Adil (Migration)

[2017] AATA 77

Adil (Migration) [2017] AATA 77 (11 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Sharf Uddin Adil

CASE NUMBER:  1600618

DIBP REFERENCE(S):  BCC2015/3769467

MEMBER:Karen Synon

DATE:11 January 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 11 January 2017 at 10:59am

CATCHWORDS

Migration – Cancellation – (Temporary Work (Skilled)) visa – Subclass 457 – Ceased employment exceeding 90 consecutive days – Sponsor sold business – New nomination refused – Consideration of discretion

LEGISLATION       
Migration Act 1958, ss 48, 116, 359A(2)
Migration Regulations 1994, Condition 8107(3)(b), cl 457.223(4)(a)

CASES
MIAC v Li [2013] HCA 18

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 January 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. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with Condition 8107(3)(b). 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. The applicant applied for review of the primary decision on 20 January 2016 and provided a copy of the department’s decision and notification of cancellation.

4. On 2 March 2016 the Tribunal wrote to the applicant in accordance with the provisions of s.359A(2) providing particulars of adverse information in relation to his visa cancellation and inviting information in relation to the exercise of the Tribunal’s discretion. On 16 March 2016 a submission and supporting documents were received in response. As relevant these are considered below.

5. The applicant appeared before the Tribunal on 17 August 2016 to give evidence and present arguments.  After taking evidence the Tribunal agreed to delay its decision until 19 September 2016 after which it would proceed to a decision whether or not the applicant had advised it of the outcome of the nomination review.  The Tribunal said that if this was affirmed it would not delay its decision if judicial review was commenced due to the long period of time this could take.

6. The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

7. 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

8. 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. Condition 8107 (3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutives days’.

   Does the ground for cancellation exist?

9. On the basis of the information before it from the department records (and as detailed to the applicant in accordance with s.359), the Tribunal finds that the applicant was granted a subclass 457 visa on 5 February 2014 to occupy a position of ‘Café or Restaurant Manager’ for Noddle Hut Halal Pty Ltd.  The Tribunal therefore finds, based on this information, that the occupation listed in the relevant approved nomination for the applicant was that of ‘Café or Restaurant Manager’.

10. The Tribunal finds that the applicant’s occupation of Café or Restaurant Manager’ (ANZSCO Code 141111) is not a specified occupation for the purposes of paragraph 8107(3A).

11. The applicant in his written submission and oral evidence concedes that he ceased employment with Noddle Hut Halal Pty Ltd on 20 August 2015 when the business was sold and that further he ceased employment for a period exceeding 90 days.  This is supported by the information before the Tribunal contained in the primary decision and department records (as provided to the applicant in accordance with s.359A).  The Tribunal therefore finds that during the period the applicant held his subclass 457 visa he ceased employment for more than 90 consecutive days.

12. The Tribunal accordingly finds that the applicant has not complied with condition 8107(3)(b) of his Subclass 457 visa.

13. 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

14. 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’.

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

15. The applicant gave oral evidence that he originally came to Australia as a student to study and completed diplomas in multimedia; business management; and painting and decorating.  It was his hope that if he could get a job he might be able to settle here.  In the written submission it was contended that the purpose of his stay is to work and remain employed in a nominated occupation while in Australia and that his purpose of travel and stay in Australia is compatible with purposes of the subclass 457 framework; to be employed, by an Australian business in a relevant nominated occupation.

16. As explained to the applicant at the hearing, a 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that the applicant would be able to remain in Australia on a permanent basis.  The applicant said he understood this.  The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time as a Café Manager for Noddle Hut Halal Pty Ltd.  This purpose no longer exists and the applicant’s evidence to the Tribunal was that he started looking for a new sponsor from the time he ceased working at the Noddle Hut and secured a new sponsor willing to nominate him.  The applicant agreed that at the time of the hearing his nomination was refused but was on appeal at the AAT.  In a submission date 2 January 2017 the applicant conceded that his nomination was not approved.  Although in the same submission he states that he has been attending many interviews and believes he has secured a “prospective job”, he provided no information that he is now subject to an approved nomination.  As over 16 months has passed since he ceased employment with his previous sponsor and the applicant is still not the subject of an approved nomination, the Tribunal has formed the view that the purpose of the applicant’s further stay in Australia is no longer viable.

