Bansal (Migration)

Bansal (Migration) [2019] AATA 5657 (19 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rajiv Bansal
CASE NUMBER:  1915979
HOME AFFAIRS REFERENCE(S):          BCC2019/1449567
MEMBER:Antoinette Younes
DATE:19 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 19 August 2019 at 12:26pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Accountant – ceased employment with sponsor for over 90 days – resigned due to bullying and excessive hours – subsequent nomination applications refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 107, 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 June 2019 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). The visa was granted on 26 October 2015.
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107 attached to 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.
The applicant appeared before the Tribunal on 15 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.
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
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?
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(3)(b) attached to the applicant’s visa. This condition as it applies in the applicant’s circumstances requires that, if the visa holder ceases employment, the period during which the visa holder ceases employment must not exceed 90 consecutive days.
In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review.
Specifically, the Tribunal advised that:
·    The standard business sponsor that nominated the applicant in the most recently approved nomination for the visa is PUNJAB EXPRESS CARRIERS PTY LTD is (the sponsor). The applicant was nominated to work for the sponsor in the occupation of Accountant (General) (ANZSCO 221111).
·    Two subsequent nomination applications for the applicant to work for ANNANYA ISABELLE PTY LTD were refused on 28 September 2017 and 24 April 2018.
·    The nominated occupation is not one specified in the relevant instrument referred to in subclause 8107(3A) to exempt the applicant from having to comply with the requirements of subclauses 8107(3)(a)(ii). Consequently, while the applicant continues to hold the subclass 457 visa, he can only lawfully work in Australia for either the sponsor or an associated entity of the sponsor.
·    The Department received written notification from the sponsor that the applicant has ceased employment with the sponsor effective 12 January 2017.
Based on the above information, the delegate concluded that it appears that the applicant has not complied with condition 8107 attached to his visa.
On 9 May 2019, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant responded on 15, 16 and 23 May 2019. In a Statutory Declaration of 23 May 2019, the applicant provided explanations which are discussed in the decision.
In the course of the hearing, the applicant confirmed that he had ceased employment with the sponsor on 12 January 2017. He stated that he resigned from the position. He provided explanations discussed below.
On the basis of the available information, the Tribunal finds that the applicant breached condition 8107(1)(b) in the manner described in the s.107 notice.
For those 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 visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of 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’.
·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant gave evidence that he came to Australia in 2009 as the holder of a student visa. He completed a number of courses including an Advanced Diploma of Business and a Diploma of Tourism. He went to India and later returned to Australia on a student visa in 2013. He stated that in April 2013, he married an Australian citizen and applied for a partner visa which he was granted. However the permanent partner visa application was refused on the basis that his partner no longer supported the application. He stated that he lodged an application for review which he later withdrew. He applied for another student visa in May 2019 which has been refused.
The applicant gave evidence that he married an Indian national in January 2019 and that she currently lives in India. He stated that she has applied for a tourist visa but this has been refused.
The applicant acknowledged that had the subclass 457 not being cancelled, it would have expired in October 2019.
The Tribunal indicated to the applicant that it appears that he does not want to leave Australia and that his intention is to remain in Australia on a permanent basis. The applicant indicated that he has been out of India for approximately 10 years and he considers Australia his home. The applicant came to Australia to study and he did by completing courses. The Tribunal is satisfied that this is consistent with the applicant’s visa holder to travel to Australia. The Tribunal gives this aspect some weight in the applicant’s favour.
The applicant was granted a subclass 457 visa. The Tribunal acknowledges that the applicant wishes to remain in Australia, however, this is inconsistent with the 457 visa. He also applied for a student visa. Both of those visas are temporary visas and there cannot be an expectation of permanent residency on the basis of their grants.
The Tribunal does not consider that there is a compelling need for the applicant to remain in Australia. The Tribunal gives little weight in the applicant’s favour as far as this aspect of the consideration is concerned.
·the extent of compliance with visa conditions
The primary purpose of the subclass 457 is to enable an overseas skilled worker to work in Australia. The applicant has breached condition 8107(3)(b) attached to his visa. This condition requires that if the visa holder ceases employment, the period during which the visa holder ceases employment must not exceed 90 consecutive days. The Tribunal considers condition 8107(3)(b) to be a fundamental condition attached to the subclass 457 visa.
The applicant gave evidence that his boss who was a friend abused him and expected him to work unreasonable hours which led to his resignation.
The Tribunal asked the applicant if he advised the Department that he had ceased employment and he stated he did not because he was looking for another nomination. He stated he thought by applying for the student visa amounts to notifying the Department that he has ceased employment. The Tribunal questioned the applicant’s claims in this regard.
