Bedi (Migration)

[2021] AATA 4066

Bedi (Migration) [2021] AATA 4066 (13 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nikhil Mahindra Bedi

CASE NUMBER:  2102802

HOME AFFAIRS REFERENCE(S):          BCC2020/714459

MEMBER:Michael Cooke

DATE:13 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 13 October 2021 at 12:55pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant breached condition 8507 – approved standard business sponsor -  applicant ceased employment for a period exceeding 60 consecutive days – Tribunal approved the sponsorship of sponsor – applicant is now the subject of an approved sponsorship –– decision under review set aside

LEGISLATION
Migration Act 1958, ss 116,140

CASES
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 March 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage 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 not complied with condition 8607. 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 was represented in relation to the review by his registered migration agent.

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?

   s.116(1)(b) - non-compliance with conditions

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 condition 8507 attached to the applicant’s visa. This condition requires If the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

7. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa is AUSTRALIAN MOTEL HOLDINGS PTY LTD (‘the sponsor’), whose nomination was approved on 16 October 2019. The sponsor advised the Department that the visa holder ceased employment with them effective 01 February 2020. This indicates he has not complied with condition 8607(5) because the period during which he ceased employment had exceeded 60 consecutive days. Based on this information, there appeared to be grounds for cancelling the visa holder’s visa under s116(1)(b) of the Act because he has not complied with condition 8607.

8. The applicant provided the following reasons to the delegate:

   ·He confirms he resigned from his position with the sponsor on 31 January 2020;

   ·He states that he subsequently secured a position with a new employer and commenced working with them on 14 April 2020;

   ·He states his new employer received notification of approval as a standard business sponsor on 19 June 2020;

   ·He states that even in the face of unprecedented crisis in the hospitality industry, he has secured employment, and his employer has undertaken to sponsor him in a nominated position;

9. The applicant disagreed that he had breached the condition, but this was based on his misunderstanding. He thought that his new sponsor (SOURAB GROUP) has secured approval as a business sponsor at the time he began to work for it (14 April 2020). In fact, that business sponsorship application lodged by the new employer to nominate the visa holder was subsequently refused on 26 October 2020 according to the delegate’s decision record (submitted by the applicant).

10. The applicant’s sponsor (SOURAB GROUB) then sought (successful) review of the sponsorship refusal before the Tribunal. Therefore, at the time of the delegate’s decision the applicant did not hold a valid nomination with an approved sponsor.

11. On 12 October 2021 the Tribunal approved the sponsorship of the SOURAB GROUP (AAT 2016092). The applicant is thus now the subject of an approved sponsorship. 

12. For these 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

13. 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’.

    Consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·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

14. The applicant was granted a Temporary Skill Shortage visa on 28 January 2020 to work in a nominated occupation for an approved sponsor. The Department received notification from the sponsor, AUSTRALIAN MOTEL HOLDINGS PTY LTD, that he ceased employment with them effective 01 February 2020.

15. He submits that following his resignation from his position with the sponsor, he immediately attempted to secure employment with a new sponsor. He states that on April 14, 2020, he commenced work with Sourab Group Pty Ltd at the Angels Rest Motel. He claimed that his new employer was approved as a standard business sponsor on 19 June 2020. However, information before the Department indicated that the business sponsorship application lodged by the new employer to nominate the visa holder was refused on 26 October 2020.

16. However, the Tribunal has approved the sponsorship application on review. The applicant now currently is the subject of an approved sponsorship with that same employer.

17. The Tribunal gives this consideration maximum weight against cancellation.

    ·the extent of compliance with visa conditions

18. The Tribunal considers the requirement to maintain employment with an approved sponsor is a fundamental condition for the grant of a Temporary Skill Shortage visa. Saying that the applicant appeared to believe that he was the subject of an approved sponsorship when he began employment with SOURAB GROUP but was not. He did transfer to the new company within the 60 days requirement, however at the time of the delegate’s decision he did not work for his approved sponsor. Importantly, he was over the 60 days stipulation in the visa condition. As has been revealed, he is now the subject of an approved sponsorship.

19. The Tribunal gives this consideration some weight in favour of cancellation.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

20. In his response to the NOICC, the applicant submitted that a decision to cancel his visa would have a negative impact on his professional ambitions. He is now ensconced with his new sponsor employer. His sponsor has informed the Tribunal that he has been a significant part in the success of his business venture. The Tribunal (as part of the sponsorship review) observed enhanced profits were made since his arrival - despite the terrible impact of the COVID pandemic. He is also a highly qualified person.

21. The Tribunal considers that visa cancellation would cause some psychological, emotional, financial and/or other hardship to the applicant and financial damage to his employer in a major tourist regional NSW town (Moree).

22. Therefore, the Tribunal gives this consideration maximum weight against cancellation.

    ·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

23. The ground for cancellation arose because the applicant ceased employment with the approved sponsor on 1 February 2020. He then secured new employment on 14 April 2020, but his employer did not get approval at first as a sponsor. The applicant submitted to the delegate that despite the difficulties he faced in attempting to secure employment in the current circumstances (resulting from the COVID-19 pandemic) he did so with a new sponsor. As a result of a Tribunal review his sponsor (SOURAB GROUP) has now been approved with him as the nominee.

24. Therefore, the Tribunal gives this consideration significant weight against cancellation.

    ·past and present behaviour of the visa holder towards the Department

25. The applicant provided a response to the NOICC within the specified timeframe. There is no other information before the Tribunal to suggest he has been uncooperative with the Department or Departmental staff.

26. The Tribunal gives this consideration significant weight against cancellation.

    ·whether there would be consequential cancellations under s.140

27. Not applicable

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

28. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. He would also be affected by section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia. Cancellation under these grounds does not impose a Public Interest Criterion 4013 risk factor, so cancellation will not prevent him from being granted a temporary visa in the future.

29. The Tribunal gives this consideration significant weight against cancellation.

    ·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

30. Not applicable.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

31. Not applicable.

    ·any other relevant matters

32. The applicant appears from his sponsor’s submission to be a very capable and qualified employee. The Tribunal finds this is a significant consideration as he is working for an employer who provides accommodation in a significant tourist regional town in NSW.

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

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Michael Cooke
    Senior Member