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

17. The written response relevantly details that in August 2015 the applicant was informed by his then employer that he had sold his business (Noodle Hut Halal Pty Ltd) and therefore would no longer be sponsoring the applicant.  Effective from 20 August 2015, Noodle Hut Halal Pty Ltd ceased to employ the applicant and he could no longer work for his approved sponsor.  Shortly after the applicant was recruited by new sponsor AMFAH (Aust) Pty Ltd and was nominated in the occupation of Cafe and Restaurant Manager for this business on 9 October 2015, well within the 90 consecutive days for the allowable period in between employment in accordance with Condition 8107.  Prior to the cancellation, the department was informed that a new nomination was pending a decision and that there were cogent policy reasons not cancel the applicant’s visa.  However the applicant’s visa was cancelled on 18 January 2016.  On 19 February 2016, AMFAH (Aust) Pty Ltd’s nomination was refused for reasons the applicant’s representative contends were able to be addressed and adequately explained if afforded the opportunity to present the case properly.  This refusal was appealed to the Tribunal (differently constituted).

18. It was also submitted that prior to the cancellation, the applicant complied with all the conditions of his previous visas and he remained employed by Noodle Hut Halal Pty Ltd in accordance with Condition 8107 up until the point when the company advised that his employment had ceased due to the company no longer operating.  He worked only for this employer and no other employer during his time with Noodle Hut Halal.  The applicant was able to secure the offer of sponsorship within the requisite 90 days and thus had done everything possible to comply with his visa conditions given his circumstances with any non-compliance outside his control.

19. While the applicant has not complied with condition 8107(3)(b) ’if the holder ceases employment – the period which the holder ceases employment must not exceed 90 days’ the Tribunal accepts this non-compliance was outside his control as it arose when the ownership of Noodle Hut Halal Pty Ltd changed and he subsequently ceased employment on 20 August 2015.  The applicant told the Tribunal that once he secured an offer from Amfah (Aust) Pty Ltd and it had lodged a nomination, he did not seek further alterative employment options even when the nomination was refused by the department.

20. The Tribunal considers that the applicant has had a very adequate period from August 2015, in which to mitigate the breach by finding employment with another sponsor.  In this respect the Tribunal notes that the applicant was hopeful of employment with the Amfah (Aust) Pty Ltd however this nomination was refused by the department and on 2 January 2017 the applicant advised that his “nomination was not approved”.  The applicant has not been able to secure an approved nomination in the very substantial time of over 16 months since he ceased working at Noddle Hut Halal Pty Ltd as his attempts to secure another approved appear to have been ultimately unsuccessful.

    Past and present conduct of the visa holder towards the department

21. There is no information known to the Tribunal which indicates that the applicant’s past and present conduct towards the department has not been satisfactory.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

22. The applicant’s visa was cancelled on 18 January 2016 and he now holds a Bridging visa E.  There is no evidence before the Tribunal that cancellation would result in the visa holder being subject to detention, or that indefinite detention is a possible consequence of cancellation.  Further, when asked at the hearing what he would do if this cancelation was affirmed the applicant said that he would have no option but to return to India and as such the Tribunal does not foresee a situation that would result in the applicant’s detention or indefinite detention.

    Whether any international obligations would be breached as a result of the cancellation

23. There is no evidence before the Tribunal regarding this matter.

    Degree of hardship and consequential cancellations under s.140

24. The applicant claims that if his visa is cancelled he will not be able to continue to support his parents and family in India.  He has been supporting them since he started working in Australia.  They are not solely reliant on him but they don’t have any income now.  He has 2 brothers; one in India and one in Saudi Arabia but they do not earn much.  He also has 2 sisters in India.  He said it would also be hard to re-establish himself in India after 6/7 years in Australia.  He could get a job there but would not get as much pay.  He could probably get work as a restaurant manager but it is very competitive in India.  He would not get a decent amount of pay compared to what he would get here.  He said everything in India is done on recommendations and if Indians have connections there they go back.  He also has significant loans in Australia and every day receives telephone calls from banks asking that the money be repaid.  He is living with a friend in Werribee rent free.  He was supposed to get married last year but could not due to his visa situation.

