1609209 (Migration)

[2016] AATA 4631

1609209 (Migration) [2016] AATA 4631 (7 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Niraj Pata
Mrs Salouni Karki
Master Nizal Pata

CASE NUMBER:  1609209

DIBP REFERENCE(S):  BCC2016/511122

MEMBER:Bruce Henry

DATE:7 November 2016

PLACE OF DECISION:  Brisbane

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 07 November 2016 at 5:18pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 June 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) as she found that the applicant had breached a condition of the visa and the grounds for cancelling the visa outweighed the grounds for not cancelling. The issue in the present case is whether the 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 other applicants are the wife and child of the applicant, whose visas were 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 those other visas 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 them.

4. The applicants appeared before the Tribunal on 7 November 2016 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Background

8. Information in submissions and documents provided by the applicants to the Department and the Tribunal establishes that the applicant is a Nepalese citizen born in Nepal in 1984.

9. The applicant arrived in Australia on 12 July 2008 as the holder of a subclass 572 student visa. On 17 February 2013 he was granted the subclass 457 visa that is the subject of this application. As noted above, that visa was cancelled by the Department on 13 June 2016.

10. The applicant’s subclass 457 visa was granted on the basis of a nomination by an approved standard business sponsor, Yeti Trading Pty Ltd (Yeti), for him to work as a Cook at the company’s Tibetan Kitchen restaurant in West End, Brisbane. Yeti notified the Department that the applicant ceased employment with the business on 2 November 2015.

11. The Department notified the applicant of its intention to consider cancellation of his visa on 6 May 2016 and invited him to respond in writing. His then representative responded on his behalf on 25 May 2016, confirming that ‘Mr. Pata ceased employment with his sponsor (Yeti Trading) on 02 November 2015. He was aware of the requirement to find a new sponsor within 90 days and we subsequently lodged a new nomination application on 10 December 2015.’

12. The applicant has provided the Tribunal with a copy of the decision record of the delegate who cancelled his visa. After setting out the representative’s response, the delegate continued:

    I have also considered the following information available to me:

    Mr. Pata ceased employment with his sponsor (Yeti Trading) on 02 November 2015. He was aware of the requirement to find a new sponsor within 90 days and he subsequently lodged a new nomination application on 10 December 2015. (Reference: EGOAA3QSD1 – Central Park (Salt) Pty Ltd).

    Given the unfortunately long processing times the new sponsor decided they could wait no longer and withdrew this nomination on May 6, 2016. Mr. Pata did not check his previous address around this time (he had since moved house) so he did not receive the NOICC letter until 23 May 2016.

    NIRAJ PATA has tried to remain within the regulations and the main reason he finds himself in this situation is due to the lengthy processing time which his future employer found too hard to bear.

    The Department received written notification from the standard business sponsor who nominated NIRAJ PATA in the most recently approved nomination for the visa on 12 November 2015 and advised that NIRAJ PATA has ceased employment with them effective as of 2 November 2015.

13. During the course of the review the applicant’s representative provided submissions and a statutory declaration by the applicant dated 31 October 2016 to the Tribunal. In his said statutory declaration the applicant said that the restaurant operated by his previous sponsor, Yeti, ‘was closed down due to bankruptcy’. He said that he had worked at the restaurant from February 2014 until October 2015, and that he found another employer to sponsor him within two months of ceasing work. After that employer withdrew his nomination in May 2016 due to frustration with the delays in the process, he found another sponsor who lodged applications for approval of a standard business sponsorship and nomination.

14. The applicant provided a copy of a letter from the Department approving a nomination for him to work as a Cook for the Purdon Greene Trust on 8 September 2016. His statutory declaration concludes:

    The cancellation of 457 visa was occurred due to the circumstances beyond my control. I never breached the visa conditions and complied with the employment requirements with utmost care and diligence. I had no control over my sponsor going for bankruptcy.

