Dhanoa (Migration)

[2018] AATA 2882

Dhanoa (Migration) [2018] AATA 2882 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harminder Singh Dhanoa

Kuldeep Kaur Dhanoa

Pranav Singh Dhanoa

CASE NUMBER:  1701396

HOME AFFAIRS REFERENCE(S):           BCC2016/2817304

MEMBER:John Cipolla

DATE:9 July 2018

PLACE OF DECISION:  Sydney

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

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

Statement made on 09 July 2018 at 2:03pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Breach of employment conditions – Ceased employment for 90 days – Visited family members in India – Mother unwell – Currently holding a Bridging visa – Not subject to a nomination – limited options for applying for a valid visa in Australia – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 4 Criterion 4013, 4014 Schedule 8 Condition 8107

CASES
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 17 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (hereinafter referred to as 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 did not comply with condition 8107 of his Subclass 457 visa because the applicant ceased to work in the occupation of Motor Mechanic in his 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. Recourse to the Departmental file indicates as follows. 

4. The Department sent the applicant a Notice of Intention to Consider Cancelling (NOICC) his Subclass 457 visa on 11 October 2016.  The Notice indicated that:

   “On 27 April 2014, your sponsor, nominated you as a Motor Mechanic for a Subclass 457 Temporary Work (Skilled) visa which was approved on 26 May 2014. Consequently on 3 October 2014, the Department granted you a Subclass 457 temporary work visa and linked your 457 visa to this sponsorship.

   On 19 August 2016, the Department received information that you were working as a contractor for on time deliveries from 11 April 2016 until August 2016. This does not appear consistent with the role description and contract of motor mechanic.

   If this is correct, your visa may be cancelled under paragraph 116(1)(b)”.

5. On 13 October 2016 the applicant emailed the Department in response to the NOICC and advised that he was physically unwell, that he was depressed and that he suffered a stroke the previous week, and that he needed time to collect evidence to respond to the NOICC. At the same time the applicant engaged a Migration Agent who also sought an extension of time to respond to the NOICC.

6. On 25 October 2016 the applicant’s Migration Agent forwarded a response to the Department to the NOICC.  The response noted that the applicant first arrived in Australia in 2008 as the holder of a Student visa and had completed studies in business and automotive mechanical technology at certificate level. The applicant was then granted a Subclass 485 visa upon completion of these studies and subsequently found employment to work as a Motor Mechanic with his sponsor Ballan Automotive.  The submission notes that the applicant worked for his sponsor without incident for 16 months and that he took leave to visit his family in India between February and March 2016. Upon the applicant’s return he was informed by his employer that the workshop had been robbed and vandalised and that the business would be closing for around 3 months so that repairs could be completed.

7. The submission notes that the applicant found himself in a difficult position having returned from leave with no savings and because of the situation pertaining to his employer, he found employment with another business, Ontime Deliveries, as a courier, between April and August 2016 returning to employment with his sponsoring business in August 2016. The submission makes reference to the applicant suffering ill health whilst in India in March 2016 and suffering a minor stroke in Australia in September 2016. The submission goes on to address the relevant considerations as to whether or not the visa should be cancelled requesting the Department to utilise its discretion not to cancel the applicant’s Subclass 457 visa.

8. The Departmental delegate had regard to the submission provided by the applicant’s then representative. The Departmental delegate also spoke to the owner of Ballan Automotive Mr Pravin Bhatnagar, who confirmed that his business had been vandalised and that the shop was closed as a consequence for one week for renovations. Mr Bhatnagar had spoken to the applicant and was at a loss to understand why the applicant had formed the view that the business would be closed down for 3 months and that this may have been attributable to a misunderstanding.

9. The delegate went on to find that the ground for cancellation of the applicant’s visa, namely non-compliance with condition 8107 was established.  The delegate considered the applicant’s response to the NOICC and noted that the applicant was nominated to work in a designated occupation as a Motor Mechanic for his sponsoring business and that between April and August 2016 he worked in contravention of this condition, working as a contractor for a delivery business. The delegate noted that they had spoken with the applicant’s employer who confirmed that although the business had been vandalised it was still operational and that it was reasonable to expect that the applicant would have been able to maintain his employment in compliance with visa conditions during this period. The delegate’s decision record also notes the applicant’s claim that he had investigated alternate employment prospects in the event that his nominating employer was not able to continue to sponsor him. Further to this that the applicant was confident that he would be able to obtain alternative employment as a Motor Mechanic but was committed to working for his sponsoring employer until such time as any new nomination was approved.

