CHALISSERY (Migration)

[2020] AATA 3458

CHALISSERY (Migration) [2020] AATA 3458 (13 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr NIDHIN CHALISSERY

CASE NUMBER:  1913920

HOME AFFAIRS REFERENCE(S):          BCC2019/459846

MEMBER:Andrew George

DATE:13 May 2020

PLACE OF DECISION:  Darwin

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

Statement made on 13 May 2020 at 6:51pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased work for more than 60 consecutive days – applicant did not secure new employment with an approved sponsor nor apply for alternative visa – prolonged breach of visa conditions – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 May 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant “… has not complied with paragraph 8107(3)(b) of condition 8107 attached to the visa, because it appears that he has ceased employment with the sponsor for a period exceeding 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. The applicant appeared before the Tribunal on 21 November 2019 to give evidence and present arguments.

4. 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

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?

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 8107(3)(b) attached to the applicant’s visa. This condition requires that the applicant must not cease employment for 60 days or more.

7. The Tribunal accepts the evidence of the applicant that he ceased employment with the nominator on 6 July 2018. The applicant is presently working as a taxi driver.

8. There is no evidence before the Tribunal that the applicant worked for an approved sponsor since 6 July 2018, which a period of 60 days or more. This constitutes a breach of condition 8107(3)(b). For this reason, 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

9. 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’.

10. The applicant adopted as evidence his email to the Department of Home Affairs dated 18 April 2019 at 3:37pm. It would seem that the applicant left the employment of his nominated employer under unfortunate circumstances, the broad nature of which is further repeated in an email to the Department of Home Affairs dated 29 August 2018 at 11:57am. The applicant also adopted as evidence a short undated letter sent to the Tribunal. The effect of this letter is that the applicant wishes to apply for a Skilled – Nominated (Subclass 190) (Permanent) visa.

11. The Tribunal notes an invitation from the Department of Home Affairs dated 10 May 2019 inviting the applicant to apply for a Subclass 190 visa. The applicant did not successfully lodge an application. By this stage the applicant had not worked for an approved sponsor for 308 days. He was already in clear breach of his visa conditions.

12. Towards the conclusion of the hearing the Tribunal gave the applicant an oral invitation to under s.359AA of the Act to respond to, or comment on, information that the Tribunal considered may be a reason, or a part of the reason, for affirming the decision under review. The particulars of that information were that the applicant had ceased employment with an approved sponsor and that the applicant since failed to secure new employment with an approved sponsor. The Tribunal granted the applicant until 6 January 2020 to reply, in part to allow the applicant to get the assistance from a registered migration agent should he so require it. This timeframe would allow any registered migration agent to listen to the audio transcript of the hearing and reply accordingly.

13. On 6 January 2020 the Tribunal received a letter dated 23 December 2019 from Mr Michael Jean Juinio of Barrel & Cruse Bistro. This letter stated, “I have given a job offer to Nidhin Chalissery as a sous chef in barrel & cruse bistro and I am waiting to lodge the new nomination as a chef”. This letter was accompanied by a note from the applicant requesting that he be able to work with the new employer on his 457 visa.

14. As at the date of decision, there is no evidence before the Tribunal of Barrel & Cruse Bistro having in fact been lodged the visa nomination that it refers to. There is also no evidence of the applicant having found work with another approved sponsor. As at the date of decision, the Tribunal is satisfied that the applicant has not been employed by an approved sponsor for 677 days.

15. The Tribunal is unaware of any compelling need for the applicant to remain in Australia, or any particular hardship that might be caused by his visa cancellation. Although the applicant may have initially lost his employment for reasons beyond his control (and the Tribunal does not make this finding), nevertheless such time has transpired that it is reasonable to expect that the applicant would have secured further employment with an approved sponsor. This has not occurred and the applicant’s breach of his visa conditions is now prolonged.

16. The Tribunal notes the delegate’s decision and that the applicant will become an unlawful non-citizen and liable for detention and removal if his visa is cancelled and he does not voluntarily depart Australia. Likewise, he would have limited options of applying for further visas while in Australia. However, this consideration is given less weight than the applicant’s prolonged breach of his visa conditions.

17. There are no other relevant matters before the Tribunal and, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Andrew George
    Member