Gadhvi (Migration)

[2020] AATA 2566

Gadhvi (Migration) [2020] AATA 2566 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ajay Kishordan Gadhvi
Mrs Jagrutiben Ajay Gadhvi
Master Yuvrajsinh Ajay Gadhvi
Master Aaryan Ajay Gadhvi

CASE NUMBER:  1928360

HOME AFFAIRS REFERENCE(S):          BCC2018/5039869

MEMBER:Nicola Findson

DATE:27 May 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 27 May 2020 at 11:41am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment with sponsor exceeding 60 days – company liquidated – factors beyond applicant’s control – efforts to find another sponsor – second sponsor withdrew sponsorship – third sponsorship application pending review – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140, 189
Migration Regulations 1994, 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 3 October 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 did not comply with a condition of his Subclass 457 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. 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 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.

4. The applicant appeared before the Tribunal on 26 May 2020, to give evidence and present arguments. 

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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 attached to the applicant’s visa. It relevantly requires the applicant to work only in the occupation listed in the most recently approved nomination and, unless subclause (3A) applies, to only work in a position in the business of the sponsor, or an associated entity of the sponsor. Also, condition 8107(3)(b) requires that if the applicant ceases employment, the period during which he ceases must not exceed 60 consecutive days.

9. The delegate’s decision, a copy of which was provided to the Tribunal by the applicant for the purpose of the review, records that the applicant was sponsored by Narnarayan Sayona Pty Ltd to work in the nominated occupation of Cook.  He was granted a subclass 457 visa on 27 January 2017, valid until 27 January 2021.  The Department was informed that Narnarayan Sayona Pty Ltd was liquidated, and as consequence the applicant ceased employment with the sponsor, effective 22 June 2018.  The Department’s records show that a nomination application was made on 25 October 2018 nominating the applicant to be employed by a new sponsor, Shree Ghanashyam Pty Ltd.  However, that application was withdrawn on 16 September 2019.  Another nomination application in relation to the applicant was made on 30 July 2019, by Sahimeldi Pty Ltd.  However, that application was refused by the Department on 2 September 2019.  The Tribunal notes that this refusal decision is currently before the Tribunal for review.

10. On 9 September 2019, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa, on the basis that he was in breach of condition 8107. On 3 October 2019, the delegate cancelled the applicant’s visa under s.116(1)(b). The delegate found that the applicant had not complied with condition 8107 and was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

11. The Tribunal observes that although the Departmental file does not reflect any response to the NOICC issued by the Department on 9 September 2019, during the review process, the applicant’s representative provided a copy of the response she claims was sent to the Department on 13 September 2019, which was within the prescribed response time.  The applicant, in his response, did not dispute the that the ground for cancellation existed.  He indicated in his response that, among other things, the loss of his employment had caused him much distress and despite securing employment with two further prospective sponsors, both nomination applications lodged by these companies had been unsuccessful. 

12. At the hearing, the applicant confirmed to the Tribunal that he started working for the sponsor in March 2017.  He confirmed that he ceased working in his sponsor’s business in June 2018.  The reasons he ceased working for the sponsor are discussed in more detail below.

13. On the evidence before it, the Tribunal finds the applicant ceased employment with his sponsor in June 2018.  He has not returned to work for the sponsor since that time.  The Tribunal finds the applicant has ceased employment for a period of more than 60 consecutive days.  He is therefore in breach of condition 8107.

14. For these reasons, the Tribunal is satisfied that the ground cancellation in s.116(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

15. 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’.

16. At the hearing, the applicant told the Tribunal that he had come to Australia, with his wife and children, in March 2017 as the holder of the Subclass 457 visa.  He told the Tribunal that he had qualified as a Cook in India and had seven years experience in this field before coming to Australia. 

17. The applicant indicated that the circumstances leading to the breach were due to factors beyond his control.  He said his sponsor did not tell him his business was in financial trouble or going to close.  He said he was told that the lease of the business premises had not been renewed and a new premises needed to be found, which could take several months.  He said that in the meantime, his employer moved him to another business, where he continued to work without regular payment. The applicant told the Tribunal that he became very stressed at the uncertainty of his situation and decided that he needed to look for another sponsor. 

18. The applicant told the Tribunal that he did not inform the Department of his changed employment circumstances.  He said he thought it was enough that the Department was aware he was the subject of a new nomination application lodged by Shree Ghanashyam Pty Ltd in October 2018, and that he had followed up the progress of this application several times with Departmental officers. 

19. The applicant told the Tribunal that the nomination application made by Shree Ghanashyam Pty Ltd was before the Department for a very long time with no resolution, and he became increasingly anxious to be working, so continued to look for another sponsor.   He told the Tribunal he was successful in finding another prospective sponsor, Sahimeldi Pty Ltd, and this company lodged a nomination application in relation to him on 30 July 2019.  The applicant told the Tribunal that he only learned that the nomination application was withdrawn by Shree Ghanashyam Pty Ltd in September 2019, when he read it in the delegate’s decision record.  He also said that although Sahimeldi Pty Ltd’s nomination application was refused by the Department, he is aware the company had sought a review of this decision and was currently awaiting the Tribunal’s decision. 

20. The applicant told the Tribunal that he was currently on a Bridging Visa without work rights, because he has not yet been granted these rights.  He said that since his income had ceased, he had drawn on savings to support his family; his wife had worked as a beauty therapist to earn some extra money; a cousin had provided them with a house, rent-free; and they had borrowed money from family in India. 

