1604905 (Migration)

[2016] AATA 4686

1604905 (Migration) [2016] AATA 4686 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ashaben Bharatbhai Patel
Mr Vipulkumar Dahyabhai Patel

CASE NUMBER:  1604905

DIBP REFERENCE(S):  BCC2015/3725441

MEMBER:L. Hawas

DATE:23 November 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

Statement made on 23 November 2016 at 10:06am

STATEMENT OF DECISION AND REASONS

Introduction

1. This is an application for review of a decision dated 31 March 2016 made by a delegate of the Minister for Immigration to cancel the first 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 grounds that the applicant had breached condition 8107(3)(b) of her visa. That condition provided that the applicant must not cease employment with her nominated employer for more than 90 consecutive days. The delegate found that the applicant had ceased employment for more than 90 consecutive days and, accordingly, breached that condition of her visa. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether in the exercise of the Tribunal’s discretion 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 applicant. The second 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] FCA 1493; (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA[1998] FCA 1552; (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 applicant.

   Relevant chronology

4. The delegate’s decision record given to the Tribunal in the review and the documents on the Tribunal’s file reveal that:

   (a)The applicant was granted a temporary work (skilled) (subclass 457) visa on 4 June 2013. The visa was for a four year term to expire on 4 June 2017;

   (b)The approved sponsoring employer was Whitestone Hotel Group Pty Ltd (Whitestone), who owned and operated the Grand Central Hotel in Cobram. The approved occupation was Hotel or motel manager;

   (c)Whitestone sold the Grand Central Hotel to M&M Dehne Pty Ltd (Dehne) in July 2015. The applicant wanted to remain working at the Grand Central Hotel so on 9 August 2015 she resigned her role with Whitestone and took up her old management position with Dehne;

   (d)Dehne wanted to sponsor the applicant under the Regional Settlement Migration Scheme, and to that end applied for approval to the Regional Certifying Body (RCB) in October 2016;

   (e)After some further correspondence with the RCB which caused some delay, it approved Dehne as a certified sponsoring employer on 18 January 2016;

   (f)Dehne nominated the applicant for a 187 visa as a hotel manager under the Regional Settlement Migration Scheme on 22 January 2016;

   (g)By letter on the same day, the department notified the applicant of its intention to cancel the applicant’s visa;

   (h)By letter dated 5 February 2016, the applicant responded to the department’s intention notice and set out the matters above;

   (i)On the grounds that Dehne’s nomination of the applicant under the Regional Settlement Migration Scheme might longer to process than a fresh 457 nomination application, Dehne lodged an application for approval as a standard business sponsor, and a fresh 457 nomination application, on 26 February 2016;

   (j)The department decided to cancel the applicant’s 457 visa on 31 March 2016;

   (k)The applicant sought a review of that decision by application to this Tribunal on 11 April 2016; and

   (l)The department approved Dehne as a standard business sponsor on 8 June 2016, and on 9 August 2016 the department approved Dehne’s nomination of the applicant as hotel manager.

   The hearing and the arguments

5. The applicant appeared before the Tribunal on 28 October 2016 to give evidence and present arguments. The applicant was represented in the review by her registered migration agent. The representative attended the Tribunal hearing.

6. In a written submission from the applicant’s migration agent filed before the hearing, the applicant pointed out several errors in the delegate’s decision. The Tribunal considers that those errors were not material to the review.

7. In the written submission, the applicant conceded that she had breached condition 8107(3)(b) of her visa by remaining unemployed by more than 90 consecutive days, and that the delegate had proper grounds to cancel her 457 visa. The applicant repeated that concession in oral evidence at the hearing. In the written submission and at the hearing, the applicant said that she relied on the Tribunal’s discretion to effectively reinstate her visa.

8. In argument the applicant relied heavily on her demonstrated prompt action after ceasing employment, and before any action by the department, to secure new employment and make the appropriate applications to the department. The applicant also relied on Dehne’s fresh nomination of her as a hotel manager at the Grand Central Hotel. The applicant argued that the Tribunal should give those matters substantial weight in exercising its discretion.

9. The applicant provided written evidence of the department having approved Dehne’s fresh nomination.

   Does the ground for cancellation exist?

10. 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. Here the applicant’s visa contained condition 8107(3)(b), which provided that the applicant must not cease employment with her nominated employer for more than 90 consecutive days. The applicant did not dispute that condition 8107 was engrossed on her 457 visa.

11. On the evidence before the Tribunal, and as the applicant conceded in writing and orally, the applicant ceased employment with her nominated employer on 9 August 2015 and did not subsequently resume employment with Whitestone or any related entity. Accordingly, the applicant breached condition 8107(3)(b) of her visa.

12. Accordingly, the Tribunal is satisfied that the delegate had lawful grounds to cancel the applicant’s visa.

    Consideration of discretion

13. Under s.116(3) of the Act, once the decision maker is satisfied that grounds for cancellation of the visa have been made out, cancellation is not mandatory. The decision maker must proceed to consider whether the visa should, as a matter of discretion, be cancelled.

