Ankit (Migration)

[2019] AATA 5893

Ankit (Migration) [2019] AATA 5893 (7 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Soni Ankit

CASE NUMBER:  1837337

HOME AFFAIRS REFERENCE(S):           BCC2018/2056227

MEMBER:Michelle East

DATE:7 October 2019

PLACE OF DECISION:  Perth

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

Statement made on 07 October 2019 at 10:43am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – not working in the nominated occupation – approved occupation of Corporate Services Manager – applicant working as Finance Manager – sponsor’s new nomination not approved – changing business requirements – family emotional and financial hardship – active application for partner visa – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 8; Condition 8107; r 2.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 December 2018 made by a delegate of the Minister for Home Affairs 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 was not working in the occupation listed in the most recently approved nomination for the holder and was therefore in breach of condition 8107(3)(a)(i) of his 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. The applicant appeared before the Tribunal on 4 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his spouse, Ms Caroline Suherman.

4. 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

5. 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?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance 8107 attached to the applicant’s visa. This condition requires the applicant to work in the occupation listed in the most recently approved nomination, and if the applicant ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

7. The applicant provided to the Tribunal a copy of the delegate’s decision record.  It records, among other things, that condition 8107 was attached to the applicant’s Subclass 457 visa, granted on 15 October 2015 on the basis of his employment in the position of Corporate Services Manager (ANZSCO 132111) with Greentop Nominees Pty Ltd.  It also stated that since 1 January 2017, the duties the applicant had been undertaking in their work with the sponsor had not been consistent with the nominated occupation but instead were consistent with the duties of Finance Manager (ANZSCO 132211).

8. In the applicant’s response to the Notice of Intention to Consider Cancellation (NOICC) dated 5 October 2018, he conceded he had commenced employment with Greentop Nominees Pty Ltd on 1 January 2017 in the position of Finance Manager.  The applicant provided a statutory declaration to that effect as well as an employment contract for his new position. 

9. The applicant advised the Tribunal that his sponsor had lodged a new nomination application for him but that had been unsuccessful.  He conceded he did not have a valid sponsorship because the previous one had expired and the application for the new one was refused.

10. The Tribunal has considered the wording of condition 8107 and is satisfied that the applicant is subject to paragraph 8107(3)(a)(i), that is, the applicant must work only in the occupation listed in the most recently approved nomination for the applicant, that is Corporate Services Manager. 

11. The Tribunal finds that the applicant has failed to comply with the requirements of condition 8107. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. The applicant has provided evidence both in his response to the NOICC and at the hearing to the effect that he did not comply with the condition of his visa. As that ground does not require mandatory cancellation under s.116(3) of the Act, 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 must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

13. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.  Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.  Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.

14. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion.  In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

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

15. The subclass 457 visa is for the skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

16. The applicant arrived in Australia in 2013 on a Subclass 600 visitor visa with his previous partner.  He said he had been educated in England and attained a Bachelor of Engineering and a Masters of Business Administration prior to working in a bank.  After being there for 5 years, he and his partner came to Australia to pursue further opportunities.  The applicant said he was sponsored by another company but resigned from that position to take up the sponsored position with Greentop Nominees. 

17. Based on the evidence before it, the Tribunal is satisfied that as of the day of its decision, the applicant is not working in the nominated position with an approved standard business sponsor.  However, he was working for his sponsor albeit in a different position at the time the NOICC was issued and until the date of cancellation.

18. As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worked if it 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 was a temporary visa of limited duration related to working for a particular sponsor in the nominated skilled occupation.  The Tribunal finds that this purpose no longer exists because the applicant ceased working in the nominated position in January 2017 and the sponsor’s nomination has expired.

19. As noted before, the applicant is neither the subject of an approved nomination, nor the subject of an application for approval of a nominated position by a standard business sponsor or party to a labour agreement.  According to the delegate’s decision and the applicant’s oral evidence, a fresh nomination was lodged, however this was unsuccessful.

20. When considering the discretion, the Tribunal notes that to effectively re-instate the visa would be inconsistent with the purpose for which the visa was originally granted, and inconsistent generally with the purpose and intentions of the subclass 457 visa scheme.

