Gandla (Migration)

[2019] AATA 4125

Gandla (Migration) [2019] AATA 4125 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ashwani Kumar Gandla
Ms Lavanya Gandla

CASE NUMBER:  1715270

HOME AFFAIRS REFERENCE(S):           BCC2017/1824260

MEMBER:Danielle Galvin

DATE:9 September 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 second named applicant.

Statement made on 09 September 2019 at 9:52am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – employment ceased for over 90 says – resigned from employment – failed to resume employment – claimed hardship – insufficient evidence provided – no jurisdiction in respect to second applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 348

CASES

Rani & Ors v MIMA (1997) 80 FCR 379

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 July 2017 made by a delegate of the Minister for Immigration and Border Protection 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). A copy of the decision of the Department was attached to the merits review application.

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the first named applicant had not complied with a condition of his visa, namely condition 8107(3)(b) which prohibited him from ceasing employment with the sponsor for a period exceeding 90 consecutive days. In this case the standard business sponsor, who nominated the primary applicant for the visa, was Om Care Pty Ltd (the sponsor). The sponsor wrote to the Department on 3 February 2017 and advised that the primary applicant had ceased work with them from 29 January 2017. The Department therefore cancelled the visa together with the associated visa of the visa holder’s family member.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

5. On 17 October 2018 the Tribunal wrote to the applicants inviting them to comment on or respond to the decision of the Department. The applicants were required to respond in writing by 31 October 2018.

6. On 29 October 2018 the applicant wrote to the Tribunal and advised that-

   “The previous Was sold and as my wife was searching for something and found in mid November that the business was sale was under contract. And we weren’t in formed about this and waited for the owner. And then one of my friend who does Marketing had found that there is a business which is looking for staff on permanent Basis and they were ready to sponsor me and I went to interview and got selected. And ;later found that the business was sold in September when I went for my Brothers Funeral. Looking in the future I have ceased my work on 29 January thinking that’s my new business Sponsor would be helpful and shifted my self to Taralgon. And applied for a new visa. And after ceasing my work I camee to know that I need to have the previous visa too. I came to know I have 90 days to start my work in place and I have started applying for all the Managers positions All over the area and Found a job in Warragul At Edinburgh motor Inn in the end of may.And that’s the time I got a mail From the departmentstating intention to Cancel my Visa and i Have mentioned the case officer that I have nomination in place and the certain officer was saying I need to have done thislong back but I have explained that I was searching for the job but couldn’t find the work in time. And later My Nomination was approved in September 2017. And at present I am working At Edinburgh Motor Inn Warragul.”

7. The applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments.

8. The applicant stated that he began working as a Hotel Manager with Om Care Aust.Pty Ltd claiming that he was interviewed for the position of Hotel Manager in 2016. He stated that he commenced working January 2016 as a Hotel Manager. He stated that in September 2017 his brother passed away, in India, and he left for about 15 days to return there. During his absence he claimed that the business was sold, having been advised of this whilst attending a party at the business in October 2017. He claimed that he was also a cook and was looking for other work. He wished to find a hotel position. He stated that he had discussions with the employer and advised him that he was looking for and had another option to be a cook. He stated he then went to Tarralgon in early February 2017 for a cook’s job having lodged a 187 visa application on 31 January 2017. He did not seek advice in relation to the effect of making such decisions in relation to his visa status. He resigned from Om Care Aust Pty Ltd on 29 January 2017 and accepted a job at Tarralgon on 30/1/17 lodging his visa on the next day. He stated that he was unaware as to the risk to his 457 visa. In February the new employer stated that he could not employ him due to issues with his visa. The applicant never commenced employment in the position. He stated that on 6 May 2017 he obtained another job at Edin Star Pty Ltd and is currently working there as a Hotel Manager. He claimed that Edin Star’s nomination, in relation to this role, was approved in September 2017. The applicant claimed to have commenced work there in April 2018. He stated that he is currently employed as a hotel manager and is living in Warragul. He stated that he received a bridging visa on 24 December 2017. The applicant stated that if he had to return to India his only concern would be the health of his son who has had health issues since birth. His extended family resides in India.

9. He further stated that he had been unaware of the risk in making the decision to leave the sponsor’s employment and if he had to return to India he would be without the medical support he has needed for his child. The quality of the medical care in Australia would not be available in India. He stated that the reason that he wished to stay in Australia is solely to have access to the medical care needed for his son.

10. The applicant was given until 19 April 2019 to make any further submissions to the Tribunal and provide any further material he wished to submit in relation to the review.

11. Following the hearing the primary applicant provided to the Tribunal the following documents:

    ·Agreement Contract between Edin Star Pty Ltd t/as Edinburgh Motor Inn  dated and signed on 3 April 2018 engaging the primary applicant as a Resident Motel Manager;

    ·Letter dated 18/2/19 from Monash Children’s Hospital to Dr. Sari Haylaar in relation to the primary applicant’s son born 6 October 2018 in relation to his seizures;

    ·Notice of Decision nomination approval notice for subclass 457 visa naming the sponsor as Edin Star Pty Ltd in the occupation of Hotel Manager dated 30 August 2017.

