1604439 (Migration)

[2016] AATA 4292

1604439 (Migration) [2016] AATA 4292 (24 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  SAT PAL SINGH
Mrs SURINDAR KAUR

CASE NUMBER:  1604439

DIBP REFERENCE(S):  BCC2016/741154

MEMBER:Glen Cranwell

DATE:24 August 2016

PLACE OF DECISION:  Brisbane

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 24 August 2016 at 8:57am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 March 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 had not complied with condition 8107. 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.

4. The applicants appeared before the Tribunal on 23 August 2016 to give evidence and present arguments.

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(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?

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 requires the applicant not cease employment for more than 90 consecutive days.

8. The applicant provided the Tribunal with a copy of the delegate’s decision.  The delegate’s decision records that the applicant’s sponsor, CreZar Pty Ltd, advised the Department that the applicant ceased employment on 9 November 2015. 

9. The applicant claimed that his sponsor restructured the business, and that he continued working for the sponsor under a company named Rasoi Group of Restaurants Pty Ltd.  The applicant provided an unsigned contract of employment with this entity.  However, when asked by the Tribunal at the hearing, the applicant was unable to provide any other documentation, such as payslips, to support this claim of continued employment.  The Tribunal places no weight on an unsigned contract of employment.  In the absence of other evidence, the Tribunal does not accept that the applicant continued to work after 9 November 2015.

10. Accordingly, the Tribunal finds that the applicant ceased employment with CreZar Pty Ltd on 9 November 2015.  As the applicant has ceased employment for more than 90 consecutive days, the Tribunal is satisfied that he has not complied with a condition of the visa.

11. 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

12. 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’, relevantly:

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

    ·if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for and extent of the breach

    ·the degree of hardship that may be caused to the visa holder and any family members

    ·the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

    ·the visa holder’s past and present behaviour towards the department

    ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140

    ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:

    oif there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration

    owhether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment

    ·any other matter the visa holder raises.

13. The applicant stated that his purpose of coming to Australia was initially to study, and then to work. 

14. Most recently, the applicant claimed to have been offered employment and nominated for a position by Punjabi Brothers Pty Ltd on 3 March 2016.  At the hearing, the Tribunal asked the applicant to provide a contract of employment in support of his claims.

15. Following the hearing, the applicant emailed the Tribunal two documents.  One document was a Word document, containing the first page and a half of a contract of employment on the letterhead of Punjabi Brothers Pty Ltd. The other document was a PDF document, which comprised an extended version of the contract of employment running for five pages.  All pages of the PDF document are of uniform quality, with the exception of the execution page which has obviously been scanned or copied separately.

16. The Tribunal places no weight on the purported contract of employment from Punjabi Brothers Pty Ltd.  The applicant obviously has access to the company’s letterhead in a Word document.  The effect of this is that he is able to create his own content on the company letterhead.  The execution page of the PDF document was of markedly different quality.  Even if a contract between the applicant and Punjabi Brothers Pty Ltd was at some point signed, and the Tribunal is not satisfied that the other pages of the contract reflect the content of any document signed between the applicant and the company.

17. The Tribunal accepts that the applicant ceased employment with CreZar Pty Ltd due to circumstances beyond his control. 

18. There is no evidence before the Tribunal to indicate that the applicant has breached any other visa conditions, and there is no behaviour of concern towards the Department.

19. In terms of hardship, the applicant stated that his father is disabled and reliant on remittances from the applicant in Australia.  The applicant has been in Australia for 7 years.  The Tribunal put to the applicant that his Australian qualifications would increase his employability in India.  The applicant stated that the pay was too low.

20. The applicant’s wife, the second named applicant, has returned to India.

21. Balancing all of these factors, the Tribunal places little weight on the applicant’s claims to have been offered employment with Punjabi Brothers Pty Ltd.  The contract of employment provided to the Tribunal was in a form which suggested it had been manipulated by the applicant.  It remains the case the applicant was granted a Subclass 457 visa on the basis of working in a nominated occupation, and that he has had over 9 months since his employment with CreZar Pty Ltd ceased to obtain and have an alternative nomination approved by the Department.  There is no evidence before the Tribunal that the applicant is the subject of an approved nomination.  The Tribunal accepts that the applicant would experience some hardship were he to return to India given the amount of time he has spent in Australia, and the reliance of his parents on his income.  However, notwithstanding the applicant’s claims to the contrary, the Tribunal considers that the applicant’s Australian qualifications would increase his employment prospects in India – presumably that is why he undertook study in Australia in the first place.  The applicant’s wife is already in India.  The Tribunal considers that any such hardship to the applicant is outweighed by its doubts about his future employment prospects in Australia.  Considering the matters raised by the applicant singularly and cumulatively, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

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

    Glen Cranwell
    Member