Chhetri (Migration)

[2021] AATA 4653

Chhetri (Migration) [2021] AATA 4653 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ravi Chhetri
Mrs Anamika Chhetri
Miss Anaira Chhetri

CASE NUMBER:  2107678

HOME AFFAIRS REFERENCE(S):          BCC2020/2899556

MEMBER:Antonio Dronjic

DATE:25 October 2021

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 other applicants.

Statement made on 25 October 2021 at 10:07am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant has not complied with condition 8607 – applicant ceased employment – prospective employer did not sponsor or nominate the applicant for the position within their business – decision under review affirmed – no jurisdiction with respect to the other applicants

LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 2

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors 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 8 June 2021 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) of Schedule 8 to the Regulations, 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 other applicants’ visas were 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 those other visas 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 them.

   Background to the cancellation of the applicant’s visa

4. The decision record of 8 June 2021 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 January 2020, the applicant was granted a Subclass 482 visa, to remain valid until 24 January 2022.

   ·The standard business sponsor (SBS) who most recently nominated the applicant to work as a cook was Mesa 3 Pty Ltd (the sponsor).

   ·On 22 November 2020, the applicant ceased his employment with the sponsoring business.

   ·A notice of intention to consider cancellation (NOICC) was issued on 20 April 2021.

   ·On 24 April 2021 and 7 May 2021, the applicant responded to the NOICC. He conceded that he breached condition 8607(5), as the period during which he ceased employment exceeded 60 consecutive days.

   ·On 8 June 2021, 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 14 June 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 20 September 2021, 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 video hearing scheduled for 21 October 2021.

6. On 18 and 19 October 2021, the applicant’s representative submitted:

   ·Legal submissions;

   ·Applicant’s Statutory Declaration dated 19 October 2021; and

   ·Undated letter from Mr Papagelou, the owner of Lemoncello restaurant located in Cairns, stating that the business is willing to sponsor Mr Chhetri if the Tribunal reinstates his visa.

7. The applicant appeared before the Tribunal on 21 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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 applicants.

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. The applicant is a citizen of Nepal. He is married and has a daughter who is eight months old. The applicant has five brothers, one sister and parents who are living in Nepal. He does not have any relatives in Australia. His wife has two brothers, a sister and mother who are also living in Nepal. Prior to arriving in Australia in July 2008 as a holder of a student visa, the applicant completed the equivalent of year 12 in Nepal. Neither he nor his wife own property in Nepal.

12. In Australia, the applicant completed:

    ·Certificate III in commercial cookery;

    ·Diploma in Hospitality Management;

    ·Certificate IV in Business; and

    ·Diploma and Advanced Diploma in Business

13. The applicant confirmed in his evidence that he was granted a Subclass 482 visa on 24 January 2020, based on the nomination made by Mesa 3 Pty Ltd. He ceased employment at the sponsoring business on 22 November 2020. He resigned from his job position due to a variety of workplace related issues including being threatened by his employer, an unsafe workplace, and unfriendly and stressful work environment.

14. He did not work from November 2020. He was granted a bridging visa E that was subject to no work and no study conditions. He gave evidence that in July 2021, his wife was granted both work and study rights by the Department. She is currently employed as an aged care worker. However, he is still prevented from working in Australia by the conditions imposed on his bridging visa.

15. The applicant confirmed in his evidence that on 22 April 2021, his wife applied for a student visa and that he and his daughter are included in that application as dependent family members. He stated that he does not know what is happening with this visa application as they have not received any decision from the Department.

16. The applicant conceded that he breached the condition 8607 imposed on his visa. He gave evidence that he managed to find a new employer who is willing and ready to nominate him for a position within their business if the applicant is successful with this review application.

17. The Tribunal acknowledged that it received an undated letter from Mr Papagelou, the owner of Lemoncello restaurant, stating that the business is willing and able to sponsor and nominate him if the Tribunal reinstate his visa.

