Boparai (Migration)

[2021] AATA 2402

Boparai (Migration) [2021] AATA 2402 (28 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harjot Singh Boparai
Mrs Sandeep Kaur

CASE NUMBER:  2018163

HOME AFFAIRS REFERENCE(S):          BCC2020/2258888

MEMBER:Vanessa Plain

DATE:28 June 2021

PLACE OF DECISION:  Melbourne

DECISION: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.

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

Statement made on 28 June 2021 at 06:17pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – work in other than most recently approved nominated occupation – chef working as heavy vehicle driver for unrelated company – circumstances not reasonably foreseeable – stood down from work as chef during COVID-19 restrictions – financial necessity and emotional hardship – effect of restrictions on hospitality sector – re-employed by sponsor when restrictions eased – consequences if cancellation affirmed – member of family unit – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Rani v MIMA (1997) 80 FCR 379
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 December 2020 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 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 8107(3)(a)(i) on the basis that the applicant did not work only in the occupation listed in the most recently approved nomination. 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.

4. The applicants appeared before the Tribunal on 24 June 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

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). 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 attached to the applicant’s visa.

9. The Delegate’s decision record contends that the applicant has not complied with subclause (3)(a)(i) of condition 8107 attached to their subclass 457 (Temporary Work (Skilled)) visa, which states:

   “8107

   (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) (as in force before 18 March 2018):

   (a)the holder:

   (i)   must work only in the occupation listed in the most recently approved nomination for the holder; and

10. The Delegate’s decision record of 15 December 2020 provides as follows:

    “The standard business sponsor who nominated the visa holder in their most recently approved nomination for the visa is Super 8 & Co Pty Ltd (the sponsor), who applied to nominate him to work at 303 Grattan Street, Melbourne, VIC in the occupation of Chef (ANSCO 351311).   The delegate assessing the application determined the tasks associated with the visa holder’s position were appropriate tasks commensurate with the occupation of Chef and approved the nomination on 08 September 2017.

    On 29 August 2020, Supply Chain Enforcement identified the visa holder during truck stop activity undertaken by Australian Border Force (ABF) at ACFS Victoria. During this interaction, the following information was obtained:

    ● The visa holder was driving for transport company, Rocke Brothers (ABN: 60 100 734 469), as a heavy vehicle/truck driver.

    ● AusCheck records reveal his MSIC was issued on 01 October 2019 under the Employer Name of MANDS Group P/L.

    ● Further information indicates that MANDS Group comes under the following entity:  M&S Group Pty. Ltd. trading as M&S Transport Solutions (ABN 27 615 870 454).

    ● The listed address for this business is 15 Tourmaline Street, Tarneit, VIC 3029

    ● Further information obtained by the ABF indicates that M&S Group Pty. Ltd. is a subcontractor of Rocke Brothers.

    ● Information available to the Department indicates he is employed by M&S Group Pty Ltd, in the position of heavy vehicle driver.

    ● He holds a heavy vehicle driver’s licence for the state of Victoria (class MC), under licence number 097616515, and which expires 17 August 2021.

    ● M&S Group Pty Ltd and/or Rocke Brothers Pty Ltd do not appear to be associated to Super 8 & Co Pty Ltd.

    ● There are no records to indicate either the visa holder or his Registered Migration Agent have contacted the Department about the change of employment.”

11. Based on this information, it appeared that the applicant had not complied with subclause (3)(a)(i) of condition 8107 attached to his visa because it appeared that he had not been working only in the occupation listed in his most recently approved nomination. As such, there appeared to be grounds for cancelling the applicant’s Temporary Work (Skilled) class UC (subclass 457) visa under s116(1)(b) of the Act because it appeared that he had not complied with a condition of the visa.

12. A Notice of Intention to Consider Cancellation dated 1 July 2020 (NOICC) was sent to the applicant at their nominated address.  The applicant responded via his registered migration agent on 17 November 2020, 23 November 2020 and 30 November 2020 respectively.  The applicant agreed in his responses that there are grounds for cancellation of his visa.  He stated that his employment at Super 8 Pty Ltd (the sponsor) between 1 July 2020 and 29 November 2020 was temporarily postponed.   

13. On 9 June 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 24 June 2021.  The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case.  The Tribunal has read and considered the documents submitted by the applicant. 

