Guggal (Migration)
[2023] AATA 3009
•13 September 2023
Guggal (Migration) [2023] AATA 3009 (13 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Kamaljeet Guggal
CASE NUMBER: 2310394
HOME AFFAIRS REFERENCE(S): BCC2019/44271
MEMBER:Alison Mercer
DATE:13 September 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 13 September 2023 at 4:48pm
CATCHWORDS
MIGRATION – cancellation – Federal Court remittal – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 90 days – salary payments delayed – unfair dismissal dispute with employer pending – threats of deportation – brief return to same employment – plans for further studies – visa cancelled less than 90 consecutive days since actual employment ceased – cancellation power does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198, 359, 360
Migration Regulations 1994, Schedule 2 cls 457.223, 457.611; Schedule 4, PIC 4013; Schedule 8, Condition 8107CASES
Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 641
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 6 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant had breached condition 8107 of his subclass 457 visa. The delegate found that the applicant had ceased his employment with his sponsoring employer in September 2018 and had not been nominated by a new employer within 90 days. The delegate found that a ground for cancellation therefore existed, and found that the reasons in favour of cancelling the applicant’s subclass 457 visa outweighed those against cancellation.
The Tribunal received a review application from the applicant on 15 March 2019. It was accompanied by a copy of the delegate’s decision.
The Tribunal (differently constituted) held a hearing for this matter on 6 May 2019. On 23 May 2019, the Tribunal made a decision to affirm the Department’s decision to cancel the applicant’s subclass 457 visa.
The applicant sought judicial review of the Tribunal’s decision on 9 July 2023. On 10 March 2022, the Federal Circuit Court of Australia (FCCA) dismissed the applicant’s judicial review application. On 27 May 2022, the applicant sought judicial review of the FCCA decision.
On 14 June 2022, the Federal Court of Australia as per O’Callaghan J set aside the FCCA decision and remitted the matter back to the Tribunal with a direction that it reconsider the matter according to law. The basis for this direction was that O’Callaghan J found that the original Tribunal decision was affected by jurisdictional error. Specifically, O’Callaghan J found that the Tribunal had incorrectly found that the applicant ceased employment with his original nominating employer in September 2018, and that this error was material, as it affected the Tribunal’s finding that a ground for cancellation for breach of condition 8107 was made out: see Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 641.
The matter was constituted to a new Tribunal Member on 16 August 2023.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
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?
s 116(1)(b) - non-compliance with conditions
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. This condition required (at the time it was imposed on the applicant’s subclass 457 visa):
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(1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:
(a) cease to be employed by the employer in relation to which the visa was granted; or
(b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.
(2) If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:
(a) cease to undertake the activity in relation to which the visa was granted; or
(b) engage in an activity inconsistent with the activity in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.
(3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):
(a) the holder:
(i) must work only in the occupation listed in the most recently approved nomination for the holder; and
(ii) unless the circumstances in subclause (3A) apply:
(A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
(B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
(C) if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor; and
(aa) the holder must commence that work within 90 days after the holder’s arrival in Australia; and
(b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and
(c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:
(i) hold the licence, registration or membership; and
(ii) comply with each condition or requirement to which the licence, registration or membership is subject.(3A) For subparagraph (3)(a)(ii), the circumstances are that:
(a) if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or
(aa) if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or
(b) the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.
(3B) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):
(a) the holder must work only in the occupation or position in relation to which the visa was granted; and
(b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.
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The Tribunal considers it relevant to consider the applicant’s visa history in some detail.
Department file
The Department’s records indicate that the applicant was granted a subclass 457 visa on 7 March 2015, which was valid for 4 years and subject to (amongst other things) condition 8107. He was granted the visa on the basis that he was nominated as a Motor Mechanic by his Australian employer, Tyre Barn (Australia) Pty Ltd, an approved standard business sponsor.
The Department’s records further indicate that the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant on 18 February 2019. The Department gave the following reasons for considering cancellation:
…
It has come to my attention, as a delegate of the Minister, that there appear to be grounds for cancellation of your Temporary Work (Skilled) (subclass 457) visa granted on 7 March 2015 under section 116 of the Migration Act 1958:
Section 116. Power to cancel 116.
Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (b) its holder has not complied with a condition of the visa; or […]
The Migration Act 1958 gives you the opportunity to comment on this ground/these grounds for cancellation and to give reasons why your visa should not be cancelled.
Particulars of the ground(s) for cancellation and information indicating the ground(s) for cancellation appear to exist:
On 17 February 2015, you lodged an application for Temporary Work (Skilled) (subclass 457) visa as a sponsored employee of Tyre Barn (Aust) Pty Ltd in Dandenong, Victoria. Your sponsored employment was based on your skills and qualifications in your nominated occupation as a Motor Mechanic.
In accordance with Regulation 457.611(2) under Schedule 2 of the Migration Regulations 1994 (the Migration Regulations), for all applicants who have satisfied the primary criteria for a grant of the Temporary Work visa, condition 8107 must be imposed.
457.6—Conditions
457.611
(1) For an applicant other than an applicant who seeks to satisfy the secondary criteria on the basis of being a member of the family unit of the primary applicant who has met the requirements of:
(a) subclause 457.223(8), as in force immediately before 23 March 2013; or
(b) subclause 457.223(9), as in force immediately before 24 November 2012; condition 8501.