18. The Tribunal noted that in April 2021, in his response to the NOICC, the applicant stated that he was offered employment by Lemoncello restaurant. The Tribunal enquired if the business lodged applications for approval of sponsorship and nomination application with the Department noting that the business had almost six months to do so.

19. The applicant stated the owner of Lemoncello’s restaurant is not familiar with the sponsorship and nomination process as this is a newly opened restaurant. The applicant’s representative submitted that he has instructions from the restaurant owner to prepare and lodge a sponsorship and nomination application for a Subclass 482 visa if the Tribunal reinstates the applicant’s visa.

20. The Tribunal observed that the prospective employer was not prevented from applying for sponsorship and nomination approval regardless of the outcome of this review application and that they had almost six months to do so.

21. 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.

22. The Tribunal indicated that it would 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.

23. The applicant stated that he read the submissions prepared by his representative and that he relies on the same reasons as stated in these submissions. He reiterated that his daughter will not be able to go to Nepal because of the COVID-19 pandemic situation in that country. He further stated that the health system in Nepal is not as good as the one in Australia.

24. On 21 October 2021, the applicant’s representative submitted a copy of the statutory declaration signed by Mr Papagelou, the owner of Lemoncello restaurant, stating that he instructed the applicant’s representative to apply for approval of sponsorship and nomination for a Subclass 482 visa as soon as possible. The applicant’s representative requested that the Tribunal adjourns making its decision for two weeks in order to provide evidence of lodgement of sponsorship and nomination applications with the Department.

25. On 22 October 2021, the Tribunal wrote to the applicant advising him that, after considering the circumstances of this case and the fact that the prospective employer has had almost six months to lodge sponsorship and nomination applications with the Department, the Tribunal decided to refuse the applicant’s request for adjournment of the making of its decision. The Tribunal indicated that it would take into consideration any submissions or documentary evidence submitted by the applicant prior to the Tribunal making its decision.

26. 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

27. 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?

28. 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.

29. 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 22 November 2020. 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).

30. 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

31. 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’.

32. 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].

33. 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

34. 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.

35. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a cook on a temporary basis at Mesa 3 Pty Ltd. The applicant ceased his employment at the sponsoring business on 22 November 2020. He claims that he was subjected to repeated abuse and exploitation by the management of the sponsoring company.

36. The applicant decided to remain in Australia as a holder of a bridging visa E that was subject to a no-work (8101) condition. In June 2021, the applicant applied to the Department to have the no-work condition removed from his bridging visa. According to his evidence, this application was not successful. He is still not allowed to work in Australia.

37. In his response to the NOICC, the applicant claimed that he managed to find new employment at Lemoncello restaurant located in Cairns. According to the primary decision record provided by the applicant with his review application, in his response to the NOICC he claimed that he had an interview and was offered full-time employment in April 2021.

38. The prospective employer had almost six months to prepare and lodge the sponsorship and nominations applications with the Department. They have not done that. Instead, they provided an undated letter stating that the employment offer is conditional upon the applicant’s visa being reinstated by the Tribunal. As observed at the hearing, the prospective employer was not prevented from applying for sponsorship and nomination approval regardless of the outcome of this review application.

39. Based on the evidence before it, including the applicant’s oral evidence, the Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian business which is an approved standard business sponsor and which has successfully nominated the applicant for a position within the business.

40. 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. The Tribunal gives significant weight to this consideration.

    The extent of compliance with visa conditions

41. The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 22 November 2020. He claims that he resigned from this job as he was subjected to repeated abuse and exploitation by the management of the sponsoring company.

42. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that nominated him for the position of a cook 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’.

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

44. The Tribunal accepts that the applicant’s child was born on 5 February 2021 and that the applicant’s efforts to secure new employment were disrupted by the birth of his daughter. The applicant stated and the Tribunal accepts that he abided by other visa conditions and will also comply with his future visa conditions.