15. The Tribunal notes that an application for the winding up of Yeti Trading Pty Ltd was commenced by the Deputy Commissioner of Taxation on 14 August 2015. On 15 October 2015 the Federal Court ordered that the company be wound up in insolvency under the provisions of the Corporations Act 2001 (Cth).

    Does the ground for cancellation exist?

16. 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, which so far as it is relevant is attached to this decision, was attached to the applicant’s visa.

17. Condition 8107(3)(b) requires that if the holder of a subclass 457 visa granted to enable him to work for a standard business sponsor ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

18. The applicant has conceded in written submissions both to the Department and to the Tribunal that he did not work for an approved sponsor for a period in excess of 90 days. Accordingly, the Tribunal is satisfied that the applicant did not comply with this condition.

19. For these reasons, the Tribunal finds 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

20. 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 generally has regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3.

21. The Tribunal has been unable, however, to locate any current policy specifically on the exercise of the discretionary power to cancel a visa for breach of a condition. Previous versions of the policy also referred to factors such as the circumstances in which ground of cancellation arose, stating that ‘as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control’. In the Tribunal’s view, this is clearly one of the matters to which the Tribunal should have regard in determining an application of this kind.

22. At the hearing the applicant told the Tribunal that he worked at the Tibetan Kitchen in West End until the restaurant closed when the owner, Yeti, went into liquidation. He said that he found another sponsor at a restaurant in Kingscliff in Northern New South Wales, which nominated him to work as a Cook. He said that he worked at that restaurant until May 2016, when his employer withdrew the nomination in frustration at the failure of the Department to process the application. He then found another employer willing to sponsor him, also at Kingscliff, and that employer’s nomination for him was approved on 8 September 2016.

23. The applicant told the Tribunal that he is working at the Red Hot Thai restaurant in Kingscliff under this nomination, and that he has had permission to work from the Department since the cancellation of his visa.

24. The applicant said that his son who is now six years old was born in Australia. He currently attends school in Tweed Heads. The second named applicant, Mrs Karki, is working in Tweed Heads.

25. On the evidence before it, the Tribunal is satisfied that the applicant left the nominated position solely due to the failure of the business of his previous sponsor, Yeti. As noted above, independent evidence confirms the applicant’s claim that the business was wound up by the Court on the basis of insolvency shortly before he ceased work there. It is unfortunate that this matter does not appear to have been brought to the Department’s attention by the applicant’s previous representative in his response to the Notice to consider cancellation of his visa.

26. The Tribunal is also satisfied that the applicant has continued to work as a Cook, the position for which he was nominated for his visa, since the grant of his subclass 457 visa, other than for the period after Yeti went into liquidation and that he was diligent in his efforts to find a new sponsor at that time and again after the withdrawal of his second nominator. The Tribunal notes that he is now the subject of an approved nomination by the Purdon Greene Trust to work as a Cook in a Thai restaurant in Kingscliff.

27. The Tribunal also notes that there is no evidence that the client has been uncooperative with the Department, and accepts that the cancellation of the applicant’s visa and the consequential cancellation of the visas of the other applicants, one of whom is a child, would cause hardship to the applicant.

28. Considering the circumstances as a whole, the Tribunal notes that the breach occurred through no fault of the applicant, that he has been diligent in finding another sponsor and is now the subject of an approved nomination, that he has continued to work in the occupation in which he was nominated, and that the cancellation would cause hardship to he and his family, and concludes that the visa should not be cancelled.

    DECISION

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

30. The Tribunal has no jurisdiction with respect to the other applicants.

    Bruce Henry
    Member

    
    

    ATTACHMENT

    Extract from Migration Regulations 1994, Schedule 8:

    8107

    (1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a) cease to be employed by the employer in relation to which the visa was granted; or

    (b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    (c) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

    (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: …

    (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

    (aa) the holder must commence that work within 90 days after the holder’s arrival in Australia; 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 must:

    (i) hold the licence, registration or membership; and
    (ii) comply with each condition or requirement to which the licence, registration or membership is subject.

    (3A) For subparagraph (3)(a)(ii), the circumstances are that: …

    (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); …