GILL (Migration)

[2018] AATA 4241

GILL (Migration) [2018] AATA 4241 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ramandeep Singh GILL
Mrs Baljit Kaur Kaur

CASE NUMBER:  1711786

HOME AFFAIRS REFERENCE(S):           BCC2017/1328833

MEMBER:John Cipolla

DATE:17 September 2018

PLACE OF DECISION:  Sydney

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 second named applicant.

Statement made on 17 September 2018 at 10:08am

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – failure to hold a valid nomination – compliance action against sponsoring employer – factor beyond applicant’s control – sponsoring employer’s external administration – found new nominating employer – decision under review set aside


LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 May 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(3) of his Subclass 457 visa because the applicant ceased to work in his nominated occupation in his most recently approved nomination. The delegate noted that the standard business sponsor who nominated the applicant in his most recently approved nomination for the visa was VIR Pty Ltd and that the sponsor’s principal place of business was 1/57 Main Street Blacktown NSW 2148. The Department had information before them that indicated that another company had taken over the lease for this business on 19 December 2016 and that this new company took over the operating lease for the business on 31 August 2016 indicating that the applicant ceased employment with the sponsoring business effective 31 August 2016. The delegate based on this concluded that the applicant ceased employment with the sponsoring business and that the period during which the holder ceased employment exceeded 90 consecutive days.

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. Recourse to the Departmental file indicates as follows. 

5. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 19 May 2017.  The NOICC particularised the ground for cancellation and why the Departmental delegate believed that the ground existed, namely the cessation of the applicant’s employment with his nominating business on 31 August 2016 and his failure to hold a valid nomination for more than 90 consecutive days since that time.

6. The applicant responded to the NOICC on 26 May 2017 disputing that he had ceased employment for his sponsoring employer and claiming that he was in employment with the sponsoring employer until 20 April 2017. The applicant also provided a number of supplementary documents to the Department pertaining to his immigration history in Australia to date.

7. The Departmental delegate considered the applicant’s response to the NOICC and proceeded to cancel the applicant’s Subclass 457 visa in a decision made on 30 May 2017. The delegate noted that the applicant was not the subject of an approved nomination since ceasing employment with his sponsor on 31 August 2016.  The delegate considered the relevant considerations in order to determine whether or not the visa should be cancelled and proceeded to cancel the applicant’s visa having regard to those considerations.

8. The applicant lodged an application for review with the Tribunal on 2 June 2017.

9. On 25 June 2018 the Tribunal wrote to the applicant inviting the applicant to comment on or respond to information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. The letter noted that the applicant had been granted a Subclass 457 visa on 18 January 2016, valid to 18 January 2020, however his visa was cancelled on 30 May 2017. The Tribunal noted that the applicant was sponsored for this visa by Vir Pty Ltd.  The letter noted that the applicant’s Subclass 457 visa was subject to condition 8107 work restriction, which required that the applicant must not cease to be employed by his approved sponsor and that if he ceased employment the period must not exceed 90 consecutive days.

10. The letter noted that the applicant ceased being employed by his sponsoring business on 31 August 2016 and that on 30 May 2017, the date on which the applicant’s visa was cancelled, he had not worked for his sponsor for more than 90 consecutive days. The letter noted that a recent check indicated that no new relevant business nomination had been approved in respect of the applicant since his visa was cancelled. The Tribunal invited the applicant to provide any evidence as to whether or not he agreed that the grounds for cancellation existed and any evidence as to why his visa should not be cancelled.

11. The Tribunal received a response to the 359A letter on 23 July 2018. The response included a comprehensive submission from the applicant’s migration agent along with a comprehensive statement from the applicant and a number of additional documents. These submissions and the associated documents have been duly considered by the Tribunal.

