Ankur (Migration)

[2019] AATA 2742

Ankur (Migration) [2019] AATA 2742 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ankur

CASE NUMBER:  1823197

HOME AFFAIRS REFERENCE(S):           BCC2018/1676263

MEMBER:Sheridan Lee

DATE:2 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 April 2019 at 10:42am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment exceeding 90 consecutive days – mismanagement at sponsoring business – 12 months of unemployment – applicant did not notify immigration – criminal offence charges – failed to sign in on bail – possible father of Australian child – no longer in relationship with child’s mother – no breach of international obligations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 359AA
Migration Regulations 1994, Schedule 2, condition 8107(3)(b), cl 457.223(4), public interest criterion 4013

CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 August 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 had failed to comply with visa condition 8107(3)(b). Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. 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 14 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former colleague, Mr Jarod Cole.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

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.

   Background

7. The decision of the delegate of the Minister for Immigration sets out that on 2 October 2014, the Department of Immigration and Border Protection (now the Department of Home Affairs) approved a nomination by BDR529 Pty Ltd, trading as Autocraft, to sponsor the applicant for a Subclass 457 visa in the occupation of Motor Mechanic (General).

8. As a result, on 8 December 2014, the Department granted the applicant a Subclass 457 visa on the basis that he was sponsored by a standard business sponsor under subclause 457.223(4). The Subclass 457 visa was granted subject to mandatory condition 8107. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

9. The applicant’s Subclass 457 visa would have expired on 8 December 2018.

   Notification procedures

10. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[1] In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

    [1]     Section 119.

11. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[2]

    [2]     See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32].

12. On 23 July 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that it had received written notification from the sponsor, advising that on 2 August 2016 the applicant was involved in a traffic incident and did not return to work. There was no copy of a written notification on the departmental file. However, there was a document located at folio 1 titled ‘referral to operational integrity for visa cancellation consideration’. The document outlines that departmental officials conducted monitoring of the applicant’s 457 visa sponsor. During a site visit, they were notified that the applicant had not worked in the occupation for approximately 1.5 years. This was the basis for the Department finding the sponsor in breach of its obligations and cancelling the sponsorship approval.

13. At the hearing, this information was put to the applicant in accordance with s.359AA. In addition, the Tribunal provided the applicant with a copy of the relevant document for his reference, along with an email from the Department confirming that it did not receive written advice from his former employer that he had ceased employment. The email outlines that the Department was verbally advised during the site visit, conducted on 17 January 2018.

14. The Tribunal advised the applicant that the information is relevant to his review because it indicates that he ceased employment with his sponsor for more than 90 days, in breach of visa condition 8107. Further, if the Tribunal were to rely on the information, it would form the basis, or part of the basis for affirming the decision under review. The applicant was then invited to respond or comment and advised that he may take a break prior to responding. The applicant’s substantive evidence is discussed below, however in summary, the applicant confirmed that he had in fact cease working for his sponsoring employer for more than 90 days; however the circumstances in which this arose were outside his control.

15. In respect of the notice, the Tribunal acknowledges that it sets out incorrect information as to method of notification received by the Department from the sponsoring employer. Nevertheless, the notice is not invalid. The notice set out the grounds of the alleged non-compliance in respect of condition 8107. In addition, the Tribunal finds that the response the applicant provided on 27 July 2018 indicated that he understood the nature of the alleged non-compliance.

16. In the circumstances, the Tribunal considers that the Department provided the applicant with sufficient information to adequately understand and, therefore, respond to the notice of intention to consider cancellation, as required under the legislation.

    Does the ground for cancellation exist?

17. 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, condition 8107 attached to the applicant’s visa. Specifically, subclause 8107(3) applies because the Department granted the applicant a subclass 457 visa on the basis that the applicant met the requirements of subclause 457.223(4).

18. Relevantly, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer. As outlined, condition 8107(3)(b) required that the applicant not cease employment for more than 90 consecutive days.

19. In his response to the notice of intention to cancel, the applicant acknowledged that he was no longer working for his sponsoring employer, although he disputes the timeline put forward by the Department. He further advised that he was unable to apply for a new sponsor as his passport was unavailable to him. As of March 2017, the applicant’s passport has been in the possession of Victoria Police pending the outcome of criminal charges.

20. In submissions dated 21 November 2018, the applicant’s representative advised that on 1 August 2016, the applicant was driving a car which was involved in an accident causing the death of an 85 year old man. The applicant has been charged with multiple offences including causing serious injury recklessly and dangerous driving causing death. A letter from Michael Brugman, Principle Lawyer at Criminal Lawyers Geelong, has been supplied to the Tribunal, outlining that a trial has been set down for 1 July 2019.

21. At the hearing, the applicant gave evidence that he returned to work after his accident in around late September or early October 2016. When he returned, the owner’s wife was unwell and she had previously been responsible for the books. From that time, the owner, Mr Darren McRae, commenced doing the books and paying staff by bank deposit.

