Bahia (Migration)

[2017] AATA 2726

Bahia (Migration) [2017] AATA 2726 (6 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bhupinder Singh Bahia

CASE NUMBER:  1708067

DIBP REFERENCE(S):  BCC2017/301411

MEMBER:John Cipolla

DATE:6 December 2017

PLACE OF DECISION:  Sydney

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 06 December 2017 at 2:36pm

CATCHWORDS
Migration – Cancellation – Subclass 457 (Temporary Work (Skilled)) visa – Position of Cafe/Restaurant Manager – Sponsor has been barred – Applicant was proactive in searching for an alternative sponsor – Had not breached other conditions of visas – Cooperated with the Department

LEGISLATION
Migration Act 1958 ss 48, 116, 116(1)(g), 116(3), 140M, 140M(1)(a) ,140M(1)(d)
Migration Regulations 1994 rr 2.43, 2.43(1)(I)(iv)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 April 2017 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)(g) due to the fact that prescribed grounds under r.2.43(1)(I)(iv) existed on the basis that the sponsor has been cancelled or barred under s.140M of the Act. The evidence indicates that the sponsoring business was the subject of a sponsorship bar under s.140M(1)(d) the effect of which meant the sponsor was precluded from making future applications for approval as a standard business sponsor for 12 months from 20 December 2017. The delegate considered whether to exercise discretion to set the cancelation of the applicant’s visa aside and concluded that the visa should be cancelled. 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 November 2017 to give evidence and present arguments.

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 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)(g). 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)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(I)(iv) is relevant.

8. The evidence before the Tribunal indicates that the applicant was granted a Subclass 457 visa on 28 February 2014. Prior to the grant of that visa, a nomination application lodged by the applicants sponsoring business Deogun Pty Ltd was approved by the Department. The business was sponsoring the applicant for the position of Cafe/Restaurant Manager. The evidence before the Tribunal indicates that on 20 December 2016 a Departmental delegate made a decision to cancel the approval of the sponsoring business as a standard business sponsor under s.140M(1)(d) of the Migration Act.

9. The evidence indicates that the prescribed ground for cancellation of the applicant’s visa is that defined in the Migration Regulations at r.2.43(1)(I)(iv). For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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.

   REVIEW HEARING

10. The Tribunal conducted a hearing on 14 November 2017 the applicant attended the hearing along with his representative and current partner Rasha Ismail who is an Australian citizen.

11. The Tribunal explained in detail the issues in review. Namely, whether the ground for cancellation under s.116(1)(g) existed and whether or not having regard to the relevant discretionary considerations the applicant’s visa should be cancelled.

12. The Tribunal took evidence from the applicant.  The applicant advised that he arrived in Australia in 2007 as the holder of a Student visa. The applicant advised that he was initially enrolled to undertake studies in a Masters of Accounting as he had completed a Bachelor of Accounting in India in 2006. The applicant advised that the Masters course was of 2 years duration but he only completed one semester as he was struggling with the contents of the course. The applicant advised that he sought release from the course which was granted and he transferred to a Diploma of Commercial Cookery, a course of 2 years duration which he completed successfully. The Tribunal noted that Commercial Cookery was an occupation that had been on the skilled occupations list and could lead to the grant of permanent residence. The Tribunal asked the applicant whether he transferred to this course as it offered him a pathway to permanent residence. The applicant advised that he transferred courses because of the difficulty he had with the Masters of Accounting, and that he was cognisant of the fact that the Commercial Cookery course would lead potentially to permanent residence.  The applicant advised that he made an application for a Skilled visa upon completion of this course but he failed the English language assessment relevant to the grant of that visa and hence his quest for permanent residence via this pathway was unsuccessful.

13. The applicant stated that during the time that he was in Australia he worked in the restaurant industry and that he initially worked for an extended period for a business in Manly called Last Train to Delhi. The applicant stated that he held a Subclass 457 visa from 2010 working for this business which eventually closed down. The applicant then obtained employment with a business called Flavour of Goa, a restaurant in Neutral Bay and his role was as the Cafe and Restaurant Manager.  His duties included managing staff, managing the roster, ordering food, coordination of the kitchen with the wait staff and overseeing bookings for the restaurant as well as the takeaway operations of the restaurant.

14. The Tribunal received a submission from the applicant’s representative dated 11 November 2017. By way of background the submission notes that:

    The applicant is a national of India. He was granted a Subclass 457 visa on 28 February 2014 for a period of 4 years on the basis of an approved nomination for the occupation of Cafe or Restaurant Manager lodged by his employer Deogun Pty Ltd (Deogun).  He worked at the Deogun’s premises in Manly.

    After May 2016, Deogun moved its premises to Neutral Bay (258 Military Road, Neutral Bay NSW 2089) and began trading under an associated entity Banger Pty Ltd (Banger).  Mr Singh continued employment under Banger.

    On 11 October 2016, Banger Pty Ltd applied for Standard Business Sponsorship approval, with the intention of transferring the applicant’s nomination to Banger.

