DARSHAN SINGH (Migration)

[2018] AATA 5267

DARSHAN SINGH (Migration) [2018] AATA 5267 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DARSHAN SINGH

CASE NUMBER:  1805796

HOME AFFAIRS REFERENCE(S):           BCC2017/4614545

MEMBER:Alan McMurran

DATE:11 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 December 2018 at 5:09pm

CATCHWORDS
MIGRATION – Subclass 457 (Temporary Work (Skilled)) visa – cancellation – ceased employment with sponsor – no response to tribunal communication – employment terminated by employer – second nomination refused by department – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 2, condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 February 2018 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 ceased his employment with his sponsor effective 29 May 2017, in breach of the visa condition that required the applicant to work only for the approved sponsor in the nominated occupation. 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 did not appear before the Tribunal.

4. On 12 October 2018, the Tribunal sent a letter to the applicant requiring a response on or before 26 October 2018. The applicant did not respond to the Tribunal’s letter and lost any entitlement he might otherwise have had to appear to give evidence and present arguments.

5. As at the date of decision, the Tribunal has received no response from the applicant or from any representative on behalf of the applicant. The Tribunal has proceeded to consider this review on the basis of the information before it as at the date of decision.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Background

7. The applicant is a 31-year-old citizen of India. According to the Department’s movement record, the applicant first arrived in Australia on 12 January 2009, at Adelaide, travelling on a student visa.

8. The applicant’s student visa subclass TU 572 was renewed onshore on 23 July 2013, and again on 14 November 2014.

9. On 6 August 2016, the applicant was granted a subclass 457 visa to work in the occupation of customer service manager (ANZSCO 149212) for the sponsor, RPM INFOSYS Pty Limited, the nomination having been approved on 10 June 2016, and the visa being valid till 6 August 2020.

10. On 5 June 2017, the sponsor informed the Department that the nominee’s employment had been terminated, the termination initiated by the sponsor by notice on 29 May 2017, and the nominee was provided 4 weeks’ notice, expiring 29 June 2017.

11. On 31 October 2017, a further subclass 457 nomination application was lodged naming the applicant as nominee for the occupation of transport company manager (ANZSCO 149413).

12. That nomination application was refused by the Department on 8 December 2017.

13. Since that time, there have been no further nomination applications to the Department on behalf of a sponsor, with the applicant as the named nominee.

14. The applicant has not resumed employment with his original sponsor and has made no contact with the Department since 25 January 2018, when the applicant provided his contact details to the Department by email.

15. On 6 February 2018, the Department sent the applicant a Notice of intention to consider cancellation (the notice) of the applicant’s subclass 457 visa. The notice invited the applicant to comment in reply. The notice was sent by email to the address provided by the applicant.

16. The applicant did not respond and on 28 February 2018 the Department cancelled the applicant’s subclass 457 visa. The same day, the Department informed the applicant by email of the cancellation.[1]

    [1] DOHA file f 12

17. From 28 February 2018 until the date of decision, there has been no further information from the applicant.

18. On 7 March 2018 the Tribunal sent a letter to the applicant, acknowledging receipt of the application for review. The letter provides information to the applicant about the review process in the Tribunal, with an information sheet, which includes a paragraph under the heading “Can I provide further information or evidence?”

19. The Tribunal’s information sheet tells the applicant “if you have not already provided a copy of the Department’s decision, or any other material which you believe supports your application, including a statement explaining why you disagree with the department’s decision, please do so as soon as possible”.

20. Following constitution of the matter to a member, the Tribunal sent a further letter dated 12 October 2018 inviting the applicant to comment on or respond to information, and to provide information. That letter was sent by email and required a response by 26 October 2018, failing which the applicant lost any entitlement he might otherwise have had under the Act to appear and give evidence and present arguments.

21. The applicant has not responded to either of those letters.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. In considering this review, the Tribunal has before it the Tribunal’s file, and the information contained on the Department’s file[2]. There have been no submissions for or on behalf of the applicant.

    Does the ground for cancellation exist?