21. The Tribunal gives this some weight in favour of exercising the discretion to cancel the visa.

    The reason for and extent of the breach

22. As noted in the delegate’s decision, on 4 September 2017, Departmental officers conducted a site visit at 1/10 Achievement Way, Wangara.  The sponsor advised that the applicant was sponsored in the position of Corporate Services Manager and worked in that position from November 2015 until January 2017, performing duties consistent with the ANZSCO description.

23. The sponsor advised the officers that the applicant’s role within the business had changed from January 2017 and he had not, since that time, worked in the nominated position.  He was instead working as a Finance Manager.

24. The applicant has not complied with condition 8107 of his visa by not working in the role which is the approved nominated occupation.  The applicant’s evidence at hearing was that the transition happened organically and was in response to the changing business requirements.  His evidence was that he did what was required by his sponsor and didn’t consider the immigration implications.

25. The Tribunal accepts the applicant’s evidence and notes that he was still working for the sponsor in a full-time capacity, albeit in a different role.

26. There is no evidence before the Tribunal of non-compliance with other visa conditions.

27. The Tribunal gives this some weight in favour of not exercising the discretion to cancel the visa.

    The circumstances in which the ground of cancellation arose

28. The applicant provided to the Department a statutory declaration dated 8 February 2018 in which he stated that his role had evolved into that of a Finance Manager and an employment contract of the same date stated that he had commenced employment in that role on 1 January 2017.  A copy of that contract was provided to the Tribunal at the hearing.  On 21 February 2018, a new nomination with the sponsor was lodged to work in the occupation of Finance Manager.

29. The applicant in his response to the Department said his role ‘evolved’ into that of Finance Manager.  He said this arose because of business demands with a change in responsibilities and expectations by his employer.  The applicant also provided a statutory declaration dated 8 February 2018 and an employment contract dated 8 February 2018 advising they commenced in the Finance Manager role on 1 January 2017.

30. A fresh nomination was lodged on 21 February 2018, however, as noted above, was refused.  The applicant contends that these circumstances were beyond his control.  The Tribunal notes however, that in excess of 12 months had lapsed since he started working in the new role.  The Tribunal is of the view that familiarity with the conditions of the visa rests with the visa applicant.

31. Balanced against this however. The Tribunal takes note that even though the applicant’s role had changed, he was still working for the sponsor in a professional capacity.  The Tribunal gives this some weight in favour of not exercising the discretion to cancel the visa.

    The degree of hardship (financial, psychological, emotional or other) that may be caused to the visa holder and any family members

32. The applicant has stated in his response to the NOICC that he and Caroline Suherman are married and that he has a current application for a sub-class 820 visa.

33. Both parties gave evidence of the emotional upheaval caused by the applicant being unable to work, support his family and travel back to their home countries to visit their respective families.

34. Ms Suherman also spoke of the father/son relationship the applicant has with her son.

35. The applicant spoke of his frustration at being unable to work and losing many of the professional contacts he had spent years acquiring.  He also said that to have a visa cancellation on his record would negatively affect his career.

36. The Tribunal accepts that there will be emotional and financial hardship caused to the applicant, his partner and her son should the visa be cancelled.

37. The Tribunal gives this significant weight in favour of not exercising the discretion to cancel the visa.

    The visa holder’s past and present behaviour toward the Department

38. There is no evidence before the Tribunal to suggest that the visa holder has any adverse past or present behaviour towards the Department.

39. The Tribunal gives this factor some weight in favour of not exercising the discretion to cancel the visa.

    Any consequential cancellations that may result

40. According to the Department’s records, there are no consequential cancellations that would arise out of the applicant’s visa being cancelled.

41. The Tribunal finds this factor neutral in the exercise of its discretion

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

42. The applicant is currently on a bridging visa as a result of his current partner visa application.  In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia.  If that is so, he has the opportunity to depart Australia.  If he fails to do so, this may result in detention or removal action, but this is not a necessary consequence of the cancellation decision.

43. The Tribunal is mindful that section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skill visas. This limits the visa applications which can be made by the applicant whilst onshore.

44. The Tribunal notes the applicant has an active application for a Sub-class 820 partner visa which was lodged on 14 January 2019.  The Tribunal notes that this visa is a prescribed visa under section 48 of the Act and Regulation 2.12.  The Tribunal finds this factor neutral in considering its discretion to cancel the visa.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

45. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations.  These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

46. There is no evidence before the Tribunal to suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.

47. The Tribunal gives this factor no weight in considering its discretion whether to cancel the visa.

48. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    Michelle East
    Member