22. The applicant outlined that when he started at Autocraft everything was good. However, Mr McRae began to put pressure on staff to complete work faster. The applicant alleged that Mr McRae was taking money from people and not providing the work he was charging them for and refused to answer the phone. The business started to go downhill suddenly. Mr McRae stopped paying the applicant’s tax and superannuation. Eventually, Mr McRae stopped paying the applicant’s wages. The applicant could not remember exactly when his employer ceased paying his wages, noting that they were never on time.

23. The applicant was advised by his employer that there was insufficient work and he stopped attending from mid-July 2017. At that time, he still had hope that business would pick up and he could return to work. He was then advised that the workshop caught fire over Christmas. The applicant did not make any complaints about his wages to the Fair Work Ombudsman or the Department.

24. In submissions post hearing, the applicant supplied Commonwealth Bank statements for an AwardSaver Account in his name, showing cash deposits of $842.54 from Autocraft on an almost weekly basis until 21 June 2017. The Tribunal accepts that the applicant continued to work for Autocraft until at least June 2017. Nevertheless, by the time of the notice on 23 July 2018 and the cancellation on 3 August 2018, the applicant had not been employed by his sponsoring employer for a period exceeding 90 days.

25. As such, 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 visa should be cancelled. The circumstances that gave rise to the cancellation as put forward by the applicant are considered below.

    Consideration of discretion

26. 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’.

27. 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.[3]

    [3]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

28. 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 and the oral evidence from the applicant his former colleague at the hearing.

29. The policy outlines that the following matters should be taken into account, if relevant, when deciding whether to cancel a visa.

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

30. At the hearing, the applicant gave evidence that he arrived in Australia in 2009 on a student visa to study Automotive Technology. The applicant went on to complete Certificate III and IV in Automotive Technology, and Certificate III and IV in Business Management. In mid-2014, the applicant commenced working part-time with Autocraft as a Motor Mechanic.

31. On 8 December 2014, the applicant was granted a Subclass 457 to enable him to remain in Australia and work for his sponsoring employer, Autocraft. He then commenced work on a full-time basis.

32. The applicant’s Subclass 457 visa was scheduled to expire on 8 December 2018. Due to legislative amendments that took effect from 18 March 2018, it is no longer possible to lodge a new nomination application under the Subclass 457 scheme.

33. The Tribunal finds that the applicant does not have another Australian employer willing or able to sponsor him under the Subclass 457 scheme. Accordingly, given this and the fact that the applicant ceased working at Autocraft since at least July 2017, the Tribunal finds that the purpose for the grant of the Subclass 457 visa to the applicant no longer exists.

34. In submissions dated 21 November 2018, the applicant’s representative advised that the applicant is expecting his first child with his defacto partner, Australia citizen, Ms Kellie Lockie. An antenatal history and management plan from Ballarat Health Services was provided to evidence Ms Lockie’s due date of 11 March 2019. Further, a statement from Ms Lockie was provided outlining that she has been in a relationship with the applicant since 24 May 2018 and is expecting his child. Ms Lockie advised that the applicant has been supportive of her through her pregnancy and expressed hope that he could remain in Australia so that he might continue to provide support. In particular, Ms Lockie noted that she has a history of anxiety and post-natal depression and may find it difficult to cope without support.

35. At the hearing, the applicant advised the Tribunal that he is no longer in a relationship with Ms Lockie. He explained that the pregnancy was unplanned, but he wants to be here to help. The applicant felt it would be hard to be away from his new baby. At the date of decision, the Tribunal has received no confirmation of birth. However, the decision has been made with the assumption that the applicant is now father to a young child. The applicant outlined that his application for permanent residency had been refused by the Department.

36. The applicant’s representative highlighted that until the applicant ceased employment with Autocraft in circumstances outside his control, he was on the pathway to secure a Subclass 186 visa to remain in Australia. In submissions dated 21 November 2018, the applicant’s representative outlined that in addition to remaining with his child, the applicant wishes to remain in Australia to find employment in his field as a motor mechanic and defend himself at his upcoming criminal trial.

37. The Tribunal accepts that the applicant was working towards securing permanent residency in Australia and that he is father to an Australian child. These factors weigh against cancelling the visa. However, the Tribunal notes that the purpose for the grant of the Subclass 457 visa to the applicant no longer exists and the applicant has advised that he is required to remain in Australia to appear in respect of his criminal charges regardless of the Tribunal’s decision in this matter. These factors weigh in favour of cancellation.

    The extent of compliance with visa conditions and the visa holder’s past and present behaviour towards the Department

38. The Tribunal accepts that the applicant has not previously breached any visa conditions. There is also no evidence to suggest that the applicant has a history of difficulties, or lack of co-operation with the Department. However, the Tribunal notes that the applicant was not working for his sponsoring employer for about a year before he received the notice of intention to cancel his visa without having notified the Department.

39. At the hearing, the applicant confirmed that he has had no other compliance issues with the Department since arriving in Australia in 2009. This weighs in favour of the applicant.

    The degree of hardship that may be caused to the visa holder and any family members

40. The applicant gave evidence that he has some family in Australia and some in India. His sister and her husband and children live in Geelong, while his parents and other sister and her husband and son live in Punjab. The applicant has no dependents included on his Subclass 457 visa.