25. In the written submission it was contended that the applicant will experience a substantial degree of hardship as he has been working in Australia for almost 2 years and has been studying in Australia for a number of years prior.  He has settled in Melbourne for at least 6 years and has been supporting his family while he has been working in Australia.  He now has a job offer in in Australia which guarantees him a degree of certainty about his future.  He would have greater difficulty securing employment overseas in light of his extended absence overseas and the fact that there are no guarantees in finding obtaining employment in India.

26. The Tribunal noted at the hearing that despite these factors and concerns, the point of studying in Australia is to gain education and qualifications to equip people to gain better employment in their home country and the applicant’s own evidence is that he has not been working in Australia since October 2015 and therefore is not now able to support his family financially.  In fact the applicant’s evidence is that he is accruing considerable debts staying in Australia.

27. The applicant gave oral evidence that his new employer wants him and has been prepared to wait a year because he knows one of the directors of the business who is the Inman at the Geelong mosque and his family are currently running the restaurant.  The applicant said he saw the advertisement for the job of restaurant manager at Asian Essence in Geelong on Gumtree and did not know he knew the owner when he went for the interview.  The restaurant opened in August or September last year.  They want him because they know him personally and want someone they can trust and they have a very good relationship.

28. It was also contended (at the time of the hearing) that the applicant’s (then) proposed sponsor still very much requires the applicant to work for the company and is doing everything within its power to secure his appointment an so the applicant’s financial and employment prospects in Australia are still much better than his prospects should his visa cancellation be affirmed.  Further the written submission contended that as the applicant is presently holding a Bridging E visa and will be subject to PIC 4014 (4) and (5) if he leaves Australia, once he has departed from Australia he would be subject to a three-year bar from applying for most of the visas that he would otherwise be eligible for, including the new subclass 457 visa.  This causes hardship for both himself and his Australian sponsor who require him to work in the business as soon as possible and will have issues in securing his employment and filling required role once he departs from Australia.  However since the hearing it is clear that the applicant will not be working for that proposed sponsor and therefore the arguments in respect of this sponsor are no longer relevant to the Tribunal’s consideration of its discretion.

29. While the Tribunal accepts that having to leave Australia will cause the applicant and his family some financial hardship, it is nonetheless of the view that this hardship would not be significant given the qualifications and employment experience the applicant has gained in Australia.  It was the applicant’s own evidence that he would probably be able to find a job as a restaurant manager is India; albeit at a lower wage and although he claims it to be a very competitive environment, the applicant will return to India with significant qualifications and experience gained in Australia.

30. Finally, while a visa cancellation may mean the applicant would have to return to India, he has only held 2 types of temporary visas in Australia; student visas and a 457 visa.  The Tribunal finds that despite his stated goal of settling here the applicant would not have had a real expectation that he would be able to remain in Australia permanently on the basis of holding a 457 visa alone and the purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis.  The Tribunal explained this at the hearing and the applicant indicated that he understood the temporary nature of the 457 visa.

31. On the basis of the evidence before it, the Tribunal does not consider that the visa cancellation will cause such hardship for the applicant such as to warrant the exercise of its discretion not to cancel the visa.

    Any other relevant matters raised by the visa holder

32. The Tribunal has also considered if any of the other matters raised by the applicant either individually or cumulatively satisfy it that it should exercise its discretion not to cancel the visa. In this respect the Tribunal notes the submission which contends that there are substantial legal consequences for the applicant if his visa is cancelled as s.48 effectively bars him from applying or a range eligible visas onshore and that the effect of the cancellation poses legislative exclusions on the applicant in being able to enter Australia for legitimate person purposes for a long time in the foreseeable future and that given the circumstances of the cancellation being outside the applicant’s control, it would be very unfair for the applicant to suffer such severe consequences as a result of extenuating circumstances. While the Tribunal accepts that the applicant ceased his employment with Noddle Hut Halal Pty Ltd in August 2015 through factors beyond his control, the Tribunal believes it has accorded him a very substantial and fair period of time in which to attempt to secure a new approved nomination. He has not been able to do so.

