Farwaha (Migration)

[2019] AATA 5859

Farwaha (Migration) [2019] AATA 5859 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harmandeep Farwaha
Mrs Gurpreet Kaur Gurpreet Kaur
Master Sidak Farwaha

CASE NUMBER:  1901094

HOME AFFAIRS REFERENCE(S):          BCC2018/4190073

MEMBER:Antonio Dronjic

DATE:28 August 2019

PLACE OF DECISION:  Melbourne

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 28 August 2019 at 4:14pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – motor mechanic – ceased employment with sponsor for more than 90 days – resigned due to mistreatment by employer – applicant not paid superannuation contributions – failed to find another approved sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), 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 16 January 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (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 breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 90 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 16 January 2019 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 25 January 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid for the period of four years;

   ·     The standard business sponsor who most recently nominated the applicant to work as a motor mechanic was UT Reservoir Pty Ltd (the sponsor);

   ·     On 28 February 2018 the applicant ceased his employment with the sponsoring business;

   ·     A notice of intention to consider cancellation (NOICC) was issued on 19 December 2018;

   ·     On 21 December 2018, the applicant responded to NOICC; and

   ·     On 16 January 2019, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 16 January 2019 for review of the visa cancellation and with his application submitted a copy of the primary decision record.

6. On 12 June 2019, 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 hearing scheduled for 28 August 2019.

7. The applicant appeared before the Tribunal on 28 August 2019 to give evidence and present arguments. At the commencement of the hearing he submitted the following documents:

   ·A bundle of Statutory Declarations provided by the applicant’s former customers confirming his employment at the sponsoring business and attesting to the quality of his work;

   ·A copy letter from the Australian Taxation Office (ATO) dated 20 June 2018 as evidence that ATO received the applicant’s query concerning non-payment of superannuation by his former employer;

   ·A copy letter from the Australian Securities and Investment Commission (ASIC) dated 2 October 2018, informing the applicant of change of office holder of the sponsoring business;

   ·A copy letter from ATO dated 9 January 2019, stating the amount of superannuation owed to the applicant by his former employer; and

   ·A copy letter from ATO dated 23 January 2019, stating the amount of superannuation owed to the applicant by his former employer.

8. 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 8107, to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

9. The Tribunal explained that the applicant’s wife’s and child’s visas were automatically cancelled by operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of her visa. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

10. The applicant is 37 years of age and a married national of India. His wife and a child, who is two years of age, are currently in Australia. In India, the applicant has completed the Bachelor of Information Technology degree in 2005 and has accumulated almost two years of relevant work experience. The applicant has two sisters living in the USA and England. His parents were granted a green card in the USA and they still own a property in India.

11. The applicant’s spouse has completed a Bachelor of Education degree in India in 2007 and worked as an English language teacher for a short period of time. Her sister is an Australian permanent resident and her brother is currently in Australia as a holder of a Student visa. Her parents reside in India.

12. The applicant first arrived in Australia in October 2007 as a holder of a Student visa. He was enrolled into Masters of Information and Technology course which he never completed. Instead, he has completed a diploma in frontline management which included a Certificate III in Automotive.

13. The applicant met his current wife in Australia and they married in August 2013. She was initially enrolled into Masters of Information and Technology course. She complete one year of her masters’ course and then moved from Brisbane to Melbourne where she enrolled and completed a Certificate III in Bakery course. She is and has been working in Australia as a security officer since January 2016.

14. The applicant was granted a Subclass 457 visa on 25 January 2016, based on the sponsorship and nomination made by UT Reservoir Pty Ltd. The applicant confirmed in his evidence that he received a visa grant letter from the Department and that he read and understood the conditions imposed on his visa.

15. He commenced employment at the sponsoring business in February 2016 and was paid approximately $54,000 per annum. He ceased his employment in February 2018. He stated that he made several requests to his employer for payment of mandatory superannuation contributions. The applicant went on holiday and informed the employer that he will resign from his job if the overdue superannuation contributions were not paid to his account. He gave evidence that he was mistreated by his former employer and regularly deprived of holidays. He stated that he never complained to the work place ombudsman because his employer threatened to close the business if the applicant approaches work place ombudsman.

16. Upon returning from holiday, the applicant’s employer told the applicant that he informed the Department of the applicant’s cessation of employment at the sponsoring business. After having a consultation with his migration agent, and acting on his/her advice, the applicant submitted a letter of resignation to his employer on 21 March 2018.

17. He reiterated that in June 2018 he contacted ATO in order to recover unpaid superannuation contributions from his former employer. He gave evidence that the total amount owed is approximately $15,000 and that ATO accepted his claim. The process is on-going and, according to the applicant’s understanding, the ATO will pay him money owned, and then recover that amount from his former employer.

18. The applicant gave evidence that he did not work at all from February 2018 until February 2019 when he was granted a bridging visa ‘E’ which does not have work restriction. He claims that he attempted to find new employment with an Australian business willing to sponsor and nominate him for a position of a motor mechanic but was not successful. He stated that in February 2019, he commenced working as an Uber driver, which remains his job to the present time.