12. The applicant’s representative noted the following. The applicant’s representative made reference to a number of recent decisions of the Tribunal where the cancellation had been set aside in similar circumstances to that of the applicant. The submission notes that the applicant in no way attempted to misuse the work visa program or intentionally breach visa conditions and that the circumstances he found himself in with his employer were beyond his control. The submission makes reference to the fact that the applicant had always complied with visa conditions and up until the point of cancellation had an exemplary immigration history in Australia. The submission notes that the applicant technically breached his visa condition, namely condition 8107, however the submission notes that the breach was as a direct result of the applicant’s employer not complying with employment laws in Australia and not acting towards the applicant in good faith.

13. The applicant’s submission notes that the circumstances in relation to the breach of condition 8107 were beyond his control. The applicant provided evidence pertaining to the purpose of his travel to and his stay in Australia. The applicant notes that he had always complied with visa conditions since arriving in Australia as the holder of a student visa in 2007. The applicant claims that he was the subject of unscrupulous practices by his employer who did not comply with his obligations towards the applicant as sponsoring employer. The applicant also made reference to having a compliant history with the Department since arriving in Australia in 2007.

14. The Tribunal conducted a hearing on 4 September 2018 and the applicant attended with his representative. The applicant’s wife also attended and gave evidence to the Tribunal.

15. At the outset of the review hearing the Tribunal went into extensive detail about the process of merits review and the respective issues in the review. The Tribunal noted that it appeared that the sponsoring business was taken over by another company not related to the sponsor and that this new company took over the lease of the sponsoring company’s business at 1/57 Main Street Blacktown from the sponsor on 31 August 2016. The Tribunal noted that this indicated that a new entity had taken over from the sponsoring business and commenced operating the business out of the sponsor’s business premises in Blacktown. The Tribunal noted that this suggested that the applicant ceased work for his sponsoring employer on 31 August 2017 and that at the time of the cancellation of his visa on 30 May 2017 the period during which the applicant had ceased employment with his sponsor had exceeded 90 consecutive days.

16. At the outset of the hearing the applicant gave his name and date of birth. The applicant advised the Tribunal that he completed high school in India and that he also completed a year of work experience in marketing.

17. The Tribunal asked the applicant what year he came to Australia and he advised in November 2007 as the holder of a Subclass 573 visa. The Tribunal asked the applicant about his academic history and the applicant advised that he initially completed an Advanced Diploma of Marketing followed by a Graphic Design Certificate and then a Diploma of Management followed by an Advance Diploma of Management. The applicant stated that he made satisfactory academic progress in all of his courses of study and completed them and attained the relevant diplomas and certificates.

18. The Tribunal asked the applicant what he did for work as a student and the applicant advised that between 2008 and 2012 he worked for a cleaning company and that he also had some work in a 7/11 as a Customer Service Manager.

19. The Tribunal asked the applicant about his subclass 457 visa history. The applicant stated that his first Subclass 457 visa was granted to him on 12 March 2014 and was valid for one year. The second visa was granted to him on 18 January 2016 was valid until the 18 January 2020.

20. The Tribunal asked the applicant what his understanding of a Subclass 457 visa was and the applicant advised that it enabled him to work full-time for 38 hours per week and that it was a temporary visa.  The Tribunal asked the applicant what conditions were attached to his subclass 457 visas and the applicant stated that he was aware of the requirement that if he ceased employment he had 90 days to find a new sponsoring business.

21. The Tribunal asked the applicant how he fulfilled his obligations to work 38 hours per week. The applicant stated that he was reliant on the business owner setting up a new business which he had promised to do. The Tribunal stated that based on the facts before it, it appeared that the applicant ceased work for the nominating business on 31 August 2016. The applicant advised that unbeknown to him the Department had commenced compliance action against the nominating business in December 2016 and on 19 December 2016 the Department sent the nominating business a notice of intention to cancel the standard business sponsorship.

22. The Tribunal asked the applicant about his marital status and he advised that he was married on 29 November 2012. The Tribunal asked the applicant about his spouse’s migration history. The applicant advised that his spouse came to Australia as the holder of a student dependent visa, as a member of the family unit of her ex-husband. The Tribunal asked the applicant about his spouse’s work history. He advised that she had worked initially as a Kitchen Hand for Maurice Café in Bellavista and had worked her way up to the position of Chef. The applicant advised that his spouse was an indispensable part of that business.

