Bishwokarma (Migration)

[2020] AATA 4814

Bishwokarma (Migration) [2020] AATA 4814 (16 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sunil Bishwokarma
Mrs Ganga Shrestha

CASE NUMBER:  2008817

HOME AFFAIRS REFERENCE(S):          BCC2019/3443862

MEMBER:Antonio Dronjic

DATE:16 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

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

Statement made on 16 November 2020 at 2:50pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ceased employment for more than 60 days – visa would have ceased in any case – new employer’s application for approval of nomination – applicant unable to apply for different visa class offshore because of COVID-19 travel restrictions – decision under review affirmed for first applicant, no jurisdiction for second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8607(5)

CASES

Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1459
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168

Rani v MIMA (1997) 80 FCR 379
Re Drake (No. 2) (1979) 2 ALD 634

Sakhno v MIAC [2007] FMCA 1492

Tien v MIMA (1998) 89 FCR 80
Vishnumolakala 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 25 May 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) 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 breached condition 8607(5), as the period during which the applicant ceased employment exceeded 60 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. 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.

   Background to the cancellation of the applicant’s visa

4. The decision record of 25 May 2020 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 24 October 2018, the applicant was granted a Subclass 482 visa, to remain valid until 24 October 2020;

   ·The standard business sponsor who most recently nominated the applicant to work as a Chef was Icejade Pty Limited (the sponsor);

   ·On 3 July 2019, the applicant ceased his employment with the sponsoring business;

   ·A notice of intention to consider cancellation (NOICC) was issued on 7 May 2020;

   ·On 25 May 2020, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 26 May 2020 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 26 October 2020, 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 10 November 2020.

6. On 9 November 2020, the applicant’s representative submitted a copy of an acknowledgment letter from the Department dated 11 June 2020 as evidence that the applicant’s new employer, Maharajas Kitchen Pty Ltd, applied to the Department for approval of a nomination under the Employer Nomination Scheme, nominating Mr Bishwokarma for a Subclass 186 visa.

7. The applicant appeared before the Tribunal via video link on 10 November 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

8. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing.

9. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. 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 a condition of his visa. Specifically, condition 8607, to which his visa was subject, prescribes in 8607(5) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicant.

10. 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.

11. Finally, the Tribunal explained that, because his Subclass 482 visa would have, but for the cancellation, ceased in any case on 24 October 2020, the Tribunal cannot reinstate his visa even if the cancellation was to be set aside.

12. The applicant is a national of Nepal. in His parents live in Nepal and his two sisters in Australia. One of his sisters is an Australian citizen and the other sister is a student visa holder. He owns a house and land in Nepal. That property is registered under his mother’s name.

13. Prior to arriving in Australia as the holder of a student visa in February 2014, he completed a Diploma in Hotel Management course in Nepal and worked as a cook from 2011 to January 2014. In March 2018 he married Mrs Ganga Shrestha, and his wife came to Australia in October 2018. Mrs Shrestha is a qualified nurse from Nepal where she gained one year of relevant work experience. Her parents live in Nepal and one of her two sisters is an Australian permanent resident.

14. In Australia, the applicant completed several hospitality related courses, including a Certificate IV and Diploma in Hospitality Management. He was granted a Subclass 482 visa on 24 October 2018, based on the sponsorship and nomination made by Nepalese restaurant ‘Muglan’ where he worked for a period of two months. He confirmed in his evidence that he was aware of the conditions imposed on his visa, including condition 8607.

15. In February 2019, he commenced employment at Icejade Pty Ltd after this business successfully nominated him to work there as a Chef. He gave evidence that he ceased employment at Icejade Pty Ltd on 3 July 2019. He stated that he wanted to find a better job, that he did not like working at the restaurant and that his employer did not want him there.

16. He did not work from July 2019 until May 2020. The applicant reiterated what he previously wrote in his submissions, that is, that he does not dispute that he breached condition 8607 imposed on his visa.

17. He was granted work rights by the Department on 26 May 2020 and on the same day he commenced employment at Maharajas Kitchen Pty Ltd. He is still working as a full-time cook at the restaurant operated by this business and is paid $25.00 per hour.

18. On 11 June 2020, Maharajas Kitchen Pty Ltd lodged a Direct Entry nomination application with the Department under the Employer Nomination Scheme. The applicant did not apply for a Subclass 186 visa as he was prevented by s.48 of the Act to do so from Australia. Because of COVID19 travel restrictions, he was unable to lodge an offshore application.  The applicant stated that his new employer offered to sponsor him for a temporary work visa but that he decided to pursue permanent residency instead.

19. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached condition 8607 that was imposed on his Subclass 482 visa, as the period during which he ceased employment exceeded 60 consecutive days, and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

20. The Tribunal indicated that it will take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application. It asked the applicant if there was anything else that he wanted to raise with the Tribunal.

21. The applicant stated that he relies on the same reasons as stated in his written submissions of 21 May 2020 provided to the Department in his response to NOICC. The applicant’s representative submitted that it is very difficult to find cooks and that the applicant’s new employer, Maharajas Kitchen Pty Ltd will be adversely affected if the applicant is no longer able to work there.

22. 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

23. 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?

24. 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. In this instance, condition 8607 is attached to the applicant’s visa. The condition in 8607(5) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 60 consecutive days.

25. As noted above, condition 8607 was attached to the applicant’s visa, which was granted on 24 October 2018, and which, but for its cancellation, was valid to 24 October 2020.

26. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 3 July 2019. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8607(5).

27. 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 power to cancel the visa should be exercised.

    Consideration of discretion

28. There are no matters specified in the Act or Migration Regulations 1994 (the 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’.

29. 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) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala 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].