14. The applicant provided the following documents to the Tribunal:

    (a)The delegate’s decision record

    (b)Applicant’s Student (subclass 573) grant (visa label) – grant date 20 May 2008

    (c)Applicant’s Student (subclass 572) visa grant notice – dated 17 October 2014

    (d)Acknowledgement letter for applicant’s lodgement of Temporary Work (Skilled) (Subclass 457) visa – dated 15 June 2017

    (e)BVA grant notice in association with lodgement of Temporary Work (Skilled) (Subclass 457) visa – dated 15 June 2017

    (f)Applicant’s Temporary Work (Skilled) (Subclass 457) visa grant notice – dated 08 September 2017

    (g)Indian Passport of visa holder – Expiry 08 June 2026

    (h)Indian Passport of dependent spouse – Expiry 05 October 2028

    (i)Statutory Declarations by the visa holder and dependent spouse – dated 16 November 2020

    (j)Statutory Declarations from Jaskaran Singh and Karanvir Singh dated 22 November 2020

    (k)Applicant’s notice of assessment for the year ending 30 June 2018, 30 June 2019, and 30 June 2020

    (l)Bank Statements 

    (m)Signed submission from the applicant’s current sponsor, Super 8 & Co Pty Ltd, by Billy Sakkas, Director dated 23 November 2020

    (n)Further signed submission from Billy Sakkas in relation to the applicant being stood down from 01 July 2020 and a return to employment on 30 November 2020.

    (o)Payslips from Super 8 & Co Pty Ltd for the period 29 August 2019 – 24 June 2020

    (p)Individual PAYG summary forms of visa holder for the financial years of 2018 and 2019.

    (q)Legal submissions  

15. 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 their visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that they had not complied with the conditions of their visa. Specifically, the 8107 condition to which their visa was subject, prescribes in 8107(3)(a)(i).

16. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

17. At the hearing, the applicant candidly informed the Tribunal that he was working as a truck driver for a brief period between July and November 2020, because he was stood down from his work as a Chef, due to the COVID pandemic.  He was not terminated nu his employer, but his employer told him he would call him when he has work for him.  The applicant was incredibly distressed, he has no money for food or rent and took the job as a truck driver to make ends meet. 

18. Based on the applicant’s evidence, the Tribunal finds that the applicant started working as a truck driver for Rocke Brothers in July 2020 until November 2020 and that this business is wholly unrelated to his employment with his nominating sponsor.  The Tribunal therefore finds that the applicant has not worked only in the occupation listed in the most recently approved nomination for the applicant, being a chef at Super 8 & Co Pty Ltd in Gratten Street, Carlton.  Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(a)(i).

19. For these reasons, the Tribunal finds 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

20. 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’.

21. 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 and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for

22. 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.

    Purpose of applicant’s travel to and stay in Australia

23. The Subclass 457 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. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for the Super 8 & Co Pty Ltd restaurant as a chef. 

24. The delegate’s decision record reveals that the department was notified by the sponsor on 23 November 2020 that the applicant had not ceased his nominated work duties as a chef and remains an employee and employee of the business. The applicant was merely ‘stood down’ from his employment due to the “legal impediments to the conduct of its business due to COVID-19.”  The further submission from Mr Sakkas makes it plain that he wishes the applicant to resume his employment at the restaurant if is visa status permits and it is plain that the applicant resumed his duties in late November 2020 in any event. 

25. As the department has made it clear that being “stood-down” from employment due to COVID-19 will mean that a visa holder of a subclass 482 or 457 will maintain a valid visa, the Tribunal finds that there is no evidence before it to suggest that the applicant’s original intention for travel to and stay in Australia is not aligned with the intention of his Temporary Work (Skilled) (subclass 457) visa.  It is plain that the applicant candidly acknowledges that he worked as a truck driver for a brief period of several months between July 2020 and November 2020 out of financial desperation only.

26. The Tribunal affords this consideration minor weight in favour of not cancelling the visa.

    The extent of compliance with visa conditions

27. The non compliance with a visa condition arose when the applicant started working as a truck driver between July 2020 and November 2020, instead of in his role as a chef with his nominating employer. 

28. The applicant rectified the breach in November 2020 and ceased working as a truck driver.  The only reason he did work as a truck driver was due to absolute financial necessity borne out of the COVID pandemic. 

29. The Tribunal places significant weight upon the fact that the applicant has held student visas prior to obtaining his subclass 457 working visa and there is no evidence before the Tribunal of any other non compliance with visa conditions.  The applicant emphatically assured the Tribunal that he has always complied with visa conditions in the past and he is embarrassed and remorseful about his conduct.  The Tribunal has no reason not to accept that evidence.

30. There was a discrepancy between the applicant’s statement as to the timing of the visa breach and the agent’s submission as to the period being 5 months.  It is clear that the period in question in 5 months, having regard to the applicant’ bank statements and Mr Sakkas’ statement.  The Tribunal is satisfied the applicant was working as a truck driver for a period of 5 months only. 