14. The Act and the Regulations do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances, which may include matters of government policy.

15. In exercising its discretion, the Tribunal can have regard to the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3 and it can have regard to anything not included in PAM3 so long as the matter is relevant. However, PAM3 constitutes a useful starting point for the exercise of the discretion.

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

16. The applicant said in evidence that she first came to Australia in May 2008 on a student visa. She studied for a Diploma of Multimedia at Cambridge College and graduated with that qualification in 2010.

17. She married in 2011 and commenced work that year at the Stanford Hotel in Sydney as a housekeeper. After six months she was promoted to housekeepers’ supervisor.

18. She remained at the Stanford Hotel until she was granted her 457 visa under Whitestone’s sponsorship in June 2013, at which time she began work with Whitestone at the Grand Central Hotel in Cobram.

19. The applicant said that when Whitestone sold the Grand Central Hotel, it maintained hotel operations in New South Wales. Whitestone offered the applicant a job at one of its New South Wales hotels as a manager. The applicant was prepared to move to New South Wales to work for Whitestone but she enjoyed her job at the Grand Central Hotel and preferred to stay there if she could. When Dehne offered to keep the applicant in the manager role she enjoyed she took that course rather than moving to New South Wales. The applicant said that her decision was vindicated in the end because Whitestone entered liquidation in February this year.

20. A 457 visa is a temporary one designed to allow employers to fill temporary skills shortages in the Australian workforce. It does not create an expectation that an applicant will be able to remain in Australia permanently. The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time for Whitestone managing the Grand Central Hotel. This purpose was disturbed when Whitestone sold the Grand Central Hotel and the applicant resigned her position with Whitestone.

21. But the applicant’s actions must be considered in their proper context. The applicant only resigned her position with Whitestone because Dehne offered her old position back to her. That circumstance – managing the Grand Central Hotel – constituted the grounds for the issue of her 457 visa. The only difference now was the identity of the applicant’s employer. Viewed that way, the purpose of the applicant’s stay in Australia on the 457 visa was not destroyed and remained partly intact at the time the department cancelled her visa. The survival of the purpose depended on the department’s decision(s) on the applications before it at the time of cancellation.

22. The purpose of the applicant’s 457 visa was then effectively restored to its original position on 9 August this year when the department approved Dehne’s nomination of the applicant as a hotel manager.

23. While the Tribunal cannot be certain that Dehne’s nomination will ultimately result in the applicant being granted another 457 visa, it is satisfied that in this instance the original purpose of the applicant’s 457 visa has been restored and Dehne requires her skill and experience to discharge the same role she was discharging with her original approved employer. The Tribunal also notes that the relevant skill shortage is likely to be more acute in a regional area like Cobram.

24. The Tribunal considers the effective restoring of the original purpose of the applicant’s 457 visa weighs heavily in favour of setting aside the delegate’s decision.

    The circumstances in which the grounds for cancellation arose and the extent of compliance with visa conditions

25. Whitestone’s sale of the Grand Central Hotel was beyond the applicant’s control. She could have remained with Whitestone and worked in Hew South Wales but chose to resign instead. Viewed on its own, that decision counts against the applicant. But the matter is largely neutralised by Whitestone’s liquidation early this year. Had the applicant remained with Whitestone, she would have found herself in breach of her visa later in any event. Further, in all the circumstances, it was reasonable for the applicant to seek to remain in the role for which the visa was effectively granted, and seek to regularise her visa arrangement by substituting Dehne as her sponsor.

26. By the time the applicant received the department’s notice of intention to cancel her visa shortly after 22 January 2016, Dehne and the applicant had already applied for a visa under the Regional Settlement Migration Scheme. When it became obvious that a visa under that scheme would take longer than a new 457 nomination, Dehne applied for that nomination before the department cancelled the visa. Dehne ultimately secured the nomination.

27. Accordingly, the Tribunal is satisfied that the applicant’s breach of her visa conditions were relatively minor and the applicant moved quickly to remedy them.

    Past and present conduct of the visa holder towards the department 

28. On the evidence before the Tribunal, the applicant has always cooperated with the department.

    Degree of hardship

29. The applicant said that if her visa remained cancelled and she had to return to India she would suffer financial hardship. In India she would earn about $600 AUD per month. She would struggle to repay a debt to her mother of about $20,000.

30. The Tribunal accepts that the visa applicant would suffer some limited hardship if she was to return to India. But the Tribunal is not persuaded that the applicant would suffer significant hardship. She is articulate, well qualified, and experienced. She would resume life in India with little trouble.

31. However, the Tribunal accepts that Dehne could be prejudiced if the applicant was required to return to India. As noted above, skills shortages are likely to be more acute in regional areas and it would be to Dehne’s great advantage not only to have a skilled manager in a regional hotel but to have the manager who was in place when it bought the business.

    Conclusion and decision

32. After having regard to all of the matters before it, the Tribunal concludes that the applicant’s visa should not be cancelled, and the delegate’s decision to cancel the visa should be set aside.

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

34. The Tribunal does not have jurisdiction with respect to the second applicant.

    L. Hawas
    Member