(2) If the applicant satisfies the primary criteria, condition 8107 must be imposed.
Visa condition 8107 is specified within Schedule 8 of the Migration Regulations and provides:
8107
(3B) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):
(a) the holder must work only in the occupation or position in relation to which the visa was granted; and
(b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.
On 7 March 2015, you were granted your Temporary Work visa on the basis you satisfied the relevant criteria. A visa grant notification letter was issued to you, which stated that condition 8107 had been imposed upon your visa.
On 14 February 2019, the Department contacted the owner of Tyre Barn (Aust) Pty Ltd, who confirmed your employment had ceased with the business in September 2018.
There is no record of you contacting the Department to report or confirm this change in your circumstances, nor is there any record of a new business sponsorship application on your behalf.
As your employment was considered to have ceased at this time and more than 90 days passed and you did not depart Australia or apply for another type of substantive visa and the Department did not receive a new business sponsorship application on your behalf, it appears you have breached condition 8107.
If this information is correct, your Temporary Work (Skilled) (subclass 457) visa may be cancelled under section 116(1)(b) of the Migration Act 1958.
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The applicant was given 5 working days to provide a response, including reasons why his visa should not be cancelled. This period was extended at his request.
On 5 March 2019, the applicant provided the following email response:
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This is my response to the Notice of Intention to Cancel my visa dated 25 Feb 2019.
I started working for Tyrebarn Dandenong from Feb 2011 to Nov 2014 as a mechanic, according to my visa condition which was 20 hours a week it was a great experience to work in Australia and in actual because of my hardworking nature, therefore, I was granted sponsorship to work with Tyre barn in the future as well.
While coming back to Australia in 2015, I was so determined to start work for the company on the next day which was I think 8th Aug, I was offered to live inside the factory by the employer for free of cost, while, I did have my friends rented a home as well at Carnegie & base water too. so life started flowing in full swing however as time progressed what I found salary was not coming to my account regularly into my account and this was a big concern for me over the years since I came back from India.
Luckily I was surrounded by nice friends who offered me a rent-free house and one day he starts asking about whether I am getting my salary in my account or not? He explained the reason that one of his friend Pr visa refused due not to get the payment into his Account by his employer. On the next day when I asked my employer about the salary he replyed will pay later... He told me that his Migration Agent from Sydney Champa Buddhipala C & CT Migration consultant is a very good lawyer and he will look after me as he is dealing with his Brother Dinesh... My employer asked me to follow Mr Champa advice. My Champa rang me and explained that I am eligible for Pr and act now before new rules affect my eligibility to become Permanent resident, he sent me an email where he explains how much it will cost, I discussed all this with my employer, and asked I will not be paying a single cent and got the same answer you pay I will pay you later by him, I made him clear that I am running out of money and not gonna pay anything, he agreed and said politely son believe me I will pay for everything because he is very happy with the way I was looking after his business... I found myself as I am dealing with my father and I did deposit $1,500 in the c&ct migration Account. I will be attached a scanned copy as well... he never returned my money back... Please don't ever think that I was willing to pay that amount to this migration lawyer, it was just an understanding in between me and my employer or blindly kind of trust that's all...
Account Name: C&CT Migration Consultants – Client Account
BSB Number: [redacted]
Client Account Number: [redacted]
Bank: Commonwealth Bank]
I was a bit worried and asked his brother Dinesh who was on 457 visa on the time, he replied that ''don't worry he will pay you for sure''
By the time I trusted on them, and happily left the country on 6th Feb to get married and came back on 4 Apr from India. I wanted to bring my wife as soon as possible to Australia and to fulfil the requirements I was having difficulties to collect documents from my employer because every single time I asked for that he said to me ''cant you wait little longer'' and ''once you get permanent she will be here soon ''
The relationship started becoming saur and saur when his promises look like fake day by day and once his brother got permanent residence he was completely a different person, an arrogant and selfish kind of personality...
To obtain the key of Hampton park third shop his brother started making strategies to sack another employee who had been working for this company over almost 12 years [Amandeep Singh Grewal] ... and he became successful one day.
He came as a customer service manager and become full-time Tradesmen without having any proper qualifications.
Mr Dinesh behaviour changed as he became kind of boss of all three shops and started finding deficiencies in our work... ''Typically Asian style called me useless one day'' a person whom I taught how to work in a shop today he began commenting on our work... It was a new face which I was unaware of. They started taking money as cash from the customers rather pay by card, in other words, now Mr DInesh have got His Permanent residency, there was no need to show business running in to the profit, Initially I was not aware of their tactics but later when I came to know the reality it was too late. they were finding a way to kick me out from the company as they kicked out another employ and without any solid reason they got no chance... Please check all his immigration documents properly even training benchmarks or superannuation too... because he was the one who kept me dark for a long period of time that everything will be all right...
