Bhargava (Migration)

[2019] AATA 2998

Bhargava (Migration) [2019] AATA 2998 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ricky Bhargava
Ms Deepti Sharma

CASE NUMBER:  1829185

HOME AFFAIRS REFERENCE(S):          BCC2018/761274

MEMBERS:Bridget Cullen (Presiding)

Jens Streit

DATE:9 May 2019

PLACE OF DECISION:  Brisbane

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 09 May 2019 at 12:08pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC)–- Subclass 457 (Temporary Work (Skilled)) – ceased employment with sponsor exceeding 90 consecutive days – failed to notify the Department of cessation of employment with sponsor – lengthy period of time in Australia – unable to find work with another sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), condition 8107(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 September 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa (visa) under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had not complied with the requirements of visa condition 8107(3)(b). The applicant was required to work in the occupation listed in the most recently approved nomination. On 14 February 2018 the applicant’s visa work sponsor advised the department in writing that the applicant had ceased employment with the sponsor effective 17 May 2016. The delegate assessed certain factors applicable to the applicant. The delegate was satisfied the grounds for cancelling the visa outweighed the grounds not for cancelling the visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

5. The applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Deepti Sharma, the applicant’s wife.

6. 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

7. 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) of the Act, namely that the applicant has not complied with a condition of his visa. 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?

8. 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 was attached to the applicant’s visa. The delegate considered that the applicant had not complied with the requirements of visa condition 8107(3)(b). An extract of Visa Condition 8107 is attached at the bottom of this decision.

9. The delegate’s decision record, provided to the Tribunal by the applicant in conjunction with the review, reflects that the applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa to worked for an approved sponsor, namely Sharma Enterprises LP (the sponsor).  The sponsor ceased trading on 17 May 2016.

10. On 14 February 2018, the sponsor advised the Department of Home Affairs (the Department) in writing that the applicant had ceased employment with them, effective 17 May 2016.

11. The delegate’s decision record reflects, and the applicant admits, that he ceased employment with his approved sponsor on 17 May 2016.  The Tribunal finds that the period in which the applicant has ceased employment with the sponsor exceeded 90 consecutive days.

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’.

    Circumstances in which cancellation arose

14. The applicant gave evidence to the effect that he arrived in Australia in March 2009 and then remained in Australia pursuant to a student visa. He gave evidence that he worked at a Coles Supermarket during the period 2009 to 2012 whilst he was a student. He was subsequently granted a visa to work for the sponsor.

15. In 2015, the applicant commenced working as the business manager for the sponsor, which operated a hairdressing salon located in Mount Isa. When on holidays, the applicant would travel to, and stay in Brisbane, where his wife was living. Whilst holidaying in Brisbane, he discovered that his sponsor had closed its business without advising him.

16. The applicant gave evidence that since losing his employment on 17 May 2016, he has unsuccessfully attempted to find a new sponsor.  The Tribunal considers it significant that the period in which the applicant claims he has searched for, but been unable to locate a new sponsor, is on the cusp of being two years in duration.  As the purpose of the Subclass 457 visa scheme was to facilitate the ability of Australian businesses to utilise overseas labour in circumstances where there was a shortage of Australian labour, the applicant’s inability to locate a sponsor for such a lengthy period is contrary to the purpose of the visa scheme and a factor that weighs strongly in favour of cancellation.

    Extent of compliance with visa conditions

17. The applicant acknowledged that he was aware that Condition 8107 attached to his visa, and further that the period during which he ceased employment from his approved sponsor must not exceed 90 days. 

18. Despite this awareness, the applicant admits that he did not reply to the Department’s Notification of Intention to Consider Cancellation, issued to him on 18 June 2018 by the Department.

19. The Tribunal considers it significant that the applicant, despite awareness, did not inform the Department of the loss of his employment.  The Tribunal considers that this overt lack of compliance with visa conditions is a factor that weighs strongly in favour of cancellation.