    Degree of hardship that may be caused to the applicant

45. In his submissions of 18 October 2021, the applicant’s representative submitted that the applicant and his family would face considerable financial hardship because of the cancellation decision. The applicant submitted that he is the main bread winner and that his family relies on him for financial support. He further stated that his wife recently gave birth to their daughter which has had a significant impact on their already strained financial situation.

46. The Tribunal accepts that the applicant is renting an apartment in Cairns and if the visa remains cancelled and he is required to leave Australia, he may breach that tenancy agreement. The Tribunal further accepts that the applicant and his family have been under financial and psychological stress since he ceased employment in November 2020.

47. The applicant claims that if the visa remains cancelled, he will face ‘the threat of prolonged unemployment in Nepal’ due to the pandemic and will face extreme financial hardship that will directly affect his wife and child. While the Tribunal accepts that the employment opportunities in Nepal may not be as good as in Australia, the Tribunal notes that the Subclass 482 visa is a temporary visa of limited duration and should not create any expectation of remaining in Australia permanently.

1. The Tribunal has taken into consideration the applicant’s evidence that his siblings and his parents live in Nepal, and that both he and his wife completed the equivalent of year 12 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.

2. The applicant submitted that he has a job offer in Australia. As noted above, the applicant claims that he was offered a full-time position at Lemoncello restaurant in April 2021. Despite this offer, the prospective employer did not sponsor or nominate the applicant for the position within their business. The offer of employment was conditional upon the Tribunal reinstating the applicant’s visa.

3. The Tribunal accepts that the applicant has been living in Australia since July 2008 and that he established considerable personal and social ties with the Australian community.

4. The applicant claims that it is dangerous for him and his family to return to Nepal because of the COVID-19 pandemic and that travel to Nepal is not possible due to the current COVID-19 health pandemic.

5. 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 may be able to apply for a bridging visa E that will enable him and his family 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.

6. The applicant claims that his wife is enrolled in a course of study in Australia and that she will have to discontinue her study mid-term if the cancellation is not set aside. The Tribunal notes that in his evidence, the applicant stated that his wife was granted both work and study rights. She is currently employed as an aged care worker. In any case, the purpose of granting a Subclass 482 visa is not to allow the applicant’s spouse to study in Australia.

7. 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.

   Circumstances in which ground of cancellation arose

8. The applicant resigned from his employment on 22 November 2020. He claimed that his employer was exploiting him, that he was verbally threatened and that his employer made racist remarks, which forced him to leave his employment.

9. 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.

10. The applicant ceased employment at the sponsoring business in November 2020. The Department did not proceed with the visa cancellation until 8 June 2021. 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

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

    Past and present conduct of the visa holder towards the Department

12. 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

13. Whilst the applicant’s wife’s and daughter’s visas were 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 and child.

    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

14. 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 can 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.

15. 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 of the Regulations 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.

16. The Tribunal is satisfied that the applicant will not be prevented by Public Interest Criterion (PIC) 4013 of Schedule 4 to the Regulations 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.

17. 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.

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

18. 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).  

19. The Tribunal is satisfied that in the circumstances of this case, cancellation would not lead to removal. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

20. The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interests of the child is a primary consideration. However, this consideration does not preclude visa cancellation. Taking into account the rights and duties of his or her parents, the Tribunal is satisfied that it is in the best interest of the applicant’s child to remain with her family.

21. The applicant claims that removing the applicant’s child from Australia during a global pandemic will be detrimental to the best interests of his daughter. He further claims that in Nepal, the applicant’s child faces decreased living standards, including limited access to educational and health facilities, and will not be provided the same opportunities a young child in Australia would.

22. Whilst the Tribunal accepts that standard of living, health cover and hospitals may be better in Australia than in Nepal, the Tribunal notes that a Subclass 482 visa is a temporary visa of limited duration and should not create any expectation of remaining in Australia permanently.

23. 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. Based on the evidence before it, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements.

24. 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

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

26. The Tribunal has no jurisdiction with respect to the other applicants.

    Antonio Dronjic
    Member