1610964 (Migration)

[2016] AATA 4591

1610964 (Migration) [2016] AATA 4591 (28 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rupinder Singh
Mrs Roop Raj Kaur
Miss Taranpreet Kaur
Master Samarvir Singh

CASE NUMBER:  1610964

DIBP REFERENCE(S):  BCC2015/2984003

MEMBER:Rania Skaros

DATE:28 October 2016

PLACE OF DECISION:  Sydney

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 28 October 2016 at 1:25pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 July 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 he breached condition 8107 imposed on his Subclass 457 visa. 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 other applicants’ 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 applicant appeared before the Tribunal on 27 October 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 set aside.

   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. Of relevance is 8107(3), which provides:

   (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

   (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

   (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…

   (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days

   …………

8. The Tribunal is satisfied on the evidence that 8107(3A) does not apply in this case.

9. The applicant was nominated by Haider Enterprises Pty LTd ATF the Haider Family Trust (the former employer) under the Subclass 457 program. The nomination in respect of the applicant by his former employer, in the occupation of Customer Service Manager, was approved on 21 January 2013. 

10. Information on the decision record, a copy of which was provided to the Tribunal, indicates that the applicant ceased employment with his former employer effective from 7 September 2015. There is no evidence that any other nomination in relation to the applicant had been approved within 90 consecutive days since he ceased employment with his former employer. At the hearing the applicant conceded that more than 90 days had passed since he ceased work with his former employer. 

11. As more than 90 consecutive days have passed since the applicant ceased employment with the sponsor who most recently nominated him, the Tribunal finds that the applicant did not comply with condition 8107. 

12. 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

13. 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’.

14. The Tribunal first considered the purpose of the applicant’s travel and stay in Australia. The applicant initially travelled to Australia as the holder of a student visa and has been granted further student visas onshore. He then applied for and was granted a graduate temporary visa, Subclass 485, after which he applied for and was granted the Subclass 457 visa that is the subject of this review. As noted above, the applicant ceased work with his sponsoring employer in September 2015. The applicant submitted that his employment was terminated because the business (which operated a 7-Eleven franchise store) was facing investigations over mistreatment of workers and decided to terminate his employment because they did not want to continue with their sponsorship obligations. The applicant claimed that his employment was terminated with only one week’s notice which left him and his family in financially difficult circumstances. The Tribunal gives some weight in its considerations to the circumstances in which the applicant’s employment was terminated by his former sponsor, which the Tribunal notes is consistent with publicly available information as revealed by the investigations into the practices of 7-Eleven stores.    

15. The applicant has provided evidence indicating that he was subsequently nominated by another Company, S&P Sidhu Investments Pty Ltd, however, as discussed with the applicant at the hearing, the nomination made in relation to him by S&P Sidhu Investments was under the permanent residence employer nomination scheme and not under the 457 temporary work stream and as such he would not be able to fulfil the purpose of the 457 visa, which is to work temporarily for an approved sponsor in an approved occupation. The applicant submitted that S&P Sidhu Investments, for whom he is currently working, is willing to lodge a nomination under the Subclass 457 visa program. The Tribunal is prepared to accept the applicant’s evidence that S&P Sidhu Investments would lodge a nomination in relation to him under the 457 visa program given that the business has already indicated its willingness, through the lodgement of a nomination under the permanent stream, to nominate the applicant for a position. The Tribunal gives some weight to these circumstances in favour of not cancelling the visa.

16. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The applicant has given evidence that other than condition 8107, which occurred due to factors beyond his control due to the sudden termination of his employment by his former employer, that he has complied with the conditions imposed on his 457 visa. The applicant gave evidence at the hearing that he also sought the removal of the no work condition on his bridging visa E before commencing work with S&P Sidhu Investments and that he has not breached any of the conditions of his BVE visas. The Tribunal is satisfied on the evidence before it that the applicant has complied with visa conditions. The Tribunal is also satisfied on the evidence that the applicant has been co-operative in his dealings with the Department. The Tribunal considers that these factors weigh in favour of not cancelling the visa. 

17. The Tribunal has considered the level of hardship that may be experienced by the applicant and his family if the visa is cancelled.  The applicant gave evidence that he has been in Australia for 10 years and that he has built a life and career in that time. He has two children, a 10 year old daughter who is in year 4 and a 3 year old son. He stated that his son has some health issues. The applicant claimed that if his visa is cancelled he and his family may not be able to remain in Australia which would cause them significant emotional and financial hardship. The Tribunal has considered these claims however, as discussed with the applicant at the hearing, the applicant has applied for a permanent visa, which included members of his family as secondary applicants, and they would all be able to remain in Australia as holders of BVEs while that application is processing. The applicant gave evidence that he is concerned the cancellation would have an adverse effect on his permanent residence application. He also stated that if his visa is not cancelled he would be able to apply for other visas onshore, such as another 457 visa, which he would not be able to do if his visa is cancelled and he remains on a BVE.

18. The Tribunal has considered the evidence but is not satisfied that the cancellation of the 457 visa would cause the hardship claimed by the applicant as he and his family members will be able to remain in Australia as holders of BVEs while their permanent visa application is processing. For these reasons the Tribunal gives limited weight to the hardship that may be experienced by the applicant and his family as a result of the cancellation. The Tribunal nevertheless acknowledges that if the 457 visa is cancelled he will be affected by s.48 of the Act and will have limited options for applying for further visas onshore. In the circumstances, the Tribunal accepts that holding a 457 visa is more favourable that holding a BVE and has given this consideration some weight in favour of not cancelling the visa.

19. The Tribunal accepts that the visas of the applicant’s spouse and children would be consequentially cancelled under s.140 however the applicant’s family were only entitled to their visas on the basis of being a member of his family unit and considers it the intention of the legislation that members of the same family have the same visa status. Accordingly, the Tribunal gives limited weight to this factor in its considerations.    

20. The applicants have not claimed, and there is no evidence to suggest, that any international obligations would be breached as a result of the cancellation. The Tribunal accordingly gives no weight to this factor in its considerations.

    Conclusion

21. Having carefully considered the circumstances overall, the Tribunal considers that the factors in favour of cancelling the visa are outweighed by those in favour of not cancelling the visa.  For these reasons, the Tribunal concludes that the visa should not be cancelled.

    DECISION

22. 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.

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

    Rania Skaros
    Member