21. The applicant has not had any other difficulties in relation to his compliance with visa conditions.  There is no suggestion that there has been any difficulty in relation to his past and present conduct.  He has been cooperative with the Department and the Tribunal.

22. The applicant told the Tribunal he will suffer financial hardship if the visa is cancelled.  He said it was extremely expensive relocating his family from India to Australia to work for his sponsor.  He is now also in indebted to the family members who have helped support him since he stopped working.

23. The applicant told the Tribunal that he and his wife and children were happy to be in Australia and that it would not be easy for them to return to India if the visa is cancelled.  He said he would feel like he has made a mess of their future if he had to leave Australia, in circumstances where he had lost his job and had his visa was cancelled before it ceased, through no fault of his own.

24. The Tribunal explored whether there was any reason why he could not return to India.  The applicant told the Tribunal that he would return to India if he was required to.  However, he hoped to remain in Australia to continue working as a cook.

25. The Tribunal discussed with the applicant the discretionary factors the Tribunal would consider in making its decision and all of the relevant circumstances in his case.  In assessing the evidence, the Tribunal notes that the applicant presented as a reliable witness.  It can be satisfied that it can rely on his oral evidence to make many of its findings.

26. The Tribunal has considered the applicant’s purpose for remaining in Australia.  A Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.  The purpose of the applicant’s stay in Australia, when granted his visa, was to work in the nominated position for Narnarayan Sayona Pty Ltd.  While this purpose no longer exists, the evidence before the Tribunal is that the applicant started looking for another sponsor in Australia because he wishes to remain in Australia to undertake skilled employment. The evidence also indicates that the applicant was successful in finding two businesses willing to sponsor him in the same occupation. The Tribunal notes that while it appears Shree Ghanashyam Pty Ltd withdrew its nomination application because it could not wait any longer for it to be determined by the Department, the application made by Sahimeldi Pty Ltd is currently still on foot, awaiting review by the Tribunal.  The Tribunal considers that this evidence indicates the applicant’s skills and experience are valued by prospective employers and that he will be competitive in finding skilled work in Australia. On the basis of the evidence before it, the Tribunal is of the view that the applicant’s purpose of travel to and stay in Australia is within the spirit of the Subclass 457 scheme and remains a valid one.  The Tribunal gives this factor some weight against the cancellation of the visa.

27. Regarding his compliance with visa conditions, it appears to the Tribunal that condition 8107 is the only visa condition for which the applicant has not complied.  The Tribunal notes that the business of the applicant’s sponsor was liquidated and his job was no longer available.  The applicant’s evidence, which is accepted, was that he started looking for employment in the same occupation as soon as he became aware his employment with his sponsor was in jeopardy.  On the basis of the evidence before it, the Tribunal is satisfied that the applicant did everything he could to secure sponsorship in skilled employment as soon as his sponsored employment with Narnarayan Sayona Pty Ltd came to an end.  While it accepts that he ceased employment with his former sponsor for a period exceeding 60 days, it is satisfied he took every action he could to avoid breaching condition 8107.  The Tribunal therefore gives this factor only little weight in favour of the cancellation of the visa.

28. The Tribunal accepts that the applicant will suffer some hardship if his visa remains cancelled and he is required to return to India.  The Tribunal accepts that the applicant incurred significant expense in relocating both himself and his family to Australia to commence working for his sponsor, and that he has incurred some debt since ceasing work with Narnarayan Sayona Pty Ltd.  Therefore, an outcome that requires the applicant and his family to depart Australia will be a source of great disappointment, with both financial and emotional consequences. In this case, the Tribunal attributes some weight to this factor, which would weigh against the cancellation of the visa.

29. According to the delegate’s decision record, there is no information before the delegate to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department.   The Tribunal gives this factor little weight against the cancellation of the visa.

30. The applicant has acknowledged that he was in breach of condition 8107.  However, the Tribunal is of the view that the circumstances in which this occurred were outside his control.  It is also satisfied that the applicant took every action to try and avoid the ground for cancellation arising.  He was mindful that he needed to be in sponsored skilled employment and endeavoured to secure another position that was intended to lead to such.  In the circumstances of this case, the Tribunal gives this factor weight against the cancellation of the visa.

31. The delegate’s decision records that the applicant’s wife and two children will be subject to cancellation pursuant to s.140 of the Act if the applicant’s visa is cancelled.  The Tribunal notes that the visas of the applicant’s wife and children were granted on the basis of them being members of his family unit and it is the intended consequence of the legislation that members of the same family have the same visa status. For these reasons, the Tribunal gives this consideration limited weight against the cancellation of the visa.

32. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, if the visa is cancelled, the applicant will be prevented from applying for a skilled visa onshore.  The Tribunal acknowledges that current global circumstances, that being the pandemic of Covid-19, may impact on the applicant’s ability to depart Australia if his visa is cancelled.  However, it does note that the applicant is able to apply for a bridging visa to enable him to remain in Australia until he is able to return to his home country.  The Tribunal gives these consequences some limited weight against the cancellation of the visa.

33. The Tribunal recognises that the cancellation of a visa is a significant matter and has weighed the evidence before it, including evidence that was not available to the delegate at that time of decision. The Tribunal is of the view that the reasons in favour of not cancelling the applicant’s visa outweigh those reasons for cancelling his visa. It considers that the discretionary factors above indicate that the applicant, in the circumstances of this case, should be given an opportunity to remain in Australia to engage in skilled employment, supported by a new employer (possibly Sahimeldi Pty Ltd, depending on the outcome of its review application). 

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Nicola Findson
    Member