Eventually, this was my turn to be get sacked by My employer, There was a day when he screamed on me to get F..k.d and do whatever you want... you are just a temporary resident who is nothing at the front of a citizen...He kicked me out and called me back a short time back on the job for a couple of days when his co-worker Named [Hardeep Singh Gill] went overseas, I returned to work in that thought that he might help me again however upon asking for unpaid money, he refused to pay anything said this time I have made proper arrangements to deport you to your bloody country. After deceived twice I have been living in some kind of depression which leads to me broken emotionally and financially because what promises he made to me all were gone. He is a very sweet talker and has great command on English which makes other people believe what he wants as such... Please ask him about my superannuation and training benchmarks and salary records or pay slips etc, you will come to know the truth.
Now I am about to go to court for underpayment and unfairly dismissal and my case is being looked after by Mr Adrian Snodgrass who is a Well educated and experienced Employment Lawyer and Night service Manager at Fitzroy legal Services
Phone [redacted]
The other charges that I am facing will be looking after by a well known Lawer and I think I have a right to remain innocent till proven guilty...
To conclude this all that I am a hardworking person who is looking after my parents and my newly married wife, I am already 37 which is the age to settle down and set your goals to achieve as quickly as you can... I am engaged with my employer in a legal battle in court and according to my Lawyer it may take 8 to10 months to get results, I want to win this battle and want to send a message for all selfish employers who play with their employees future...
I am old enough in this country to understand country culture or values. Australia is like a second home to me who has given me so many opportunities to fulfil my dreams, I want to live in this country for forever, Now your one move can make my life good or other send in darkness for forever please consider all this before making a decision.
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The Department officer considering the case made a decision on 6 March 2019 to cancel the applicant’s visa, citing the following reasons:
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Evidence of non-compliance:
On 17 February 2015, Mr Kamaljeet Singh GUGGAL (the visa holder) lodged an application for Temporary Work (Skilled) (subclass 457) visa as a sponsored employee of Tyre Barn (Aust) Pty Ltd in Dandenong, Victoria. The visa holder’s sponsored employment was based on his skills and qualifications in his nominated occupation as a Motor Mechanic.
In accordance with Regulation 457.611(2) under Schedule 2 of the Migration Regulations 1994 (the Migration Regulations), for all applicants who have satisfied the primary criteria for a grant of the Temporary Work visa, condition 8107 must be imposed.
457.6—Conditions
457.611 (1) For an applicant other than an applicant who seeks to satisfy the secondary criteria on the basis of being a member of the family unit of the primary applicant who has met the requirements of:
(a) subclause 457.223(8), as in force immediately before 23 March 2013; or
(b) subclause 457.223(9), as in force immediately before 24 November 2012; condition 8501.
(2) If the applicant satisfies the primary criteria, condition 8107 must be imposed.
Visa condition 8107 is specified under Schedule 8 of the Migration Regulations and provides:
8107
(3B) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):
the holder must work only in the occupation or position in relation to which the visa was granted; and (b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.
On 7 March 2015, the visa holder was granted his Temporary Work visa on the basis he satisfied the relevant criteria for a grant. A visa grant notification letter was issued to the visa holder, which stated that condition 8107 had been imposed upon his visa.
Since the grant of his Temporary Work visa the Department received information that the visa holder is no longer employed by Tyre Barn (Aust) Pty Ltd (Tyre Barn). It was reported by Victoria Police that they contacted the manager of the business, who informed them that the visa holder’s employment with them ceased in September 2018.
On 14 February 2019, the Department contacted the owner of Tyre Barn, Mr Palitha Dissanayake who confirmed the visa holder’s employment had ceased with the business in September 2018.
As the visa holder’s employment was considered to have ceased at this time and more than 90 days passed and he did not depart Australia or apply for another type of substantive visa and the Department did not receive a new business sponsorship application on his behalf, it appears the visa holder has breached condition 8107.
PART C: GROUNDS FOR CANCELLATION
Does the visa holder agree that there are grounds for cancellation? No
If no, reasons why the visa holder considers the grounds do not exist:
· In the visa holder’s response, he claims he is not responsible for the non-compliance set out in the Notice because he was unfairly dismissed by his employer without reason on an unspecified date. The visa holder claims he has lodged an unfair dismissal case and has engaged the legal representations of an employment lawyer.
· The visa holder claims that in 2017 he appointed a migration lawyer, through the recommendation of his employer, so that he could lodge an application for permanent residency. He claimed that he paid the migration lawyer $1500 of his own money based on advice he had received that he was eligible to apply for permanent residency in Australia.
· The visa holder claims his employer had given him false hopes that he would be able to obtain permanent residency in Australia.
Assessment:
I am satisfied that there are grounds for cancellation under paragraph 116(1)(b) of the Migration Act 1958, on the basis of there being a breach of visa condition 8107.
Reasons:
· The visa holder’s employment with Tyre Barn ceased on September 2018. This is based on information provided to the Department by Victoria Police, which was verified through contacting the employer on 14 February 2019. The visa holder also confirmed this in his response to the Notice, however did not provide a date. I am therefore satisfied, for the purposes of this decision that his employment ceased in September 2018.
· The visa holder claims that he had engaged the services of a migration agent to lodge an application for permanent residency, however there is no record of him having submitted any further visa applications with the Department since the cessation of his employment with Tyre Barn.
· Department records show the visa holder has not lodged a new employment sponsorship in association with his visa since his employment ceased.