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

20. The applicant has lived in Australia for more than 10-years since his first arrival in March of 2009.  He gave evidence the he and his wife were married in India in 2012, and that she arrived in Australian in 2013. They do not have any children.

21. The applicant and his wife do not have any family in Australia. The applicant asserts that their families will not accept them back in India, but did not provide any supporting detail. 

22. He asserted that due to his age (32 years old time of the hearing), that it would be hard for him to return and find a job in India. He told the Tribunal that he has acquired a Bachelor of Arts degree, as well as a Diploma and Advanced Diploma of Management.  Despite these qualifications, as he has no work experience in India, he says that it will be difficult for him to gain employment.

23. The applicant’s wife is working as a cleaner in Australia, and she would lose her employment if his visa was cancelled.

24. The Tribunal accepts that there will be some financial, psychological, and emotional distress occasioned to both the Applicant and his wife as the result of cancellation.  The Tribunal accepts that they wish to remain in Australia, and that they genuinely believe that they will have a better life if allowed to stay.  These factors weigh slightly in favour of not cancelling the visa, but must be weighed in the context of the temporary nature of the subclass 457 visa scheme. 

    International obligations

25. There is no evidence before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.

    Any other relevant matter

26. The Tribunal considers that a stay in Australia on a temporary visa such as the subclass 457 visa is, by its nature, temporary and will ultimately come to an end resulting in the visa holder’s departure from Australia. The expectation of the applicant could only have been to remain in Australia temporarily.  Were it not for cancellation, the Tribunal notes that the visa would expire on 3 May 2020. 

27. The applicant’s lack of compliance with Visa Condition 8107, in failing to notify the Department his work with his sponsor had ceased, together with the lengthy period of time that he has now been present in Australia, unable to find work with another sponsor, are factors that weigh strongly in favour of cancellation, and outweigh the personal and financial distress that will be occasioned to the applicant and his wife, as a consequence of having to leave Australia approximately one-year earlier than the temporary visa permitted.

28. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

30. The Tribunal has no jurisdiction with respect to the second named applicant.

    Bridget Cullen
    Member

    
    

    Jens Streit
    Member

    
    

    8107    

    (1)  If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a)  cease to be employed by the employer in relation to which the visa was granted; or
    (b)  work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
    (c)  engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

    (2)  If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)  cease to undertake the activity in relation to which the visa was granted; or
    (b)  engage in an activity inconsistent with the activity in relation to which the visa was granted; or
    (c)  engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

    (3)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)  the holder:

    (i)  must work only in the occupation listed in the most recently approved nomination for the holder; and
    (ii)  unless the circumstances in subclause (3A) apply:

    (A)  must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
    (B)  if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
    (C)  if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor; and

    (aa)  subject to paragraph (c), the holder must:

    (i)  if the holder was outside Australia when the visa was granted—commence work within 90 days after the holder’s arrival in Australia; and
    (ii)  if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted; and

    (b)  if the holder ceases employment—the period during which the holder ceases employment must not exceed 90 consecutive days; and
    (c)  if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder:

    (i)  must hold the licence, registration or membership while the holder is performing the occupation; and
    (ii)  if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and
    (iii)  if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and
    (iv)  must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and
    (v)  must comply with each condition or requirement to which the licence, registration or membership is subject; and
    (vi)  must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and
    (vii)  must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.

    (3A)  For subparagraph (3)(a)(ii), the circumstances are that:

    (a)  if the nomination was made before 1 July 2010—the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or
    (aa)  if the nomination is made on or after 1 July 2010—the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or
    (b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

    (3B)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):

    (a)  the holder must work only in the occupation or position in relation to which the visa was granted; and
    (b)  if the holder ceases employment—the period during which the holder ceases employment must not exceed 90 consecutive days.

    (4)  If the visa is:

    (a)  a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
    (b)  a Subclass 402 (Training and Research) visa; or
    (ba)  a Subclass 420 (Temporary Work (Entertainment)) visa;

    the holder must not:

    (c)  cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or
    (d)  engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or
    (e)  engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.