12. The applicants were represented in relation to the review by their registered migration agent.

13. 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

14. 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? Section.116(1)(b) - non-compliance with conditions

15. 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(3)(b), attached to the applicant’s visa, which states that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

16. On 7 March 2016 the applicant was nominated to work in the position of Hotel Manager (ANZSCO Code 141311) for Om Care Pty Ltd (the sponsor). The nomination was approved on 7 July 2016.

17. The occupation is not one that is listed specified in the relevant instrument referred to in paragraph 8107(3)(a) and therefore the applicant can only work lawfully in Australia for the sponsor (or an associated entity of the sponsor).

18. The sponsor notified the department on 3 February 2017 that the applicant had ceased employment with it on 29 January 2017. Neither the sponsor nor the applicant advised the department that the applicant had returned to work for the sponsor or an associated entity of it within the 90 consecutive day period following the ceasing of the employment

19. 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

20. 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’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

21. The purpose for which the applicant was granted a subclass 457 visa was to work in Australia in the skilled occupation of Hotel Manager a position which could not be filled from the Australian workforce for the nominator/sponsor. Given that the applicant resigned from his employment with the sponsor when there was no evidence presented to the Tribunal of a need to, the applicant effectively terminated the purpose for which the visa was granted on 29 April 2017 being 90 consecutive days from the date of the cessation of the employment. Departmental records do not indicate that the applicant had secured a new and approved Temporary Business Entry nomination during that 90 day period.

22. The departmental records do indicate that on 9 July 2017 a new subclass 457 nomination was lodged by, and ultimately approved for, Enid Star Pty Ltd nominating the applicant in the role of Hotel Manager. The basis upon which the applicant travelled and stayed in Australia has therefore been replaced with this new role. The Tribunal places little weight on this information in favour of the applicant.

    The extent of compliance with visa conditions

23. The applicant did not comply with condition 8107(3)(b) of his subclass 457 visa when he resigned from his employment for the sponsor and was without work with that sponsor for a period of 90 consecutive days. The applicant’s visa was subject to this condition and the failure to comply with it was as a result of the applicant’s decision to pursue work as a cook in Tarralgon. There is no evidence before the Tribunal that the sale of the business required the applicant to leave that business .The Tribunal places little weight on the applicant’s evidence as to why he departed the employment of the first sponsor.

24. The applicant claims to have been unaware of the risk to his visa status when he resigned. However, the grant of the visa was conditional and formed part of the visa. The applicant did not secure alternative employment for some time and continued to reside in Australia. His new employer, K PANDIAN & A THANG ARAJ lodged a Regional Sponsored Migration Scheme Nomination on 30 January 2017 and the applicant lodged a RSMS (Subclass RN 187) visa application on 31 January 2017. This nomination was withdrawn on 29 March 2017. The Subclass 187 visa review application is before the Tribunal and was heard at the same time as this application.

25. The applicant, whilst continuing to hold a substantive visa, is required to abide by the conditions of that visa until such time as that visa ceases or a further visa is granted. The failure of the applicant to resume employment with the first sponsor, or an associated entity of it, within the 90 days following the cessation of the employment with the first sponsor is evidence of non-compliance with that visa requirement. Consequently the Tribunal places little weight on this information in favour of the applicant.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship

26. In the event that the applicant’s subclass 457 visa is cancelled he and his family member, (the other applicant) will become unlawful non-citizens and become liable for detention under s.189 of the Act and removal under s.198 of the Act if he they do not voluntarily leave Australia.

    As a consequence, the effect of s.48 of the Act is that the applicant will have limited options in applying for further visas in Australia. The evidence given by the applicant at the hearing is that his reason for remaining in Australia is to secure access to medical treatment for his son. He did not submit any further evidence of hardship in the event of cancellation nor any medical evidence supporting a need for further and on-going medical treatment requirements for his son. The applicant did not provide evidence in support of the contention that medical treatment would not be available to his son in India. The applicant’s other family members reside in India. Consequently the Tribunal therefore places little weight on the applicant’s statement in relation to potential hardship if the visa was cancelled.

    Circumstances in which ground of cancellation arose.

27. The reason given by the applicant at the hearing suggested that the sale of the business was the reason for his resignation. However, the Tribunal does not have evidence before it that the sale of the business would have affected the applicant’s visa or employment arrangements. On the evidence before the Tribunal it would appear that the applicant was looking for alternative employment as a cook in Taralgon. The Tribunal therefore places little weight on the applicant’s evidence in this regard.

    Past and present behaviour of the visa holder towards the department

28. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department other than his failure to comply with the subclass 457 visa condition. This consideration weighs in the applicant’s favour. However, the cumulated evidence before the Tribunal weighs against the Tribunal’ exercising its discretion in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

29. In the event that the applicant’s visa is cancelled the member of his family unit who has obtained a secondary visa as a result will mean that their visa is automatically cancelled. The Tribunal gives little weight to this consideration as the secondary visa applicant was granted their visa on the basis that they were a member of the family unit of the applicant. The Tribunal has no information before it that the secondary visa applicant has applied for their own visa. The Tribunal places little weight on this consideration in favour of the applicant.

    International obligations

30. There is no evidence before the Tribunal that the cancellation would place Australia in breach of its international obligations and therefore the Tribunal places no weight on this consideration in favour of the applicant.

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

    DECISION

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

    Danielle Galvin
    Member