    [2] BCC2017/4614545

    S.116 (1)(b) - non-compliance with conditions

24. 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 was attached to the applicant’s visa. This condition requires that the visa holder, when issued with the visa to enable the holder to be employed in Australia, must not:

    a.cease to be employed by the employer in relation to which the visa was granted; or

    b.work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    c.engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

25. The condition 8107 attaches to the last substantive visa held by the applicant, being a subclass 457 skilled visa granted on the basis the applicant must work only in the occupation listed in the approved nomination.[3]

    [3] Condition 8107 relevantly requires that if the visa is, or 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 (b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 60 consecutive days

26. The Tribunal notes that the notice (issued by the Department) in this instance tells the applicant (at page 4 of the notice) that “the Department received written notification from the sponsor advising you ceased employment with them effective 29 May 2017.”

27. The Tribunal has had regard to the information provided by the Department and in particular the email from the sponsor dated 5 June 2017[4]. The information from the employer in the email states:

    “Please further note that we wish to bring to your attention changes in our circumstances which involves winding up our business or a few parts of our business activities which further means that we would not require the nominated position in our business anymore.

    In reference to this, we have referred to the employment contract issued to our nominated employee (the applicant) and have provided him with the termination notice as required under the employment contract.

    Date of termination notice 29 May 2017

    No. Of Weeks prior to termination  4 Weeks”

    [4] DOHA file f 24

28. The Tribunal has interpreted this to mean that the termination notice issued from the sponsor on 29 May 2017 terminated the applicant’s employment 4 weeks later on 29 June 2017.

29. The Tribunal finds therefore that the actual date of termination was 29 June 2017 and not 29 May 2017 as specified in the Department’s notice. As a consequence of condition 8107 (3) (b) if the applicant ceased employment, the period during which he ceased employment must not exceed 60 consecutive days.

30. A period greater than 60 days has elapsed since 29 June 2017 and the applicant has not resumed employment since the date of termination.

31. The Tribunal finds therefore that the applicant is in breach of condition 8107 (3), regardless whether the termination date was as stated on 29 May 2017, or 29 June 2017.

32. 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 visa should be cancelled.

    Consideration of discretion - How should it be exercised?

33. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion.

34. 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’.

    Purpose of the applicant’s travel to and stay in Australia

35. On the information available to the Tribunal, the Tribunal finds as follows.

36. The applicant originally came to Australia on 20 January 2009 as a student. In June 2016, the applicant remained in Australia to enable him to work on a temporary 457 visa issued to him following a successful nomination by the sponsor.

37. Between June 2016 and June 2017 the applicant worked for the sponsor. On or about 29 June 2017, the applicant was terminated by the sponsor for reason that the sponsor was “winding up” parts of its business. The Tribunal is satisfied the termination was not brought about by any conduct or any issue on the part of the applicant, but was initiated by the sponsor.

38. Since that time, the applicant has been unable to find any suitable alternative employment and in December 2017 a further business sponsorship nomination application on his behalf was refused by the Department. As at the date of decision, the applicant is not employed by the sponsor and on the information available to the Tribunal, has not found suitable or other employment or been nominated for or obtained a substantive visa.

39. The applicant was aware of the condition 8107 attached to his visa and the Tribunal is not aware of any information, facts, matters or circumstances to the contrary. The Tribunal infers that the applicant was aware of the need to obtain alternative employment from a sponsor and to be successfully nominated, as indicated in the further nomination application made on his behalf and refused on 8 December 2017.

40. The applicant was made aware by the notice from the Department of the impending cancellation and the need to take steps in order to rectify his visa status. On the information available, the Tribunal finds the applicant has not done so.

41. The Tribunal finds there are no relevant facts matters or circumstances relating to the applicant’s travel and stay in Australia which might warrant the exercise of discretion not to cancel the visa. The Tribunal is not aware of any other purpose or compelling need for the applicant to remain in Australia.

    Extent of compliance with visa conditions

42. There is no information before the Tribunal that the applicant sought advice or considered whether any other option might have been open to him considering his employment.

43. There is no information that the applicant has taken any steps to regularise his visa status since the last unsuccessful nomination in December 2017.

44. Since the cancellation of the visa by the Department, the applicant has effectively become unlawful since he holds no other substantive visa or bridging visa and there is no information to show he has acknowledged or accepted his obligations in respect of the cancelled visa, as he has not communicated with the Department.