The applicant gave evidence that the poor representation he has had has caused all the problems.
The Tribunal acknowledges the applicant’s explanations. However, the Tribunal considers breach of condition 8107(3)(b) to be serious as it goes to the core of the purpose of the visa. The Tribunal has given this aspect significant weight in favour of cancellation.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence that he would like to remain in Australia and to be able to bring his wife so they can live together. He stated that he would encounter difficulties in adapting in India given that he has been in Australia for about 10 years.
The Tribunal is satisfied that the applicant may be required to leave Australia earlier than the initial cessation date of the subclass 457 visa which may cause financial and emotional hardship. There would be disappointment in the applicant not being able to pursue a career in Australia, something to which he had aspired.
The Tribunal recognises that cancellation of the visa has adverse impacts on the applicant, however, the Tribunal does not consider those impacts to represent a degree of hardship to mean that the visa should not be cancelled.
The Tribunal acknowledges that if the applicant’s visa were to be cancelled, he could be detained and be subject to removal from Australia. Given that those are intended legislative consequences, the Tribunal gives this aspect limited weight in the applicant’s favour.
Overall and for the above reasons, the Tribunal has given this aspect limited weight in favour of the applicant.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.
The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The ground for cancellation arose as a result of the breach of condition 8107(3)(b). In the Statutory Declaration provided in response to the NOITCC, the applicant stated that:
·After commencing employment with the sponsor, his boss started abusing him and blamed him for things irrespective of any actual wrongdoing. His boss insulted him in front of everyone. His boss asked him to work 15 to 16 hours daily despite the fact that the contract stipulated 8 to 10 hours of work a day. His boss knew that he had a driver’s licence so he pushed him to undertake deliveries and if he refused, the boss abused him.
·His sponsor never paid him a salary on time. He was not paid for 7 to 8 weeks and then he would be paid for two weeks. His sponsor told him that if he did not listen to him or act smart with him, he would cancel the visa.
·The inappropriate behaviour towards him worsened in October 2016 when his boss started to push him physically. After fearing for his well-being, he contacted immigration and they explained his rights. He was told by immigration that he could stop working for the sponsor and find another employer within 90 days.
·He found another employer who lodged a nomination for him in November 2016 and he stopped working for the sponsor around that time but did not commence with the new sponsor. That nomination was refused in September 2017. Another nomination was lodged but this was also refused in April 2018.
·He is still looking for a sponsor and it is to his understanding that he has complied with conditions of his visa including condition 8107.
In an email to the Department on 23 May 2019, the applicant’s representative essentially summarised the applicant’s explanations.
In oral evidence, the applicant reiterated that the boss who was formerly a friend was abusive and had unreasonable expectations in terms of work hours and commitments which led to the applicant resigning.
Although the Tribunal has some doubts about those claims the Tribunal gives those aspects some weight in the applicant’s favour. However, the applicant chose not to tell the Department that he had ceased working; he was trying to find other nominations and he did but they were unsuccessful. He did not depart Australia but later lodged a student visa which was also refused.
The evidence before the Tribunal indicates that the applicant had difficulties in obtaining a suitable nomination and instead he lodged a student visa, months after he had ceased employment with the sponsor. The Tribunal considers those matters to be within the applicant’s control and the Tribunal gives this aspect weight in favour of cancellation.
·past and present behaviour of the visa holder towards the department
The applicant responded to the NOITCC. However, he did not advise the Department that he had ceased employment with the sponsor. The Tribunal therefore gives limited weight in his favour.
·whether there would be consequential cancellations under s.140
There is no evidence of consequential cancellation in this case.
The Tribunal gives this aspect neutral weight.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation. If the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and in the applicant’s case, do not mean that the visa should not be cancelled.
The Tribunal gives this consideration neutral weight.
·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no evidence before the Tribunal that any international obligations would be breached in case of cancellation.
The Tribunal gives this consideration neutral weight.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The subclass 457 visa is a temporary visa intended to fill a shortage in the Australian labour market. The visa is not intended to be permanent and there is no expectation that the holder would eventually obtain a permanent visa.
The Tribunal gives this aspect neutral weight.
·any other relevant matters
There are no other relevant matters for the Tribunal’s consideration.
The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. There are factors in favour of cancellation and there are those against cancellation. The Tribunal considers the most significant factor in favour of the applicant to be the potential hardship that he would suffer in not being able to continue his employment in Australia. This however must be considered in the context of the circumstances that gave rise to the cancellation which weigh heavily in favour of cancellation.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Antoinette Younes

Senior Member

[2019] AATA 5657

19 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Breach

Jurisdiction

Statutory Construction