41. The applicant is - in all probability - the father of a young child here in Australia. The Tribunal accepts that it is likely the child will remain in Australia with its mother and that this may cause emotional distress to both the applicant and his former partner and in future their child.

42. The applicant is currently unable to work in Australia under the terms of his bridging visa. If returned to India, the applicant would be with his parents and his sister and her family. He would also be free to work in his trained profession as an auto mechanic.

43. If the applicant’s Subclass 457 visa is cancelled, he will remain on his bridging visa for 28 days. He may apply for a subsequent bridging visa, but there is a possibility that this would be refused and he would be detained in immigration detention pending the outcome of his criminal charges. The Tribunal notes that the outcome will be the same if the Tribunal does not exercise the discretion to cancel his visa as his substantive Subclass 457 visa has already expired.[4] The Tribunal therefore finds that any hardship caused by the cancellation of the applicant’s visa would be comparable to that experienced by the applicant if the discretion were not exercised. For this reason, the above factors have no weight in the consideration of exercising the discretion.

    [4] The Tribunal notes that if the applicant’s visa is cancelled, s.48 of the Act would prevent him from applying for certain types of visas. Section 48 would not prevent the grant of a criminal justice visa and no evidence was put forward to suggest that the applicant would be eligible for any visa that would be subject to the bar.

44. In submissions dated 28 February 2019, the applicant’s representative outlined that if the Department’s decision is affirmed by the Tribunal, it may impact on future bridging visa applications made by the applicant as a result of r.050.233, which requires the delegate to be satisfied that if a bridging visa is granted, the applicant will abide by the conditions imposed. A previous finding that the applicant has not complied with the visa conditions may lead the delegate to find that the applicant does not satisfy r.050.233. While prior compliance is not specifically listed as a consideration in departmental policy, the Tribunal accepts the proposition, however notes that the requirement is contained in cl.050.223 of Schedule 2 of the Regulations. The Tribunal further notes that this would not be an unintended consequence of the provisions, and therefore does not consider that it weighs against cancelling the visa.

    The circumstances in which the ground for cancellation arose

1. The policy suggests the Tribunal should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

2. As previously outlined, the applicant gave evidence that the circumstances that gave rise to the end of his employment with Autocraft were outside his control. Work dried up and his employer ceased paying his superannuation, tax and ultimately his wages.

3. The Tribunal also took evidence from Mr Cole who worked at Autocraft for five years until July 2016. Mr Cole gave evidence that he left because the company was in a bad financial position and he couldn’t bear to work for Mr McRae any longer. Mr Cole outlined that he took care of paper work while Mr McRae was on holiday and during that time people were questioning the status of orders they had placed for products from America. Mr Cole alleged that he contacted the distributors and was advised that Mr McRae had never paid for the products. Mr Cole further outlined that the company had not paid his superannuation and that he found Mr McRae to be generally unreliable and dishonest. The Tribunal accepts Mr Cole’s evidence and notes that it supports the applicant’s account of events. This weighs against exercising the discretion to cancel the visa.

4. While the Tribunal accepts that the mismanagement of the business and loss of work was outside his control, it is noted that the applicant went 12 months without notifying the Department that he was no longer working for his sponsoring employer. The applicant’s non-compliance with condition 8107 of his visa is substantial. The Tribunal considers that this weighs in favour of exercising the discretion to cancel the visa.

   Whether there are mandatory legal consequences to a cancellation decision

5. The Tribunal acknowledges that upon the cancellation of his visa, the applicant would become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s198 pending the outcome of his criminal trial. The applicant would also face restrictions on making a valid visa application onshore and restrictions under public interest criterion 4013 offshore as a result of the cancellation of his visa.

6. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116.

   Australia's international obligations

7. 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).  

8. The CRC stipulates that children have a right to know and be cared for by both his or her parents.[5] While this is a consideration, the Tribunal notes that the applicant will be free to apply for a visa offshore to return to Australia in the future,[6] and that no evidence was put forward to suggest that Ms Lockie and the child would be restricted from visiting the applicant in India. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s Subclass 457 visa.

   [5] Article 7

   [6] After the three year restriction imposed by public interest criterion 4013.

9. There is little in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Therefore, the Tribunal is satisfied that there is little in these matters to support the exercise of the discretion in the applicant’s favour.

   Any other relevant matters

10. The applicant has lived in Australia for approximately ten years. He attained trade qualifications and worked as a motor mechanic in a semi-regional location for three years, filling a skills gap in the Australian labour market. Until the current matter, there is no evidence of non-compliance with visa conditions by the applicant in the past. However, the Tribunal notes that the non-compliance in this case is significant and the applicant has been charged with serious criminal offences. Further, in an email from Detective Senior Constable Brendan Eames-Mayer, provided by the applicant in relation to his visa confiscation, it is noted that he failed to sign in on bail on Monday 18 September 2017. This behaviour demonstrates that the applicant has disregarded legal restrictions place upon him whilst in Australia.

11. Based on the evidence before it and taking into account all the relevant circumstances, on balance, the Tribunal finds that the reasons for exercising the discretion not to cancel the applicant’s Subclass 457 visa do not outweigh the reasons to cancel the visa.

    DECISION

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