33. The written submission also contends policy and procedural failures at the primary stage however in conducting its de novo review the Tribunal is of the view that it has accorded the applicant a fair and just opportunity to present his case.

34. In summary the Tribunal has taken into account all of the available evidence in this case.  Having considered all the circumstances the Tribunal is not persuaded that it should exercise its discretion not to cancel the visa.  In this case the Tribunal has found that the applicant breached condition 8107(3)(b) because after he ceased employment with Noddle Hut Halal Pty Ltd he ceased employment for a period exceeding 90 consecutive days, and it is not satisfied that any of the matters raised by the applicant, his representative or evident on the material before it, either individually or cumulatively, is sufficient for the Tribunal to exercise its discretion not to cancel the visa.

    Requests to delay the Tribunal decision making

35. At the hearing the Tribunal agreed to delay its decision making until 19 September for the nomination which was lodged in respect of the applicant to be reviewed (by a differently constituted Tribunal), but the applicant did not, by the agreed date of 19 September, advise that he was the subject of an approved nomination.  The Tribunal wrote to him, via his representative, on 26 October 2016 inviting “any submissions as to whether [he] is now the subject of an approved nomination”.  In response on 27 October 2016 the applicant advised that his lawyer was no longer acting on his behalf and sought “some more time to arrange some other lawyer to assist me”.  However, following this, once again the applicant initiated no further contact with the Tribunal.

36. On 21 December 2916 the Tribunal again wrote to the applicant advising that it will make a decision on this case in the week commencing 3 January 2017 and that any further submissions received before then would be considered.  On 2 January 2017 the applicant responded via email relevantly saying that because his nomination was not approved he has been living in enormous stress and depression due to the cancellation and “to the huge burden of debt” and that his wedding ceremony was cancelled.  He asserted that he has “moved on” and (sic) “able to secure a prospective job after many interviews that I have faced with other companies”. He asked that the tribunal allow him to be represented by “the lawyer that will be available soon with proper submission of the documentation”.

1. The Tribunal has considered this request to further delay its decision making but has decided to proceed given that the applicant has provided no evidence that he is now the subject of an approved nomination or even provided details of any proposed sponsor.  Given that 20 weeks has now passed since the hearing, the Tribunal does not consider that further delaying this decision is appropriate given the significant period of time the applicant has already been granted.  The Tribunal places significant weight on the fact that the applicant has provided no evidence of when or if he might be the subject of an approved nomination.

2. In deciding to proceed to finalisation the Tribunal notes the judicial authority of the High Court of Australia when considering the Tribunal's discretion in relation to adjournments: MIAC v Li [2013] HCA 18. The Court discussed a range of factors that should be considered. Among other things the Court said that “it may be accepted that the Tribunal is to act with some efficiency” (per Hayne, Kiefel and Bell JJ. at [80]); and that the Tribunal “is entitled to have regard to legislative objectives including timeliness in its processes” (per French CJ. at [10])).

3. In any case the applicant would be unable to continue to meet the requirements for a Subclass 457 visa, given he has not provided any evidence to the Tribunal of a sponsor and an approved business nomination in respect of him. It is a requirement of cl.457.223(4)(a) that there is an approved nomination of an occupation in relation to the applicant by a standard business sponsor and the nomination has not ceased.

4. The Tribunal finds that the purpose of the applicant's stay in Australia was to work as a Cafe or Restaurant Manager for Noddle Hut Halal Pty Ltd on a temporary basis.  The applicant is no longer in this employment.

5. The purpose of granting a subclass 457 visa is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.  The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal finds that this purpose no longer exists and the applicant has not, in the very significant period of 16 months since he ceased employment with Noddle Hut Halal Pty in August 2015, been able to secure another approved nomination with alternative employer.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Karen Synon
   Member