Dabhi (Migration)

[2017] AATA 2769

Dabhi (Migration) [2017] AATA 2769 (20 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashish Savnathsinh Dabhi

CASE NUMBER:  1708662

DIBP REFERENCE(S):  BCC2017/197588

MEMBER:Catherine Carney-Orsborn

DATE:20 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2017 at 10:17am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Requirement for period of unemployment not to exceed 90 days – Applicant unemployed for a period greater than 90 days – Failure to notify department of breaches – Complicity in breach of sponsors

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 April 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Business (Long Stay)) 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 that the applicant had not complied with a condition of his visa. 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 19 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

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 or the Tribunal 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 if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days.

7. On 3 December 2016 the Department received written notification from the sponsor that the applicant had ceased employment with the sponsor effective 1 December 2016.  The applicant in his response to the Department’s Notice of Intention to Cancel the Visa stated that “there is no doubt I left that job on 3 December 2016 but there were serious reasons due to which I was forced to leave that job”.

8. It is not in dispute that the applicant ceased employment and that period has exceeded 90 consecutive days.

9. 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

10. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

11. The Tribunal has before it the Department’s file including documents and submissions provided by the applicant.

12. A summary of the applicant’s oral evidence at hearing is as follows.  He was born in India.  He has a wife and two twin daughters living in India and going to school.

13. He first came to Australia in 2007 on a student visa.  He was studying Horticulture however the college lost its accreditation and he started to study Hospitality in Sydney.

14. He finished that course and then studied a Diploma of business management.  He applied for a skilled visa however did not satisfy the English requirement.  He returned to India.

15. He was then nominated by the sponsor for a permanent visa.  He claims he paid the sponsor money for the nomination.  The nomination was unsuccessful.  He claims they did not return his money.  They then nominated him for the 457visa.   This was successful.  He was granted that visa by the Department on 29 august 2015.

16. He claimed that the company which sponsored him sponsored many workers.  He claims they took money from all their workers and made them work long hours.  He said he worked 24/7.

17. He claims he was forced to hand back part of his wages.  He was forced to do housekeeping when he was sponsored as a Cook.  He complained about this behaviour however his sponsors threatened him that they would remove his sponsorship.

18. He said they took money from him for super however then told him there was no super.

19. The Tribunal asked if he reported any of this behaviour to the Department or Fair Work Australia or sought any assistance.

20. He replied that he did not as he wanted to stay in Australia.  The applicant supplied to the Tribunal evidence which is a cleaning schedule showing the hours and work her undertook for the sponsor. 

21. His evidence is that after he said he would not live-in at the Motel (as this would entail more work) he was sacked.  He tried to find another sponsor and job.  He found two restaurants who said they would sponsor him but they both wanted money to sponsor him. The Tribunal asked if he reported those businesses to the Department or any other authority he said he did not.

22. The Tribunal pointed out that by him working as a cleaner and not a Cook he was in breach of a condition which says he must only work in the occupation he was nominated for.  The Tribunal pointed out that by paying the sponsor/nominator and not working as a Cook or reporting the bad behaviour he was complicit in the breach.  He replied that he wanted to keep working and bring his family to Australia.

23. The Tribunal asked how the applicant was supporting himself.  He said that he worked in Flemington markets to pay the rent and keep going.  He had also stayed at the home of friends.

24. He said his purpose was to stay in Australia permanently and work.  He wanted to do the skilled work he was employed to do however he had no option but to so whatever work the sponsor gave him.

25. He worked in India as a medical representative of a pharmaceutical company.  His wife is a housewife. He also worked part-time in a friend’s restaurant in India.

26. The Tribunal asked him what hardship he would suffer if he returned to India.  He said he was already 45 years old and for his financial future he needs to have a chance in Australia.    

27. He never contacted the Department or other authorities in Australia to report the behaviour of the sponsor and other businesses who all demanded money to sponsor him as they would threaten to send him back to India. He said the wife of the sponsor was particularly bad and threatened him.

28. He claims that in the 14months he worked for them he only had 7-8 days off.  He said he has paid off all the debts he had in relation to his wife’s IVF. 

29. He provided correspondence from the Department which indicated that his sponsor had been investigated by the Department in March 2016.  He did not know the outcome of the investigation.  He said he was never given a payslip.  The Tribunal said that he has been in breach of his condition for some time and his family is in India.  The Tribunal asked why he did not return to India.  He replied he wanted to stay in Australia and work.

30. The purpose of the (short term) Temporary Work (Skilled) subclass 457 visas is to fill a skill shortage and work in Australia for an approved sponsor in a skilled occupation which the applicant was specifically nomination to work in and which could not be filled from within the Australian workforce.

31. The applicant’s evidence is that he wants to work in Australia however he has not worked for an approved sponsor since 3 December 2016.  He has been in breach of his visa conditions since 3 December 2016 and according to his oral evidence has been in breach since he arrived as he was not, only working in the occupation for which he was nominated and he paid the sponsor to nominate him.

32. He claims that he complained about doing cleaning work for the sponsor and was sacked.  His evidence in relation to how he was treated and that he had to pay money to the business who nominated him was persuasive however his evidence and the evidence on the Department file indicates that he never notified the Department of any breach of the conditions and only contacted the Department after they sent him a notice of intention to cancel his visa.  He did not seek any redress for the treatment he and other workers suffered from any other authority including Fair Work Commission.   Even when his employment ended he sought other employment which would have required him to pay money to the prospective sponsors. 

33. The Tribunal finds that this behaviour which undermines the integrity of the 457 visa is complicit in the abuse of the system.  The Tribunal has some sympathy for the applicant and his wish to stay in Australia for economic benefits however the applicant has participated in the breach by initially paying money for sponsorship and continuing to participate when he knew he was not doing the work he was sponsored to do.  His evidence is that he was sacked when he refused to live-in in one of the sponsor’s motels and work longer hours.     After his employment ended the applicant did not notify any appropriate authorities of the breaches but sought to be sponsored by new businesses who sought payment.  He did not return to India and worked in jobs for which he had no approved sponsor.   The applicant continued to breach the conditions of his visa.

34. The applicant’s evidence is that he will suffer financial hardship if he returns to India.  The Tribunal is not persuaded that this would be the case given his evidence is that he was never paid a proper amount by his sponsor and was exploited by being forced to work long hours without a break.  He had previously worked in India.  He has a wife and two daughters in India.  He has acquired skills in Australia being his Diplomas in cooking and business Management.  He has improved his English skills.  The Tribunal is satisfied that these skills would assist him in securing employment in India.

35. There are no other persons in Australia whose visas would be cancelled as a consequence of the applicant’s visa being cancelled.

36. The Tribunal has considered all the evidence.  The purpose of the visa is for temporary work in Australia for an approved sponsor.  The applicant has been in breach of the condition for over a year.  The visa is a short term working visa and not a permanent visa. 

37. On the evidence before it the Tribunal is not satisfied any international obligations would be breached. 

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

    DECISION

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

    Catherine Carney-Orsborn
    Member