· There is no indication the visa holder has made any arrangements to depart from Australia or that he contacted the Department to report the change in his employment circumstances or pending unfair dismissal case.
· In reference to visa condition 8107, more than 90 days passed since the visa holder’s employment ceased and he did not depart Australia or apply for another type of substantive visa and the Department did not receive a new business sponsorship application on his behalf.
· Based on the above, I am satisfied there are grounds for cancellation of the visa holder’s Temporary Work (Skilled) (subclass 457) visa under section 116(1)(b) of the Migration Act 1958 on the basis that he has not complied with visa condition 8107.
PART D: DECISION WHETHER TO CANCEL
Did the visa holder provide reasons why the visa should not be cancelled in response to the Notice of Intention to Consider Cancellation? Yes
Reasons:
· The visa holder stated that he was employed with Tyre Barn from February 2011 until November 2014 while he held his Student visa. When he returned to Australia in 2015 holding his Temporary Work visa, he started to work for Tyre Barn on a full-time basis as a Motor Mechanic.
· The visa holder found he was not receiving his salary, which made him very concerned. He had to rely on his friends in order to cover his living expenses. Whenever the visa holder approached his employer, Palitha Dissanayake, about his salary payments, his employer would tell him he would pay him later.
· Mr Dissanayake informed the visa holder that he knew a very good migration lawyer in Sydney, who was assisting his brother, Dinesh—who was also an employee of Tyre Barn— in applying for permanent residency.
· The agent is Champa Buddhipala from C&CT Migration Consultants. The visa holder stated he was contacted by the migration lawyer who informed him he was eligible for permanent residency and that he should submit an application before the rules are changed. The visa holder stated he was reluctant to pay the agent because he was running out of money, however his employer insisted that he would reimburse the costs. The visa holder stated he paid the agent $1500 of his own money. A copy of a bank receipt for this payment made on 1 May 2017 was provided in the response.
· The visa holder travelled offshore between February and April 2017 to marry his wife in India. He hopes to eventually bring his wife to Australia so they can settle permanently.
· When he returned to Australia, the visa holder experience difficulties in obtaining paperwork from his employer to prepare his application for permanent residency. His employer kept asking him to wait.
· After his employer’s brother, Dinesh was granted his permanent residency, things started to change at his work. Long serving staff were getting fired and the business started dealing through cash; they were not paying correct superannuation or delivering appropriate training to staff.
· On an unspecified date at work, his employer, Mr Dissanayake swore at him and kicked him off site. The visa holder was called back in to work for a couple of days, however his employer refused to pay his wages.
· He became very depressed and felt threatened that his employer would have him deported from Australia. He felt his employer had given him false hopes that he could help him obtain permanent residency in Australia.
· The visa holder claims that he is due to attend court for underpayment of his wages and unfair dismissal with Tyre Barn. He claims he has engaged the services of employment lawyer, Adrian Snodgrass from Fitzroy Legal Services.
· The visa holder stated that the criminal charges he is currently facing will be handled by a well-known lawyer and that he has a right to remain innocent until proven guilty.
· He is a hard working person who is looking after his parents and newly married wife. He is 37 years old. He is now engaged in a legal battle with his former employer which could take anywhere from 8 to 10 months. He wants to win this battle to send a message to employers who play with their employees’ futures.
· The visa holder understands Australia’s culture and values. Australia is a second home to him and he wants to live in this country for ever. Cancellation of his visa would sent him to “darkness for forever please consider all this before making a decision.”
Assessment
In coming to the following assessment I have taken into account the visa holder’s response to the Notice of Intention to Consider Cancellation, the relevant legislation in the Migration Act 1958 and Migration Regulations 1994, and the guidelines set out in Procedural Instruction General visa cancellation powers (s109, s116, s128, s134B and s140) on visa cancellation.
· Purpose of the visa holder’s travel to and stay in Australia
The visa holder first arrived in Australia on 17 January 2008 as the holder of a Student visa. He was enrolled to study a Diploma of Automotive Management and since his arrival has obtained further qualifications, including Certificate IV and Diploma in Automotive Technology, as well as Diplomas in Business and Management.
The visa holder stated he was employed part-time by Tyre Barn while he completed his studies. He later obtained his Temporary Work visa based on his qualifications as a Motor Mechanic and commenced working full-time for Tyre Barn.
In his response to the Notice, the visa holder has not provided any information regarding whether he has obtained new employment since his employment with Tyre Barn ceased in September 2018. Upon checking Department records, there is no indication or record of him submitting an application for a further visa in Australia, despite his current visa expiring on 7 March 2019.
While I acknowledge and give consideration to the visa holder’s purpose of travel to and stay in Australia on the basis of his skills as a Motor Mechanic, I note the visa holder has not demonstrated any clear intention on how he wishes to continue his stay in Australia, only that he wishes to stay in Australia for ever. I therefore give the visa holder a little weight on this consideration.
· The degree of hardship that may be caused to the visa holder and any family members
The visa holder has resided in Australia since January 2008. He lived offshore for a period between November 2014 and September 2015, then returned on a Temporary Work visa. In total, he has lived in Australia for ten years and four months. I accept that the length of time he has lived in Australia would likely mean his connection to India would have lessened somewhat.