45. The Tribunal finds that there is nothing in relation to the applicant’s conduct or compliance in respect of the visa conditions which would warrant the exercise of discretion in his favour not to cancel the visa, and noting that a considerable period of time has elapsed since the employment was terminated in June 2017 and the applicant notified of the cancellation by the Department in February 2018.

46. The Tribunal takes account of the fact the termination of the employment was due to no fault of the applicant. But taking into account the time since those events and the notification given to the applicant, on balance the Tribunal finds there is no reason in the Tribunal’s view to exercise the discretion not to cancel the visa.

    Degree of hardship that may be caused

47. The Tribunal accepts that there may be a degree of hardship faced by anyone whose visa is cancelled and who must return to their country of origin.

48. There is however no information at all before the Tribunal as to how the applicant might be affected by this decision.

49. The Tribunal finds there is no information as to what arrangements the applicant intends to make to leave the country, although it is clear he will have an opportunity to tidy his affairs and make appropriate travel arrangements without being detained, and while remaining in the community to do so, and to make application for an appropriate bridging visa in those circumstances.

50. On balance, the Tribunal finds that absent any information concerning the applicant’s well-being or any anticipated hardship, there is no weight which could be given for this reason alone as to cancellation of the visa or the exercise of discretion not to do so.

    The circumstances giving rise to the cancellation

51. The Department sought information from the applicant to help understand the background to the termination from the employment, notwithstanding the statement made by the employer/sponsor to the Department..

52. The applicant provided no information to assist the Department or subsequently the Tribunal to better understand the circumstances. Without more information and detail concerning the facts and circumstances and what steps were taken, the applicant gave the Department no information to support the exercise of discretion in his favour, when considering the circumstances prior to cancellation.

53. The Tribunal finds it is satisfied that there are no reasons arising from the termination of the employment provided by the applicant that would provide a reasonable basis for exercising the discretion not to cancel the visa.

    Past and present behaviour towards the Department

54. There is no information before the Tribunal to show that the applicant has not cooperated with the Department.

55. There is however the lapse of time which has occurred since the termination of the employment and the further failed nomination application in December 2017, and the fact the applicant has taken no steps whatsoever to support this application with any information the Tribunal might consider on review. The Tribunal finds it strange that the applicant has taken no steps to support his application with further information which might help the Tribunal to exercise the discretion, and the failure to do so must count against him in some small measure.

56. The Tribunal finds however that there being no significant issue about the applicant’s behaviour, this consideration alone does not outweigh the seriousness of the breach by the applicant and does not assist the Tribunal in terms of exercising any discretion not to cancel the visa.

    Consequential cancellations

57. There is no secondary or other visa holder who is affected by the decision to cancel the visa and the Tribunal does not see this circumstance as carrying any weight in terms of the exercise of discretion.

    Mandatory legal consequences such as detention

58. The Tribunal has already noted that in light of the cancellation, the applicant will have a reasonable opportunity to tidy his affairs and make arrangements to depart, whilst remaining in the community and to seek whatever advice or assistance he may require.

59. As a consequence, this consideration carries little weight for the Tribunal in terms of the exercise of discretion.

    International obligations

60. The Tribunal is not aware of any international treaty or obligation which might be impacted or any Australian obligation which might be affected by the exercise of discretion to cancel the visa.

61. As a result, the Tribunal does not attribute any weight to this factor in the exercise of its discretion.

    Any other relevant matters including ties in Australia

62. The Tribunal is not aware of any other facts, matters, or circumstances which might be relevant to the exercise of its discretion or which might be relied upon by the applicant. None have been presented other than what is referred to above.

63. The Tribunal is not aware that the applicant has any family or other ties in Australia which might be affected by a decision to cancel the applicant’s visa.

64. The applicant has not provided any reasons as to why he would be unable to return to India to re-join his family. The Tribunal is not aware of any adverse fact or circumstance which might otherwise affect the applicant

    Conclusion

65. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled and that this is not an appropriate case for the exercise of discretion in favour of the applicant.

    DECISION

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

    Alan McMurran
    Member