10. The delegate having regard to all the evidence was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa and proceeded to cancel the applicant’s Subclass 457 visa.

    REVIEW HEARING

11. The applicant appeared before the Tribunal on 14 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Kulvir Johal, the applicant’s sister in law.

12. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

13. At the outset of the review hearing the Tribunal explained in detail, for the benefit of the applicant, the merits review process and the prospective issues in review. These were whether or not the grounds for cancellation of the applicant’s Subclass 457 visa existed and whether or not the applicant’s visa should be cancelled.

14. The applicant gave his name and date of birth. The Tribunal asked the applicant what year he first came to Australia and he advised in 2008 as the holder of a Student visa. The Tribunal asked the applicant about his education history in India. The applicant advised that he completed high school in 1999 and then undertook 2 years of pre-university studies. The applicant then enrolled in a Bachelor of Information Technology at the Guru Nanak Dev Engineering College, a course of 4 years duration. The applicant advised the Tribunal that he completed three and a half years of the course but did not complete the course. The Tribunal enquired of the applicant as to whether he was excluded from the course, and he advised that he was not and that there were financial factors that contributed to him not completing the course.

15. The Tribunal asked the applicant why he travelled to Australia and he advised that he was interested in mechanics, however his family had wanted him to pursue study at a higher level.  The applicant advised that he enjoyed working on cars.

16. The Tribunal asked the applicant how many times he had been back to India in the 10 years that he had been in Australia. The applicant advised around 4 to 5 times. The applicant provided details of his study history in Australia which he completed in 2012. The applicant then made an application for a Subclass 485 skilled visa, a temporary residence visa which was valid for 18 months and during that time the applicant found a prospective Subclass 457 employer who was willing to sponsor him, the sponsoring business being Ballan Automotive.

17. The Tribunal asked the applicant about his work history in Australia between 2008 and 2012. The applicant advised that he undertook pizza delivery work and he also drove for a delivery company called Allied Couriers. 

18. The Tribunal asked the applicant how he managed to find a sponsoring employer in Ballan Automotive.  The applicant advised that he approached the owner of a Preston automotive workshop (another business run by the nominating business) and commenced working for Ballan Automotive from January 2015. The applicant advised that he was granted his Subclass 457 visa in October 2014 and that he ceased working for the Ballan business in February 2016. The applicant stated that he worked for the business for just over one year. The applicant stated that in February 2016 he travelled to India with his family and returned to Australia in March 2016. Upon his return he noted that the business was ‘broken down’ and he spoke to the owner of the business who advised him that the business had been vandalised and it would take months to reopen.

19. The Tribunal asked the applicant why he did not work for the related Preston business in the interim. The applicant stated that the Preston business was not doing very well at that time. The Tribunal asked the applicant whether he ever worked for Ballan Automotive again after his return from India in February 2016 and he advised that he did not.

20. The Tribunal asked the applicant whether he attended the Department of Immigration after he ceased work in February 2016 to advise them of his predicament and the fact that he was no longer working for his sponsoring employer. The applicant stated that he held a hope that the business would reopen in due course.

21. The Tribunal asked the applicant what he had been doing in Australia since March 2016. The applicant stated that when he returned to Australia from India in February 2016 his wife and son were also with him in Australia. Once again the Tribunal asked the applicant why he failed to go to the Department to advise them of the change of circumstances after the cessation of his employment in February 2016. The applicant stated he did not go to the Department as he trusted his employer. The Tribunal asked the applicant whether alarm bells were raised for him when the owner of the business said that the business was not doing well and the applicant advised that he did not think about this.

22. The Tribunal asked the applicant what steps he had been taking to regularise his immigration status after he ceased working for the sponsoring employer in February 2016. The applicant stated that he tried to find a new sponsoring business and could not find one. The applicant stated that he wanted to give his son, who was born in Australia in February 2013, the best life opportunities. He advised that his son was 3 years old when he ceased working for the sponsoring business.

23. The Tribunal noting that the applicant ceased working for his nominating employer from February 2016 asked the applicant how he had been meeting his cost of living expenses. The applicant stated that relatives in Australia had been providing support to him. The Tribunal asked the applicant whether this was causing his relatives a financial burden and he advised that it was. The Tribunal asked the applicant whether he had been working since March 2016. The applicant stated that he worked in delivery for a period of time as he did not know what to do next.

