Baddam (Migration)

[2018] AATA 4181

Baddam (Migration) [2018] AATA 4181 (23 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Reddy Baddam

CASE NUMBER:  1706925

HOME AFFAIRS REFERENCE(S):           BCC2017/63242

MEMBER:Antonio Dronjic

DATE OF ORAL DECISION:  23 August 2018 at 11 a.m

DATE OF WRITTEN STATEMENT:         23 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 23 August 2018 at 2:40pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 90 days – applicant resigned stating family reasons – seeking a new sponsor – visa would have ceased but for cancellation – seeking to complete studies in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 348

Migration Regulations 1994, 2.12

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 March 2017 made by a delegate of the Minister for Immigration and Border Protection 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 breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 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 applied to the Tribunal on 3 March 2017 for review of the visa cancellation.

4. On 20 June 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 23 August 2018.

5. On 16 August 2018, the applicant submitted:

   ·A copy of the medical records form October 2016 related to his grandfather’s and father’s medical issues;

   ·A copy of the airline tickets as evidence of the applicant’s travel to India in October 2016;

   ·A copy of the notice of intention to consider cancellation (NOICC) dated 17 March 2017 according to which the applicant was sponsored and nominated by Minsys Australia Pty Ltd to work as an ICT Customer Support Officer. On 12 December 2016, the sponsoring business advised the Department that the applicant ceased employment on 31 October 2016;

   ·A copy of the applicant’s response to the NOICC dated 21 March 2017; and

   ·Copy of the applicant’s letter of resignation dated 1 October 2016 stating that the applicant is resigning from his position as ICT Customer Support Officer effective from that day.

6. The applicant appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. At the commencement of the hearing the applicant submitted a bundle of e-mails as evidence of his attempts to found employment in Australia.

7. The Tribunal informed the applicant that his visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that he had not complied with the condition of his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

8. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

9. The applicant is 29 years of age national of India. He is single and has no children. Prior to arriving in Australia as a holder of a student visa in April 2013, he lived in India where he completed a Bachelor Degree in Information Technology. He has been working in India for Google for a period of 12 months. He has no relatives in Australia.

10. He gave evidence that he did not complete Masters in Information Technology course that he studied in Australia. He stated that the Department granted him a Subclass 457 visa on 1 July 2014 based on sponsorship and nomination made by the Minsys Australia Pty Ltd. The visa was granted until 1 July 2018.

11. I explained to the applicant that, because his visa would have, but for the cancellation, ceased on 1 July 2018, the Tribunal has no power to reinstate the visa even if the cancellation is to be set aside. I further explained that as of 18 March 2018 it is no longer possible to apply for a Subclass 457 visa as it has been abolished and replaced with a new temporary working visa. The applicant confirmed that he understood the explanation.

12. He commenced a full time employment at Minsys Australia Pty Ltd in July 2014. On 1 October 2016, he tendered his resignation stating the family reasons. He ceased employment at this business on 31 October 2016. He travelled to India on 21 November 2016 and returned to Australia on 23 December 2016. Ever since his return to Australia he was trying to find the employment with an Australian business that is approved sponsor and was willing to nominate him for the position relevant to his nominated occupation. He was not successful.

13. He stated that in February 2017 he served food for a period of 2 weeks at a food court. In May 2017, the Department removed the ‘no work’ condition that was imposed on his bridging visa ‘E”. From August 2017 to the present day, the applicant has been working as an Uber driver.

14. I explained to the applicant that, based on the evidence before me, I am satisfied that he breached the condition 8107 that was imposed on his subclass 457 visa as the period during which the applicant ceased employment exceeded 90 consecutive days and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

15. I indicated that I will take into consideration the evidence given at the hearing as well as documentary evidence and submission provided in support of the application. I asked the applicant if there is anything else that he wants to raise with the Tribunal.

16. The applicant stated that he is and has been trying to find the new employment in his occupation with an Australian business that is willing to nominate him for the visa but was not successful. He further stated that he has only one more semester in order to complete his Masters in IT course that he commenced in 2013 and that he is the only bread winner for his family in India.

17. 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

18. 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?

19. 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. The condition 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant's visa, which was granted on 1 July 2014 and which, but for its cancellation, was valid to 1 July 2018.

20. Based on the evidence before it, including the oral evidence from the applicant, I find that the applicant ceased employment with the sponsoring business on 31 October 2016. I further find that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly I find that the applicant did not comply with condition 8107(3)(b).

21. For these reasons, I am 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

22. 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’.

23. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] 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.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, 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 Affairs [2006] 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]

24. 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

25. The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Minsys Australia Pty Ltd as an ICT Customer Support Officer. On 1 October 2016, the applicant resigned from his job, giving the employer four week notice. He ceased employment on 31 October 2016. He decided to remain in Australia and try to find a new employer. He stated in his evidence that he had been trying to find the new employment in his occupation with an Australian business that was willing to nominate him for a Subclass 457 visa since December 2016 but was not successful. That remains to be the case at the time of this decision.

26. Based on the evidence before me, I am satisfied that, as of the day of my decision, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.

27. As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker 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 a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor in October 2016.  I give significant weight to this consideration.

28. The applicant’s Subclass 457 visa would have ceased, but for the cancellation, on 1 July 2018. As explained to the applicant at the hearing, the Tribunal has no power to reinstate the visa that has ceased.

    The reason for and extent of the breach

29. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in October 2016. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant did not work in Australia from October 2016 until present time. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after more than 22 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

30. The applicant resigned from his employment stating the family reasons. Despite not being able to recommence employment for more than four months, the department did not proceed with the visa cancellation until 23 March 2017. I am satisfied on the evidence before me that the Department afforded the applicant sufficient time to secure the employment in Australia with an alternative business sponsor.

31. Based on the medical evidence and travel itinerary provided by the applicant, I accept that the reason for resigning from his job was his fathers’ and grandfathers medical condition. However, the applicant returned to Australia on 23 December 2016 but was and still is unable to secure employment with an alternative sponsor.

    Past and present conduct of the visa holder towards the department

32. There is no other evidence before me that the applicant previously breached visa conditions or that she was not co-operative with the Department.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

33. I have taken into consideration the applicant’s evidence that In India; he has completed a Bachelor Degree in Information Technology and has been working for Google for the period of 12 months. I considered the applicant’s evidence that he does not have any relatives in Australia, that he would like to complete his Masters’ degree and that he is the only bread provider for his family in India.

34. I accept that leaving Australia may involve some hardship to the applicant. Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant came to Australia on temporary visa which created no expectation of remaining in Australia permanently. I do not accept that the applicant would not be able to re-establish himself in India, given his education and employment background.   

35. As I explained to the applicant at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker 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 purpose of granting this visa is not to enable the applicant to work as an Uber driver or to complete his studies in Australia.

36. In any event, the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

    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

37. The applicant is currently on a bridging visa as a result of the current review process. 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 the case he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

38. 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 skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

    Whether there would be consequential cancellations under s.140

39. The tribunal finds that there are no consequential cancellations.

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

40. 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).  

41. 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. 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 visa.

    The impact on any victims of family violence

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

    Other relevant matters raised by the applicant

43. The applicant stated that he is the only bread provider for his family in India and that he would like to complete his Masters course commenced in 2013. Whilst I considered these matters I decided to give them limited weight as the purpose of granting this visa is not to enable the applicant to work as an Uber driver in order to financially support his family in India or to complete his studies in Australia.

44. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

    Antonio Dronjic
    Member