In his response to the Notice, the visa holder stated that if his visa is cancelled it will send him “in darkness for forever.” I accept that given the visa holder’s hopes to remain in Australia that a cancellation decision will cause him emotional and financial hardship, however he has not given a clear indication on what his specific intentions are in Australia in terms of his immigration matters. His current visa is due to cease on 7 March 2019 and to date he has not lodged any further visa applications to extend his stay in Australia.
The visa holder has not provided any information regarding his present circumstances, whether he is currently employed or any commitments or relationships he may have in the community.
In his response, the visa holder declared he married his wife during his overseas travel between February and April 2017.The visa holder declared on his incoming passenger card he travelled to India during this period. There is no evidence the visa holder’s wife has entered Australia. In the event a decision is made to cancel the visa, the visa holder can reside with his wife in India, as she does not appear to have any right to reside in Australia based on information provided by the visa holder in his response. According to previous visa applications, his family also reside in India.
I find the visa holder has resided in Australia for a significant period of time and therefore accept the visa holder has established some ties to the community. However, I also note he is still the holder of a temporary visa and has not secured permanent residency since his arrival over ten years ago.
In view of the above information, I give the visa holder some weight on this consideration.
· The circumstances in which the ground for cancellation arose
The visa holder claims he was unfairly dismissed by his employer on an unspecified date. According to information provided to the Department by Victoria Police, his employment with Tyre Barn ceased in September 2018. This was verified by the Department on 14 February 2019, after contacting the visa holder’s employer.
The visa holder claims he has lodged a complaint for unfair dismissal and unpaid wages and has engaged a lawyer, however has not provided any evidence of his complaint and as such I am unable to verify this claim.
There is no record in Department systems of the visa holder submitting an application for another visa or submitting a new nomination in order to maintain his obligations with his Temporary Work visa condition 8107.
The visa holder also claims that he paid a migration lawyer in Sydney $1500 in order to apply for permanent residency. The visa holder provided a Commonwealth Bank receipt for a cash deposit of $1500 to a third party made on 1 May 2017. The visa holder has not provided any further evidence of his engaging a migration lawyer to apply for a further visa, such as a contract or any written correspondence, therefore I am unable to verify this claim.
Irrespective of the circumstances in which the visa holder’s employment with Tyre Barn ceased, I consider the visa holder still has a responsibility to ensure that he takes necessary steps to resolve his status in order to ensure he is acting in compliance with visa condition 8107. Given the length of time the visa holder has resided in Australia, and taking into account the level of knowledge he would have acquired of the immigration system in Australia in that time, I do not accept that he was not aware of his responsibilities.
In view of the above, I give no weight in the visa holder’s favour on this consideration.
· The visa holder’s past and present behaviour towards the Department
During the present visa cancellation process, the visa holder has been cooperative and responded to the Notice within the prescribed timeframe. There is no record of any adverse behaviour by the visa holder towards the Department.
I therefore assign some weight in favour of the visa holder on this consideration.
· Any consequential cancellations that may result
There are no consequential cancellations that may result in the event a decision is made to the cancel the visa.
As such, I am not taking this matter into consideration.
· Legal consequences of a decision to cancel the visa
If the visa is cancelled, the visa holder may make an application for a merits review of his cancellation decision with the Administrative Appeals Tribunal (AAT); however it must be made within the prescribed timeframe.
If the visa is cancelled the visa holder will become an unlawful non-citizen and be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if he does not voluntarily depart.
The visa holder will be able to make only limited further visa application permissible under section 48 of the Act. Cancellation in these circumstances means that Public Interest Criteria 4013 will apply to the visa holder and that he may not meet the requirement for grant of certain visa subclasses for a three year period.
As visa cancellation will result in some legal consequences, I place a little weight in favour of the visa holder on this consideration.
· Australia’s international obligations
The visa holder is a citizen and passport holder of India. There is no information before me to indicate that cancellation of his visa would be in breach of Australia’s international obligations, nor has he provided any comment suggesting otherwise. I therefore place no weight in favour of the visa holder on this consideration.
· Any other matters
In his response to the Notice, the visa holder states that he is presently facing criminal charges and has appointed a well-known lawyer to defend him in the matter.
The Department is aware the visa holder has been charged with Indecent Assault and Sexual Assault and is due to appear at Melbourne Magistrates Court on 11 April 2019. The matter is still pending a final court ruling.
As this matter does not relate to the cancellation decision I will not be assigning any weight to this consideration.