24. The Tribunal stated that based on the evidence before it that as the applicant had a held student visas in the past, which were subject to conditions that the applicant would have had a clear understanding of visa conditions and of the need to comply with these conditions.  The Tribunal noted that despite this understanding the applicant had failed to comply with the conditions attached to his Subclass 457 visa. The Tribunal noted that part of those conditions included condition 8107, and noted that because 90 days had passed since he ceased working for Ballan Automotive, he had breached that condition.  The applicant stated that this condition had slipped his mind and he did not know why.

25. The Tribunal noted that the applicant currently had an application for an RSMS visa before the Department which had been recently lodged and was yet to be determined. The Tribunal asked the applicant how he had found the nominating business for the purposes of this visa application. The applicant stated that he had a friend living in Innisfail in Far North Queensland and that his friend was aware of the business having a need for a Mechanic.

26. The Tribunal asked the applicant what hardship he would experience if his visa was cancelled and the applicant stated that it would be very difficult to survive in India. He advised that his mother had been ill for a period of time as a consequence of suffering with a brain haemorrhage and that his father had spent a lot of money on his mother’s medical needs.  The Tribunal asked the applicant why it would not be best to return to India given the need of his immediate family due to his mother’s poor health.  The applicant stated that he believed that his family would have a better future in Australia.

27. The Tribunal noted that the applicant had spent 10 years in Australia during which time he had obtained a range of qualifications and also had amassed substantial work experience in this country. The Tribunal suggested that a combination of the applicant’s educational qualifications acquired in Australia and work experience would make him more marketable upon his return to India. The applicant was invited to comment on this. The applicant stated that he wanted to give his son a better future in Australia and that he had made stupid mistakes. The applicant stated that his wife and child were currently residing in India and that he was reliant on relatives in Australia for his ongoing support.

28. The Tribunal took evidence from the applicant’s sister-in-law. The witness advised that she was the applicant’s wife’s sister and that the applicant was unwell in September 2016 and that he was suffering with low iron levels, he underwent a colonoscopy but there were no problems identified. The applicant also underwent a blood transfusion at Sunshine Hospital in Victoria. The witness stated that in February 2017 the applicant’s mother had a brain haemorrhage in India and had to undergo 2 surgeries. She advised the applicant was a good person and that she and her husband had been providing support to the applicant. The witness stated that the applicant sister was providing support to the applicant’s family in India since the applicant’s mother had been unwell. The witness advised that the applicant’s son had integrated well into life in Australia and his return to India had an adverse impact on both the applicant’s wife and the applicant’s son. The hearing concluded.

29. 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

30. The Tribunal has considered the applicant’s evidence that an RSMS nomination by A.M Samperi and S. Samperi T/A as Auto & Spares Logistics was lodged in December 2017, however, there is no evidence before the Tribunal that this RSMS nomination has been approved or that any other nomination in respect of the applicant has been approved.

31. The Tribunal finds on the evidence before it that the period during which the holder ceased the relevant employment has exceeded 90 consecutive days.

32. As more than 90 consecutive days have passed since the applicant ceased employment with the employer who most recently nominated him, the Tribunal finds that the applicant did not comply with condition 8107(3)(b) that was imposed on his 457 visa.  The applicant has confirmed at hearing and through his agents post hearing submission that the grounds for cancellation of his Subclass 457 visa exist.

33. 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

34. 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’.

35. The applicant is an Indian citizen. He arrived in Australia in 2008 as the holder of a Subclass 572 Student visa. He completed a Certificate III in Automotive Studies, a Diploma of Automotive Studies and a Diploma of Business Management. He was granted a Temporary Graduate visa, Subclass 485, which he held for one and half years after which he was granted the 457 visa which is the subject of this review.

36. The Tribunal considers that the purpose of the 457 visa is to work in Australia for an approved business sponsor in an approved nominated occupation of Motor Mechanic. In his response to the NOICC the applicant indicated that he commenced work for his nominating business Ballan Automotive in January 2015 and ceased working for the business in February 2016 because the business was vandalised and the applicant wrongly concluded that the business would be out of operation for 3 months.  The owner of the business in evidence to the Department confirmed that the business had been vandalised but had only closed for 1 week to undertake rectification works before it re-opened.  As a consequence of these events the applicant commenced working for On Time Deliveries as a courier from April 2016 until August 2016.  The applicant never worked again for Ballan Automotive from February 2016.