    The circumstances in which the ground for cancellation arose

31. The ground for cancellation arose when on 29 August 2020 when the Australian Border Force via its Supply Chain Enforcement identified the applicant during truck stop activity undertaken by Australian Border Force (ABF) at ACFS Victoria. It became apparent that the applicant was not working in the occupation listed in as his most recent occupation, thereby enlivening grounds under s116(1)(b) for being in breach of his visa condition 8107.

32. Neither the applicant nor his registered migration agent contacted the Department about the change of employment. The applicant was made aware at the time of grant of his Temporary Work (Skilled) (subclass 457) visa of the conditions imposed upon the visa and the requirement to abide by these conditions during the prescribed period of stay in Australia.

33. The applicant started working as a truck driver between July 2020 and November 2020, despite being approved to work as a chef only at his sponsor’s restaurant in Carlton, Victoria.  ceased their employment at the sponsoring business in January 2020.

34. In his oral evidence, the applicant candidly admitted that he worked as a truck driver and was embarrassed and remorseful for having done so, but he concisely and frankly submitted that he did so due to severe financial hardship due to being stood down from his position as a chef due to the pandemic.  He stated that he was placed under significant psychological and emotional pressures and worked as a driver to pay for food, rent and to save for a permanent residency application, which he ultimately did not proceed with. 

35. The Tribunal takes these matters into account and considers that the adverse financial circumstances that arose as a result of the pandemic were not such as were reasonably foreseeable or within the control of the applicant.

36. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

37. The Tribunal has considered the applicant’s oral evidence wherein he claimed that he would suffer severe emotional, financial and psychological hardship if he were forced to depart Australia as a result of the breach of his visa condition.

38. The applicant has spent over 10 years in Australia and undoubtedly developed ties to the Australian community.  He stated that he has little reason to return to India however he also informed the Tribunal that he has not proceeded with his application for permanent residency in Australia. 

39. The Tribunal acknowledges that a cancellation outcome would most likely result in acute emotional and financial hardship for the applicant in these circumstances.

40. The Tribunal has taken into consideration the applicant’s evidence and the hardship the applicant faces.  It particularly acknowledges that it is presently difficult to leave the country due to Covid and it acknowledges that the applicant, as a worker in the hospitality industry, has been afflicted by the COVID-19 pandemic to a degree largely unparalleled in other sectors of the economy.  

41. Balanced against any potential hardship to the applicant and their family 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. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

42. The Tribunal acknowledges that the applicant will suffer some hardship and gives this consideration some minor weight against cancelling the visa. 

    The visa holder’s past and present behavior towards the Department

43. The applicant responded to the NOICC promptly and concisely. There is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

44. The Tribunal gives this consideration some minor weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

1. There is no evidence before the Tribunal of any other people being dependent upon his visa and as such would be consequentially cancelled under s140 of the Act.  

2. As there is no evidence before the Tribunal as to any consequential cancellations, the Tribunal does not give this factor any weight for or against a decision to cancel the visa for this consideration.

   Legal consequences of a decision to cancel the visa

3. 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 them to remain in Australia. If that is the case, they have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

4. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act because they breached the 8107 condition imposed on their visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa.

5. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

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 visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

7. 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 they do not voluntarily depart Australia.  These are mandatory and intended consequences of the legislation.  However, given the matters set out above, the Tribunal considers that theses consequence in the circumstances of this case would be manifestly unfair.

8. The Tribunal therefore gives this consideration some weight against cancelling the visa.

   Australia’s international obligations

9. 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).

10. There is no evidence before the Tribunal as to whether the applicant has children in Australia.

11. The Tribunal therefore does not give any weight for or against cancelling the visa for this consideration.

    The impact of any victims of family violence

12. There is no evidence before the Tribunal regarding this issue.

    Any other relevant matters

13. There is evidence before the Tribunal as to the difficulty in returning to the applicant’s home country due to Covid-19.

14. The Tribunal acknowledges that the applicant may experience difficulties in returning to the United Kingdom due to the travel restrictions in place as a result of the COVID-19 pandemic. The Tribunal observes that in this regard the Government has put in place several contingency options for visa holders that find themselves in Australia with limited options for returning home and that relevant information is available on the Department’s website.

15. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.  There are no other relevant matters before the Tribunal. 

16. The matters set out above do not reveal any bad faith on the part of the applicant, having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa.

17. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

19. 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.

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

    Vanessa Plain
    Member

    
    
    

Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala 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].