PART E: DECISION
After considering all the available information, I am satisfied that the grounds for cancelling the visa outweigh the reasons not to cancel the visa. I have therefore decided to cancel the visa holder’s visa…
Tribunal file
As noted above, the applicant made an application for review of the Department’s decision on 15 March 2019 and attended a hearing on 6 May 2019. He also provided:
·letter dated 2 May 2019 from Raghbir Singh Sran, who stated that he knew the applicant for the past 5 years as the applicant worked on Mr Sran’s taxi at Tyrebarn. He states that he last saw the applicant there on 17 December 2018, when he had his car tyres changed and a wheel alignment;
- email on 14 May 2019 in which the applicant provided additional attached documents and stated that: ‘I was sacked by my employer on 23rd September and asked to join again on 17th December it means if I count away days from will be 86 days, I was kicked out from job again from once more upon asking for the rest of my money on 20th December and till my visa got canceled there were only 76 days, and once visa got canceled I was unable to apply for another visa, my last plan was to study in electrical in my Automotive field to get more knowledgeable. This is what I got in that short period of time and with limited resources. I do believe that I will get a fair treatment this time. Will get a positive result. 1. Fairwork 2. Letter from an Employment lawyer 3. ATO Document (Complaint about not paid Super Annuation)
4. letter from Immigration, Tyrebarn owner contacted by immigration on 14th February, (I was told that sponsor informed to immigration on 23rd September in AAT) 5. Work reference letter from Febuary2011 to November 2014 while on a student visa. 6. Application for exemption from paying court fees form. 7. Group certificates for two years (underpaid wages) 8. Sending all three bank statements from 2017 to 2018 9. Photos in the end…;’ and
·letter from Fitzroy Legal Service Inc dated 10 May 2019 which states in part, ‘Mr Guggal instructs us that he was paid cash-in-hand between 27 April 2017 and 23 September 2018 and was given $800 monthly. He is claiming underpayments in the order of $63,000…;’ and
·correspondence from Fair Work Ombudsman in November 2018 indicating that the applicant’s matter with Tyrebarn was unable to be settled via mediation.
As noted above, the Tribunal (as previously constituted) made a decision on 23 May 2019 to affirm the Department’s decision to cancel the applicant’s subclass 457 visa. In doing so, the Tribunal made the following observations and findings:
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23. The Tribunal discussed condition 8107 with the applicant. The applicant acknowledged to the Tribunal that he was aware that his visa conditions were such, that if he left employment with his sponsor that he would need to find a new sponsor within 90 days or his visa may be cancelled. The applicant told the Tribunal that although he ceased employment in September 2018, his employer asked him to work again for the period of 17 December 2018 to 20 December 2018 and submitted his visa was cancelled before 90 days had expired. In a follow up email to the Tribunal after the hearing, the applicant stated that the visa was cancelled 76 days after he left employment, and that his last day of employment should be considered 20 December 2018, not 23 September 2018.
24. The Tribunal asked the applicant what if any actions he undertook to find a new sponsor after he ceased employment and up until his visa was cancelled. The Tribunal also put to the applicant that his visa was cancelled the day before his 457 visa was due to expire, yet there was no evidence that he had undertaken any steps to apply for any other kind of visa and it would appear that his visa would have expired and he would likely have become unlawful.
25. In response, the applicant told the Tribunal that he was mentally unwell from the poor treatment by his sponsor. The Tribunal asked if he had been seeing a doctor or other medical professional to treat his claimed mental health issues, however, the applicant said he had no money to do so. He said that he went to a doctor once, but could not afford to go again. After the hearing the applicant provided a receipt from the Family and Medical and Dental clinic dated 20 August 2018 for a consultation, however, there is no information before the Tribunal regarding the nature of the consultation.
26. The applicant told the Tribunal that his plan was to study an automotive electrical course and apply for a student visa as he could not find a new sponsor. The Tribunal asked what steps he had taken to enrol into a course, as an enrolment would have been critical to apply for a student visa. The applicant said he had only thought about it and not taken any steps as he was ‘lazy’. The Tribunal again reiterated its concerns that it appeared he and not taken any steps to regulate his visa status leading up to his visa expiry date. The applicant’s only response was to restate that he was ‘lazy’.
27. The Tribunal asked if he had considered returning to India and if he would be able to obtain employment there. The applicant stated that his wife was currently in India, and he could return and would likely get employment, however, he could earn more money in Australia and he would like to stay in Australia because he has been here for such a long time.
28. The Tribunal asked the applicant to address the information it earlier raised under 359AA regarding the allegations that he was working at Dingly Star Garage. The applicant stated that he was never working there, and that it was a business owned by his friend and that as he wasn’t employed he would spend a lot of time there visiting and hanging out.
29. The Tribunal has carefully considered the evidence before it.
30. The applicant stated early in the hearing that he had ceased employment with the sponsor in September 2018, which was consistent with written statements he had previously supplied, and consistent with information the sponsor gave the Department in February 2019. However, after the Tribunal explained condition 8107 and the requirement he must find a new sponsor within 90 days otherwise his visa may be cancelled, the applicant then remarked that he actually also worked for several days in December 2018, therefore the 90 days should start from 20 December 2018 and that is now when he believes to be the date he ceased employment. The Tribunal is of the view that the applicant was attempting to change the narrative to suit his purposes. The Tribunal does not accept this claim by the applicant as it is not consistent with his previous statements, or evidence from the sponsor. Additionally the letter from the applicant’s own solicitor indicates that his employment ceased in September 2018. The Tribunal therefore finds the applicant ceased employment in September 2018.
31. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment and has not done so since the cessation of his employment in September 2018. On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b).
32. 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
33. 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’.
34. The Tribunal has taken into account all of the evidence before it.
35. In the applicant’s evidence he told the Tribunal that he was dismissed from his role in September 2018 because he had raised underpayment issues with his sponsor. The Tribunal acknowledges that the applicant has taken steps to address his allegation of underpayment with Fair Work and has instructed the Fitzroy Legal Service. The Tribunal is of the view that any action taken against the employer regarding the alleged wage underpayment can continue even if he is absent from Australia.