37. At the review hearing the applicant advised that there was a business in Far North Queensland wishing to sponsor him for a Regional Sponsored Migration Scheme (RSMS) visa.  Also provided was a letter dated 7 June 2018 from A.M Samperi and S. Samperi T/A as Auto & Spares Tully Queensland confirming that the business looked forward to sponsoring the applicant for an RSMS visa and that the relevant Regional Certifying body, The Chamber of Commerce and Industry Queensland, had approved the businesses prospective nomination and the business was “awaiting the nomination approval from the Dept (sic) of Immigration for us to move forward with Harminder”.

38. The Tribunal considers it significant that the applicant is still not the subject of a current approved nomination. The Tribunal acknowledges that there is a prospective RSMS nomination application in respect of the applicant. The Tribunal noted that the applicant ceased to work for his nominating employer in February 2016 and that he has had the time since, in which to effect a nomination by a standard business sponsor.  This has not transpired.  The Tribunal is required to make decisions in an efficient manner and is not minded, for the reasons that follow, to delay making its decision in this case so that the applicant can pursue an RSMS nomination application.

1. The Tribunal considers that the applicant has had fair opportunity to become the subject of an approved nomination by an approved sponsor. The applicant has not worked for an approved sponsor in an approved occupation since February 2016 and despite past efforts he has not been able to secure an approved nomination to date. Furthermore the applicant has the option of going offshore and lodging an application for a Subclass 482 visa. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision on the information before it.

2. The Tribunal also considers that permitting the applicant to remain in Australia on a 457 visa to await the outcome an RSMS application is not consistent with the purpose of the Subclass 457 visa.

3. The Tribunal gives weight to the above considerations in favour of cancelling the visa.

4. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. For the reasons discussed above, the Tribunal has found that the applicant breached condition 8107(3)(b) of his visa as the period during which he ceased employment with Ballan Automotive exceeded 90 days.

5. In relation to the applicant’s past and present conduct towards the Department, there is nothing before the Tribunal to suggest that the applicant has not been cooperative in his dealings with the Department apart from his failure to notify the Department of the cessation of his employment with Ballan Automotive in February 2016. 

6. The Tribunal finds overall that the applicant’s conduct towards the Department and general compliance with visa conditions weigh against cancelling the visa. 

7. The Tribunal has also had regard to the circumstances of the visa cancellation. The ground for cancellation arose when the period during which the applicant ceased employment with the sponsor that most recently nominated him exceeded 90 days. The Tribunal has considered the applicant’s submissions that he was not aware of the visa conditions that applied to his Subclass 457 visa, along with the fact that he suffered in the interim period with health issues.  The evidence before the Tribunal indicates that the applicant held a number of student visas over a number of years all of which contained visa conditions.  The Tribunal does not accept the applicants evidence that he was not aware of the 90 day period.

8. The Tribunal does not consider it the responsibility of the Department or any other authority to notify the applicant about his visa conditions, including the 90 day requirement. As noted by the delegate in the decision record, the notification of the grant of 457 visa letter would have set out the conditions attached to the 457 visa, including condition 8107. Furthermore the Department provides an online facility (Visa Entitlement Verification Online – VEVO) for visa holders to check the status and conditions of their visas. The Tribunal considers it the applicant’s responsibility to be aware of his visa conditions and to comply with them.

9. The applicant’s lack of awareness of his visa conditions weighs in favour of cancelling the visa.

10. The Tribunal accepts that the circumstances in which the ground for cancellation arose was in part, due to what appears to be poor, or indeed miscommunication, between the applicant and his nominating employer.  However the evidence indicates that the applicant ceased working for Ballan Automotive in February 2016 and that between April 2016 and August 2016 he worked for another employer On Time Deliveries as a courier and the Tribunal considers, as discussed above, that the applicant has had sufficient time since then to become the subject of another nomination by an approved business sponsor.

11. The Tribunal gives little weight to the circumstances in which the ground of cancellation arose in favour of not cancelling the visa.

12. The Tribunal has also considered the hardship that may be experienced if his visa is cancelled. At the hearing the applicant stated that he has been in Australia for an extended period and that his son was born in Australia and he hoped that his son could be raised in Australia.  However as discussed with the applicant at hearing his visas to Australia were all temporary visas and there was no guarantee that they would lead to permanent residency.  The Tribunal also discussed with the applicant the fact that he had obtained a range of qualifications and work experience in Australia and this would make him more marketable within the Indian job market.  Further to this that the applicant’s son was a young child who because of his age should have no problem adapting to life in India and was currently living in India with his mother.

