account and accept Mr Chohan will face significant comparative financial disadvantage if the visa were cancelled.

23. As to the extent of compliance with visa conditions, I have no adverse information beyond the breach of condition 8107 the subject of this review. Similarly, there is no adverse information before me as to Mr Chohan’s conduct towards the immigration department.

24. As to 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, Mr Chohan confirmed that if the visa was cancelled, subject to exercising appeal rights and making applications for any further visa he may be entitled to apply for, he would leave Australia and did not foresee that there was any reason why he should be subjected to long-term immigration detention.

25. As to whether any international obligations would be breached as a result of the cancellation, Mr Chohan recognised, with assistance from his representative, that cancellation of the visa would not breach Australia’s international obligations. I explored briefly whether Mr Chohan held any fears about returning to India.  Mr Chohan mentioned his father may have enemies, but expressed this in terms of ‘who knows’.  I note there is no legal impediment to Mr Chohan applying for a protection visa in the event that he believes Australia has protection obligations in respect of him.  In this sense, I do not accept that cancelling this visa would result in Australia breaching international obligations.

26. I have considered the particular circumstances of Mr Chohan very carefully.  I have taken into account and accept the emotional and financial hardship Mr Chohan will face upon any cancellation of the visa.  I recognise that Mr Chohan has spent a considerable period of time in Australia as a student and subsequently.  It follows that I accept that Mr Chohan will have many connections with Australia and an outcome that requires him to depart Australia will be a source of disappointment and hardship to him.  I place weight on the hardship facing Mr Chohan in relation to the evidence he has given about his relationship with Ms Facey.

27. Similarly, I have taken into account that the cessation of employment that resulted in the breach of the visa condition involved aspects of a workplace injury.  I accept that the cessation of employment was a circumstance beyond Mr Chohan’s control.  However, I have found that Mr Chohan was medically fit to resume employment, and therefore to find an alternative sponsor and employment well within the ordinary time afforded to subclass 457 visa holders for this purpose, and well prior to this hearing on review some 12 months after he ceased his employment with his sponsor.

28. I place significant weight on the purpose of the visa Mr Chohan asks me to effectively reinstate.  I take into account that the visa is a temporary work visa which ordinarily falls within a framework of sponsorship.  I am concerned that if I were to effectively reinstate the visa it would be outside that framework.  Mr Chohan has been unable to secure alternative sponsorship over a long period of time, and I have taken into account that the Department administers the 457 scheme in such a way that a relatively generous amount of time is afforded to visa holders to secure alternative employment and sponsorship where their original employment ends. 

29. I have found unpersuasive the evidence referred to at the hearing regarding a potential new sponsor and position. That evidence I note has come at the last minute and relates to an entity that does not yet exist.  It is unacceptably speculative for me to place favourable weight on the intentions expressed by Mr Cserepany.

30. Ultimately, I have decided that the subclass 457 visa should be cancelled. I have placed determinative weight in this case on the purpose of the visa no longer being served, finding those circumstances outweigh the hardship Mr Chohan will face.  On balance, I do not consider the hardship to be faced by Mr Chohan justifies the effective reinstatement of a temporary work visa outside the framework of the 457 visa scheme and for a purpose unconnected with the original purpose of the visa.

31. I would exercise the discretion to cancel the visa, and so I affirm the decision under review.

    DECISION

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

    Marten Kennedy
    Member