36. The purpose of the 457 visa is for an applicant to work on a temporary basis (usually for up to 4 years) for an approved sponsor in an approved occupation. Since ceasing employment with Tyre Barn in September 2018, there is no evidence before the Tribunal to demonstrate that he has been able to secure another nomination. The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list and that if an applicant had been unable to secure an approved nomination then this meant the applicant was not able to fulfil the purpose of the 457 visa and this weighs strongly in favour of cancelling the visa. The applicant gave evidence that he planned to undertake further study. However, study is not in line with the purpose of the original visa grant, which is to work as a Motor Mechanic. Further the applicant gave evidence that he had only thought about it. He took no action towards enrolling into a course of study or progress towards a student visa prior to his visa being cancelled (the day before it was due to expire) because he was too ‘lazy’.
37. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted his most recent 457 visa was to work in the occupation of Motor Mechanic with Tyre Barn, that purpose ended in September 2018 when the applicant ceased working for that company. No evidence has been provided to demonstrate that he has been able to secure another approved nomination with another employer. Additionally, according to the checks the Tribunal undertook, and as referred to in the hearing under s359AA, there were no new relevant business nominations approved in respect of the applicant since he left employment and since his visa was cancelled in March 2019. Additionally the applicant’s visa was cancelled one day before it was due to expire so the timeframe for the purpose of the visa has ended.
38. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances and his inability to secure another approved nomination since he ceased employment and because his visa was cancelled one day before it was due to expire weigh in favour of cancelling the 457 visa.
39. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(b) the applicant has complied with visa conditions.
40. The Tribunal has also considered the circumstances in which the ground for cancellation arose. The Tribunal accepts that the applicant ceased employment with his approved sponsor due to wage payment issues. However, in this case, the ground for cancellation arose 90 days consecutive after the applicant ceased employment with the sponsor as he was unable to secure another nomination within the 90 day period. The Tribunal notes there is no corroborative evidence that since he left employment that he has secured sponsorship by a standard business sponsor who has been able to have a nomination application approved on his behalf. The Tribunal finds that these circumstances weigh in favour of cancelling the applicant’s visa.
41. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. However, corroborative evidence pertaining to hardship has not been provided, nor has any information been submitted to the Tribunal pertaining to the applicant’s poor current mental health, which he claims to be suffering. Additionally, the applicant’s wife is currently residing in India, and he stated that he would be able to find employment in India if he returned.
42. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant is currently in detention. The applicant will be required to depart Australia if the visa is cancelled. If the visa is cancelled the applicant will be affected by s.48 of the Act and will have limited options for applying for substantive visas onshore without the intervention of the Minister. The Tribunal gives limited weight to the mandatory legal consequences of cancellation as they are the intended consequences of legislation.
43. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.
44. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled as he has been in Australia for many years. The Tribunal also accepts that the applicant on the basis of the evidence before it has generally complied with visa conditions and has been cooperative with the Department. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor. Additionally, the visa was cancelled one day prior to it expiring, so the applicant was able to enjoy the full length of his visa grant, short of one day, during the intended period. The applicant can, should he wish to do so, make an application offshore for another visa in the future.
45. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
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Judicial review application
The applicant sought judicial review of the above decision, at first instance in the Federal Circuit Court of Australia (FCCA). On 10 March 2022, the FCCA dismissed the applicant’s judicial review application, finding no error in the Tribunal’s decision.
The applicant sought further judicial review with the Federal Court of Australia (FCA). On 23 May 2019, the FCA (per O’Callaghan J) allowed the applicant’s appeal and set aside the Tribunal’s decision and remitted the matter back to the Tribunal for reconsideration according to law. In making this direction, O’Callaghan J found that the Tribunal had made a jurisdictional error in finding that the applicant ceased employment in September 2018, when there was cogent evidence from him that he worked for his employer in December 2018, and that this error was material as it affected the Tribunal’s analysis of whether the ground for cancellation of the applicant’s subclass 457 visa was made out.
In particular, O’Callaghan J made the following findings and observations:
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CONSIDERATION
39. In my view, the application for an extension of time should be granted, and the appeal should be allowed.
40. The critical part of the Tribunal’s reasoning is that the applicant was not to be believed because it was only after it had been explained to him at the hearing that, under Condition 8107, he was obliged to have found a new sponsor within 90 days otherwise his visa may be cancelled that the applicant “then remarked that he actually also worked for several days in December 2018” and that he was “attempting to change the narrative to suit his purposes” and that his new version was “not consistent with his previous statements, or evidence from the sponsor” (emphasis added). That, together with the reference in the Fitzroy Legal Service letter being something that “indicate[d] that his employment ceased in September 2018”, led the Tribunal to find that the applicant ceased employment in September 2018.
41. But on any view of the two statements and the reference, that evidence was consistent – not inconsistent – with the claim that the Tribunal regarded as something akin to recent invention.