    Although monitoring of Deogun began on 5 October 2016, Deogun was not made aware of this monitoring until 24 October 2017, when Banger was issued with a Notice of Intention to Take Action (NOITTA).

    As a result of the monitoring, on 20 December 2016 a delegate of the Minister made the following decision:

    Under s.140M(1)(a) of the Act to cancel the approval of the sponsor as a Standard Business Sponsor;

    Under s.140M(1)(d) of the Act to bar the sponsor for 12 months from making future applications for approval as a Standard Business Sponsor.

    As a result of the decision to sanction Deogun, the applicant was afforded 90 days to resolve his visa status, as per the conditions on his Subclass 457 visa. The 90 day period ended on 21 March 2017.

    On 22 March 2017 the applicant lodged a nomination position, attached to the pending Banger SBS approval application.

    On 23 May 2017, both the banger SBS approval application and the applicant’s nomination of position were approved.

15. The submission also made reference to the relevant discretionary considerations as to whether or not the visa should be cancelled. The submission noted that the applicant’s purpose of coming to and staying in Australia was to study and then work. The submission notes that the applicant ceased employment with his sponsor when the business was sanctioned on 20 December 2016.  It also notes that prior to the sanction Deogun was in the process of restructuring, and an SBS approval application for the associated entity, Banger, had been lodged the submission notes this was a circumstance clearly beyond the applicant’s control.

16. The submission notes that the applicant never breached any other conditions of previous visas held and there was no behaviour that would be of concern towards the Department. The submission notes that the applicant would suffer hardship if he was forced to return to India.

17. The submission notes that the applicant was in a long-term de facto relationship with an Australian citizen, his partner, Ms Rasha Ismail.  The submission notes that the applicant took reasonable steps to normalise his visa status after the decision had been made by the Department to sanction Deogun.  Annexed to the submission were a number of examples of online job searches that the applicant undertook in order to find a sponsoring employer within the 90 days and this was corroborated by evidence provided by the applicants de facto partner.

18. The submission notes that uncertainty surrounded the application by Banger for approval as a Standard Business Sponsor which led to delays in lodging a fresh nomination application by this business. The submission notes that the application was only made one day outside the 90 day period.

19. The submission notes that the applicant had not done anything untoward in his dealings with the Department and that having regard to each of these considerations that the applicants visa cancellation should be set aside.

20. On 17 November 2017 the Tribunal received a timeline of the applicants travel history in Australia along with his employment history. This document has been duly considered.

    Consideration of discretion

21. 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’.

22. The Tribunal first considered the purpose of the applicant’s travel and stay in Australia. The applicant travelled to Australia as the holder of a student visa. He subsequently applied for and was granted a Subclass 457 visa. A Subclass 457 visa is a temporary work visa that permits a holder to remain in Australia for a specified period to work in an approved occupation for an approved sponsor. The applicant was nominated in the occupation of Café and Restaurant Manager to work for Deogun Pty Ltd. In December 2016 Deogun Pty Ltd was barred for a period of 1 year under s.140M and this triggered the cancellation of the applicant’s visa. A new standard business sponsorship and associated nomination of position pertaining to the applicant lodged by Banger Pty Ltd was approved by the Department on 23 May 2017.  The Tribunal gives some weight to this factor in favour of not cancelling the visa. 

23. The applicant claims to have complied with all the conditions of visas he has held and there is no evidence before the Tribunal to suggest this is not the case. The Tribunal is also satisfied on the evidence before it that the applicant has been cooperative with the Department. The Tribunal gives some weight to the fact that the applicant’s visa was not cancelled due to a breach on his part.

24. The applicant is in a long term de facto relationship with an Australian citizen who runs her own business in Australia.  The Tribunal accepts the evidence of the applicant and his de facto partner that both of them would suffer emotional and financial hardship of the applicant has to leave Australia and return to India. The Tribunal gives weight to these factors with regard to the exercise of discretion.

25. It has been submitted that the circumstances in which ground of cancellation arose were beyond the applicant’s control.  The Tribunal acknowledges that the ground of cancellation arose as a consequence of the applicant’s former employer being sanctioned and accepts that this was a circumstance over which the applicant had no control. The Tribunal gives considerable weight to these circumstances in favour of not cancelling the visa.

26. The applicant has 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.

27. The Tribunal has also considered the consequences of the cancellation and accepts that if the applicant’s visa is cancelled he will be affected by s.48 of the Act and will have limited options to apply for another visa in Australia. The Tribunal notes that the applicant is in a long term de facto relationship with an Australian citizen and the Tribunal gives this factor weight in its considerations.

    CONCLUSION

28. Having considered the relevant circumstances, the Tribunal is of the view that the factors for cancelling the visa are outweighed by the factors for not cancelling the visa, including the circumstances under which the ground for cancellation arose, which the Tribunal has accepted were beyond the applicant’s control.

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

    DECISION

30. 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.

    John Cipolla
    Senior Member