30. 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

31. The Subclass 482 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.

32. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a Chef on a temporary basis. The applicant ceased his employment at the sponsoring business on 3 July 2019 because he wanted to find a better job and because the owners did not want him there.

33. The applicant decided to remain in Australia. The Tribunal accepts that the applicant managed to find new employment at Maharajas Kitchen Pty Ltd in May 2020. This entity nominated the applicant for a Subclass 186 visa by lodging an ENS nomination application under the Direct Entry stream with the Department on 11 June 2020. However, Maharajas Kitchen Pty Ltd did not sponsor and/or nominate the applicant for a temporary work visa.

34. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian company which is an approved standard business sponsor, and which has successfully nominated the applicant for a position within the business.

35. The Tribunal further finds that the applicant’s Subclass 482 visa would, but for the cancellation, have ceased on 24 October 2020 in any case.  It follows that it is no longer possible to reinstate his Subclass 482 visa.

36. 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 482 visa is 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 on 3 July 2019.  The Tribunal gives significant weight to this consideration.

    The extent of compliance with visa conditions

37. In his response to the Department’s NOICC, the applicant submitted that he did not commence employment with other employers because he did not want to breach the conditions imposed on his Subclass 482 visa. He stated that he abided by the visa conditions and will also comply with his future visa conditions. Based on the evidence before it, the Tribunal accepts that the applicant did not work for someone other than the last approved sponsor until the Department removed condition 8101 (no work) from his bridging visa E on 26 May 2020.

38. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in July 2019. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that nominated him for the position of a Chef within 60 days. This was contained in a condition of his visa, which stated if the employment ceases it ‘must not exceed 60 consecutive days’.

39. In May 2020, the applicant commenced employment as a cook at Maharajas Kitchen Pty Ltd.  He has continued employment at Maharajas Kitchen Pty Ltd to the present day, despite never being sponsored and nominated for a temporary work visa by this business.

40. The Tribunal finds that the applicant’s failure to commence employment with a new business that successfully nominated the applicant to work as a Chef in the more than 10 months since the original cessation of employment represents a significant breach of condition 8607.

    Degree of hardship that may be caused to the applicant

41. In his response to the Department’s NOICC, the applicant submitted that the visa cancellation will cause him severe financial hardship as he will not be able to continue living and working in Australia.

42. The Tribunal accepts that the applicant has been living in Australia since February 2014 and has completed various educational courses. It accepts that the applicant would like to stay in Australia with his wife.

43. The Tribunal has taken into consideration the applicant’s evidence that his parents live in Nepal, that he owns a house and land in Nepal and that both he and his wife completed education and gained several years of relevant work experience in their home country. The Tribunal is satisfied that the applicant would be able to re-establish himself in Nepal, given his education and work experience obtained in Australia and Nepal.

44. The Tribunal accepts that the applicant may experience difficulties in returning to his home country due to the travel restrictions in place as a result of the COVID-19 pandemic. The applicant and his wife may be able to apply for a bridging E visa that will enable them to remain in Australia temporarily until they are able to depart Australia. The Tribunal also notes that the Government has put in place several contingency options for visa holders who find themselves in Australia with limited options for returning home.

45. 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 a temporary visa, which created no expectation of remaining in Australia permanently.

46. The purpose of a Subclass 482 visa is to allow skilled workers to come to Australia and work for an approved business for a specified period of time.

    Circumstances in which ground of cancellation arose

47. The Tribunal notes that in his response to the Department’s NOICC, the applicant submitted that the sponsoring employer made him work more than 38 hours per week and was underpaying him. He also claimed that his employer was exploiting him, and that the employer’s behavior towards him was not good, which forced him to leave his employment. However, in his evidence given at the hearing, the applicant stated that he lost his job because he wanted to find a better one. He gave evidence that the business owners no longer wanted him to work at their restaurant.

48. The Tribunal accepts that the circumstances in which the ground for cancellation arose were partially beyond his control; nevertheless, it is in the context of a temporary visa for a specific purpose, which has now ceased.

49. The applicant ceased employment at the sponsoring business in July 2019. The Department did not proceed with the visa cancellation until 25 May 2020. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with an alternative business sponsor who successfully nominated the applicant for the position within its business.

    The impact on any victims of family violence

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

   Past and present conduct of the visa holder towards the Department

2. The Tribunal accepts the applicant’s claims that he has been co-operative with the Department and previously complied with visa conditions.

   Whether there would be consequential cancellations under s.140

3. Whilst the applicant’s wife’s visa was also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his wife.

4. Whether there are mandatory legal consequences to a cancellation decision whether indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s.46A, s.46B, s.48, s.48A, s.91E, s.91K and s.91P of the Act); and whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s.189, and liable for removal under s.198.

5. 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.

6. The Tribunal is mindful that s.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 s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visa, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

7. The Tribunal accepts that the applicant may be required to depart Australia in order to apply for a Subclass 186 or 482 visa. The Tribunal is satisfied that the applicant will not be prevented by Public Interest Criterion (PIC) 4013 from applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has an approved business nomination in relation to the applicant.

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

8. 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).  

9. There is no 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.

   Other relevant matters

10. The applicant’s representative submitted, and the Tribunal accepts, that the applicant’s new employer, Maharajas Kitchen Pty Ltd may be adversely affected if the applicant is no longer able to work there. The Tribunal acknowledges that the applicant’s new employer has applied to the Department for approval of a nomination under the Direct Entry Stream, nominating the applicant for the position within its business.

11. Finally, the Tribunal accepts the applicant’s claims that the COVID-19 pandemic has had an adverse impact on the Nepalese economy.

12. 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

13. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

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

    Antonio Dronjic
    Member