19. The applicant stated in his evidence that, as of the day of the Tribunal’s hearing, he is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated him for a position within the business.

20. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached condition 8107 that was imposed on his Subclass 457 visa and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances. The applicant conceded in his evidence that he did breach the condition imposed on his visa.

21. The Tribunal indicated that it will take into consideration the evidence given at the hearing as well as documentary evidence provided in support of the application. The Tribunal asked the applicant if there is anything else that he wants to raise with the Tribunal.

22. The applicant stated that he and his family will suffer hardship if they return to India as they will have to start from the beginning. The Tribunal enquired as to why they would suffer hardship in India, considering their family composition, education and work experience obtained both here and in India. The applicant stated that it will be mentally hard to settle in such a different environment after living in Australia since October 2007.

23. The applicant gave evidence that in December 2017 he applied for s skilled visa Subclass 190. This application was refused by the Department as he was unable to provide evidence of superannuation payments related to his employment at UT Reservoir Pty Ltd. He stated that he sought a review of this decision and that the outcome of the review application is pending. He further stated that, if his visa remains cancelled, this would have a negative impact on the skilled visa review application because he would have to leave the country.

24. 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

25. 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?

26. 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 is attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 90 consecutive days.

27. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at UT Reservoir Pty Ltd on 28 February 2018. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

28. 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

29. 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’.

30. 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]

31. 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

32. The Subclass 457 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.

33. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a motor mechanic on a temporary basis. The applicant lost his employment on 28 February 2018. The applicant decided to remain in Australia. He claims that February 2018 to February 2019, he attempted to find a new sponsor. He was not successful. In February 2019 he commenced employment as an Uber driver and continues to work for this business to the present day.

34. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business. Based on the evidence before it, the Tribunal finds that the applicant’s visa, but for the cancellation, would have ceased on 25 January 2020 in any case.

35. 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 457 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 as the applicant ceased working for his sponsor on 28 February 2018.  The Tribunal gives significant weight to this consideration.

    The reason for and extent of the breach

36. The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 28 February 2018. He lost this employment because he was mistreated by his employer and was not paid superannuation contributions.

37. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’.

38. However, the applicant did not work for the business that is an approved sponsor and that successfully nominated the applicant for a position of a motor mechanic from 28 February 2018 to the present time. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 18 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which the ground for cancellation arose

39. The applicant ceased employment at the sponsoring business on 28 February 2018. The Department did not proceed with the visa cancellation until 16 January 2019. 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.

    Past and present conduct of the visa holder towards the Department

40. There is no evidence before the Tribunal that the applicant previously breached visa conditions or that she was not co-operative with the Department.

    Degree of hardship that may be caused to the applicant

41. The applicant claims that the visa cancellation would cause hardship to himself and his family. He stated that he has been living in Australia since 2007 and has established strong ties to the Australian community. The applicant gave evidence that he is trying to provide better future for his son and that that he and his family will suffer hardship if they return to India as they will have to start from the beginning. He explained that it will be mentally hard to settle in such a different environment after living in Australia since October 2007.

42. The Tribunal has taken into consideration the applicant’s evidence that both he and his wife completed a Bachelor Degree in India and acquired some work experience. Considering their family composition, education and work experience obtained both in India and Australia, the Tribunal is satisfied that the applicant would be able to re-establish himself in India.

43. The applicant claims that, if his visa remains cancelled, this would have a negative impact on the skilled visa review application lodged at this Tribunal because he would have to leave the country. The Tribunal does not accept this claim as it remains possible for the applicant to attend the Tribunal’s hearing ether by telephone or video conferencing.

44. The Tribunal accepts that the applicant has been living in Australia since 2007 and has established ties to the Australian community. The Tribunal accepts that the applicant and his family will suffer some hardship if they are required to depart Australia. 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.

1. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

2. In any event, the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

   Whether there are mandatory legal consequences, such as whether cancellation would

   result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the
   Act which prevent the person from making a valid visa application without the Minister’s
   intervention

3. 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 has the opportunity to 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.

4. 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 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

5. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as he breached the 8107 condition imposed on his visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

   Whether there would be consequential cancellations under s.140

6. Whilst the applicant’s wife’s and son’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 her husband and son.

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

7. 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).  

8. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. 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.

   The impact on any victims of family violence

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

   Other matters raised by the applicant

10. The applicant stated and the Tribunal accepts that he is hard working, skilled and trained motor mechanic who made positive contribution to the society. The Tribunal considered statutory declarations provided by the applicant with the review application attesting to his work at the sponsoring business.

11. The Tribunal also acknowledges that there is no evidence before it that the applicant previously breached any of the conditions imposed on previously held visas and that he never harmed any Australian citizen. 

12. 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

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

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

    Antonio Dronjic
    Member