13. The Tribunal acknowledges the matters raised by the applicant and accepts that the cancellation of the 457 visa is likely to cause some financial and emotional hardship. The Tribunal accepts that returning to India may cause difficulties for the applicant given the period of time that he has been resident in Australia. The Tribunal notes however that the applicants have as noted, only had residence in Australia, as holders of temporary visas, which are granted for a specified purpose and for a specified period, and do not entitle the applicants to remain in Australia indefinitely.

14. The Tribunal gives some weight to the hardship that may be experienced by the applicant and his family but is not satisfied, for the reasons explained that the hardship outweighs the purpose of the applicant’s stay in Australia as the holder of a Subclass 457 visa.

15. The Tribunal accepts that if the applicants 457 visa is cancelled, his wife and son’s visas will be consequentially cancelled under s.140. However the applicant’s wife and son’s visas were granted on the basis of them being members of the family unit of the applicant and it is the intended consequence of the legislation that members of the same family have the same visa status.

16. The Tribunal gives limited weight to the consequential cancellation of the applicant’s wife and son’s visas.

17. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if he does not continue to hold a visa to remain lawfully in Australia or he refuses to depart. As indicated above, the applicant will not have to immediately depart Australia if the visa is cancelled and can apply for a further Bridging E visa. The Tribunal accepts that if the visa is cancelled the applicant will be affected by s.48 of the Act. He will not be able to apply for another Long Stay Business visa (now the TSS visa) onshore, and will have limited options for applying for a valid visa in Australia, without the intervention of the Minister.

18. The Tribunal gives limited weight to the mandatory legal consequences of cancellation as they are the intended consequences of legislation.

19. The Tribunal has also considered the applicant’s claim that if his visa is cancelled and he returns to India he will not be able to return to Australia for a period of time.

20. The Tribunal acknowledges that most temporary visas, including the Subclass 457 visa, require applicants to meet Public Interest Criterion (PIC) 4013 and 4014. However, the Tribunal is not satisfied on the evidence before it that the applicant will necessarily be affected by the three year exclusion period if his 457 visa is cancelled. The applicant’s 457 visa was cancelled on 17 January 2017. He was granted a Bridging E visa on, 30 January 2017, and another on 11 August 2017. The Tribunal is satisfied on the evidence that the Bridging E visa was granted to the applicant within 28 days after his 457 visa ceased to be in effect.

21. The Tribunal has had regard to PIC 4013 and considers that the applicant will not be subject to an exclusion period because he is not affected by a risk factor in PIC 4013(1A), (2), (2A) or (3). He is not affected by the risk factor under PIC 4013(2)(b) because although his visa is cancelled under s.116 because the applicant did not comply with a condition of his visa, the visa was not of a subclass specified in Part 2 of Schedule 4. The risk factor in PIC 4014(4)(b) will also not apply to the applicant under PIC 4014(5) if a bridging visa held by the applicant, at the time of departure, was granted within 28 days after a substantive visa held by the applicant ceased to be in effect. In this case, the applicant was granted a bridging E visa within 28 days of his Subclass 457 visa being cancelled. Therefore, if at the time the applicant departs Australia he holds the bridging visa that was granted within 28 days after the substantive visa held by him ceased to be in effect, the risk factor in PIC 4014(5) will not apply to him.

22. On the basis of the above, the Tribunal considers that the applicant may not necessarily be affected by the three year exclusion period in PIC 4013 and 4014 if he applies for a temporary visa offshore.  This consideration weighs in favour of cancelling the visa.

23. In relation to consideration regarding international obligations, there is no evidence before the Tribunal, and the applicants have not claimed, that any international obligations would be breached as a result of the cancellation.

24. The Tribunal has weighed up all of the relevant circumstances in this case and considers that the circumstances in favour of cancelling the 457 visa outweigh those in favour of not cancelling the visa.

25. 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 applicant. The other named 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 applicants’ 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.

    CONCLUSION

26. In considering the circumstances as a whole, the Tribunal concludes that the applicant’s 457 visa should be cancelled.

    DECISION

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

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

    John Cipolla
    Senior Member