42. It is true that the taxi driver does not say, in terms, that the applicant actually did the work referred to, but it is the preferable reading of the reference. But the two statements, it seems to me, are tolerably clear – “he (the sponsor) kicked me out and called me back a short time on the job for a couple of days” and “I returned to work” were assertions contained in the first statement. And the second statement puts dates to that return to “work[] there again” – namely, 17, 18 and 19 December 2018. In my view, it is very difficult to understand how those statements could on any view of them be read as inconsistent with his statement before the Tribunal that “he actually also worked for several days in December 2018”.
43. I also accept the applicant’s submission about the Fitzroy Legal Service letter. It simply does not speak to the issue of whether the applicant worked in December – it is about his claim for unpaid wages. That is made clear by the fact that the letter states that the applicant had sought assistance “with recovering unpaid wages” and was claiming underpayments in the order of $63,000.
44. And there can be no doubt about the materiality of the finding at paragraph [30] of the Tribunal’s reasons – it is the crux of the factual finding that the applicant ceased employment in September 2018. And it is jurisdictional, because, as the applicant submitted, had the errors not been made, there is a realistic possibility the Tribunal could have found the applicant did comply with Condition 8107, and would not therefore have been satisfied that there were grounds to cancel the visa under s 116(1)(b), with the result that the visa would not have been cancelled. The materiality of the error makes it jurisdictional.
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Consideration by the presently constituted Tribunal upon remittal
The Tribunal has considered carefully the oral and documentary evidence provided to the Department and the Tribunal by the applicant, and to the judgment of O’Callaghan J of the Federal Court of Australia.
The Tribunal is satisfied that the applicant has consistently maintained – since receiving the Department’s NOICC – that he ceased work for Tyrebarn on 23 September 2018 after being fired by his employer, but returned to work there between 17 and 20 December 2018 at his employer’s request, due to the overseas absence of another employee, before being dismissed again by his employer. The Tribunal acknowledges that this was not always very well articulated by the applicant, that his employer did not mention the December 2018 period of employment to the Department when contacted by the Department in early 2019, and that the applicant does not have much in the way of documentary evidence to support his claim of returning to work for 3-4 days in December 2018 for Tyrebarn.
However, the Tribunal gives weight to the fact that (as already noted) the applicant did mention this return to work in December 2018 prior to and during the Tribunal hearing, and also conceding that he was originally sacked on 23 September 2018. The Tribunal also considers it understandable that the employer may have neglected to mention the applicant’s return to the Department, as the employer may have simply forgotten this, or may have perceived that it was not in his interest to acknowledge that the applicant had returned to work in that period. Finally, the Tribunal gives some weight to the fact that the applicant did provide a written statement to the Tribunal from a former customer, Raghbir Singh Sran, dated 2 May 2019, who stated that he knew the applicant for 5 years as an employee at Tyrebarn and that he (Mr Sran) last saw the applicant there on 17 December 2018, when (it is implied) the applicant worked on Mr Sran’s taxi.
Given the above, the Tribunal considers it appropriate to extend the benefit of the doubt to the applicant, and it accepts his evidence that he initially ceased employment with his sponsoring employer on 23 September 2018 but returned to work there between 17 and 20 December 2018 at the request of his employer (and with the hope that this might assist his attempts to resolve his underpayment by his employer) before ceasing employment again after being dismissed by his employer for a second time. It is satisfied that he ceased work for his sponsoring employer on 20 December 2018.
As noted above, the Department issued a NOICC on 18 February 2019 and made its decision to cancel the applicant’s subclass 457 visa on 6 March 2019 for breach of condition 8107; specifically condition 8107(3)(b), which required that he had not ceased employment with his sponsoring employer for more than 90 consecutive days. The Tribunal is satisfied, on the basis of its findings above, that at the time that the applicant’s subclass 457 visa was cancelled on 6 March 2019, less than 90 consecutive days had elapsed since he ceased work with his sponsoring employer on 20 December 2018 (rather, approximately 75 days had elapsed).
If the decision maker, including Tribunal on review, is not satisfied that the ground specified in the notice is made out, then the cancellation power does not arise for consideration. In such cases, the appropriate course for the Tribunal would be to set aside the cancellation decision and substitute a decision that the visa is not cancelled.
In this case, the Tribunal finds that the ground specified in the NOICC was not made out as at 6 March 2019 (the date of cancellation) and therefore the cancellation power does not arise in this case.
The appropriate course is therefore for the Tribunal to set aside the cancellation and substitute a decision that the applicant’s visa is not cancelled. It is unnecessary for the Tribunal to consider the discretionary factors about whether or not to cancel the applicant’s visa, as this process only comes into play if the ground for the cancellation is established.
For the above reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.
The Tribunal notes that in this case, setting aside the cancellation and substituting a decision that the applicant’s visa is not cancelled makes little practical difference to the applicant, as his subclass 457 visa would have in any case expired on 7 March 2019, and (as noted by the previous Tribunal) there is no evidence that he had secured a new employer to sponsor and nominate him. The applicant is currently in immigration detention and this decision will not directly change this given his subclass 457 visa would have expired by now. He may wish to (re)apply for a bridging visa E but that will be a matter for the Department for assess if and when he makes such an application.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 457 (Temporary Work (Skilled)) visa.
Alison Mercer
Member
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