23. The Tribunal asked the applicant about his current employment and work prospects. The applicant advised that he had been nominated by a restaurant at Tuggerah on the Central Coast. The applicant advised that after he ceased employment with his nominating employer he attempted to obtain a further sponsoring employer, including a nomination application by  a business called Dumpling House, however, their nomination application was rejected in June 2018.

24. The Tribunal took evidence from the applicant’s wife. The witness confirmed that she was currently working as a chef on a full-time basis for Maurice Restaurant in Bellavista. She advised that her husband was currently working for a restaurant business at Tuggerah on the Central Coast.  The witness advised that she had been in Australia for 7 years since 2011 and had worked for her current employer since that time. The Tribunal asked the witness if she and her husband were required to return to India what impact it would have on them.

25. The witness stated that she was a valued employee and that she had substantial responsibility in her role of Chef and if she had to return to India it would have an impact on the business. She advised that her husband had alwayscomplied with visa conditions and that his nominating employer had breached their obligations as the sponsoring business. The witness stated that she was currently 38 years old and the cancellation of her husband’s visa had impacted upon family planning and caused health issues for both her and her husband.

    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 attached to the applicant’s visa. The relevant paragraph of this condition is 8107(3)(b) which requires that if the applicant ceases employment with the sponsor, the period during which the holder ceases employment must not exceed 90 consecutive days.

27. As indicated above, the evidence before the Department indicated that the applicant’s employment ceased effective 31 August 2016.

28. At the time of the delegate’s decision, the applicant had ceased employment with the sponsor that last nominated for a period which exceeded 90 consecutive days. On this basis, the Tribunal finds that the applicant breached condition 8107(3)(b) of his 457 visa.

29. 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

30. 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’.

31. The Tribunal has first considered the purpose of the applicant’s stay in Australia and whether there is a compelling need for him to remain in Australia. The purpose for which the 457 visa was granted is for the applicant to work in the approved nominated occupation of Restaurant Manager for his former sponsor. The Tribunal considers that the purpose for which the visa was granted ceased when the applicant ceased employment with his former sponsor.  The evidence before the Tribunal indicates that the cessation of the applicant’s employment was due to factors beyond his control and that the applicant made every attempt to regularise his immigration status through finding new employment. The evidence before the Tribunal indicates that the applicant’s nominating employer failed to comply with their obligations as a sponsoring employer. Indeed the evidence before the Tribunal indicates that the Department’s monitoring unit issued a notice of intention to cancel the approval of business sponsorship under s 140M(1)(a) of the Act and indeed the sponsorship was cancelled by the Department in a decision made on 7 April 2017. The evidence before the Tribunal indicates that the sponsoring employer has now gone into external administration. The evidence indicates that the applicant sought a new nominating employer and one such application by a business called Dumpling House failed.  The evidence indicates that the applicant has now found a new employer and is pursuing a new nomination application.

32. The evidence before the Tribunal indicates that the applicant travelled to Australia as a 23-year-old to study. The evidence indicates that the applicant made satisfactory academic progress over the course of his student life in Australia. The evidence before the Tribunal indicates that the applicant complied with the requirements of the student visas that he held. The evidence before the Tribunal indicates that the applicant married his spouse in November 2012 and that she has been working for an Australian business for an extended period of time and is considered to be a valuable asset to that business.

33. The Tribunal notes that the applicant is pursuing a further nomination which if approved will enable his skills to be utilised by an Australian business.

34. The Tribunal also notes that if the applicant’s visa is cancelled he will be affected by s.48 of the Act and will need to depart Australia to lodge an offshore 482 visa application. The Tribunal considers that the delay in the applicant having to travel offshore to apply for a visa is likely to cause financial hardship to him and his wife.  These considerations weigh in favour of not cancelling the visa.

    CONCLUSION

35. In considering the circumstances as a whole, the Tribunal is satisfied that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled.

    DECISION

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

37. The Tribunal has no jurisdiction with respect to the second named applicant.

    John Cipolla
    Senior Member