Guggal (Migration)

Guggal (Migration) [2019] AATA 1624 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kamaljeet Guggal
CASE NUMBER:  1906223
HOME AFFAIRS REFERENCE(S):           BCC2019/44271
MEMBER:Cathrine Burnett-Wake
DATE:23 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 23 May 2019 at 12:48pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – employment cease date – consideration of discretion – alleged claim of underpayment – purpose of visa grant – unable to secure another nomination within 90 days – decision under review affirmed

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 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant ceased employment with his sponsor and therefore breached condition 8107. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 6 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani) and English languages.

4. 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

5. 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

6. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 is attached to the applicant’s visa. Of relevance in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.

7. The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 7 March 2015 on the basis of a nomination by Tyre Barn (Aust) Pty Ltd (the sponsor) for the position of Motor Mechanic (General) ANZSCO 321211.

8. On 18 February 2019, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) by the Department, stating that it appears that the applicant had ceased employment with the sponsor effective September 2018, which indicates that he is in breach of paragraph 8107(3)(b) of condition 8107 attached to the visa, because he appears to have ceased employment with the sponsor for a period exceeding 90 consecutive days.

9. The applicant wrote to the Department in response to the NOICC. The decision record outlines that in his response he claims he is not responsible for the non-compliance set out in the notice because he was unfairly dismissed by his sponsor without reason. The visa holder further claims he has lodged an unfair dismissal case and has engaged legal representations from an employment lawyer. The visa holder further claimed in 2017 he appointed a migration lawyer, through the recommendation of his sponsor so that he could lodge an application for permanent residency. He claimed that he paid a migration lawyer $1500 of his own money based on advice he was eligible to apply for permanent residence in Australia. The visa holder claimed the sponsor gave him false hope that he would be able to obtain permanent residency in Australia.

Notwithstanding the applicant’s response to the NOICC, the Department proceeded with the cancellation on 6 March 2019. The grounds for cancellations, as set out in the Department’s decision were as follows:
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 purpose 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 arrangement 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.

Evidence before the Tribunal

At the outset of the hearing the Tribunal outlined to the applicant that it was aware of charges pending against him, as outlined in the decision record and in his email to the Tribunal regarding the court date of 16 May 2019. The Tribunal explained to the applicant that his review application before the Tribunal was not in relation to these charges. Nor are they relevant for the purposes of the Tribunal to determine whether there are grounds for his 457 visa to be cancelled under s116(1)(b) because of a breach of condition 8107. The Tribunal also cautioned the applicant about self-incrimination and that the purpose of the hearing was not to discuss these charges, however, if he did make any statements regarding the pending charges, they could be used against him in evidence for any later proceedings. The Tribunal and the applicant did not discuss the pending charges during the hearing.
At hearing, the Tribunal, pursuant to s.359AA, of the Act provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.
There were two main components to the information put to the applicant, the first related to the applicant’s employment with his sponsor; the second was regarding information that he had been working for another employer. The information was set out to the applicant as follows:
Firstly, that the Tribunal had before it information from the Department records and the particulars of the information could be summarised as:
- The applicant was granted a Subclass 457 visa on 17 September 2015. It was originally valid to 7 March 2019 but was cancelled on 6 March 2019.
- The applicant’s visa was sponsored by Tyre Barn (Aust) Pty Ltd.
- The applicant’s Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that he must not cease to be employed by his approved sponsor; and that if he ceased employment, the period must not exceed 90 consecutive days.
- The applicant ceased being employed by his sponsor on or before September 2018.
- On 6 March 2019, the date the applicant’s visa was cancelled, he had not worked for his sponsor for more than 90 consecutive days.
- There is no information to indicate that the applicant recommenced employment with his sponsor.
- A recent check indicates that no new relevant business nominations have been approved in respect of the visa applicant since his visa was cancelled.
The Tribunal then outlined to the applicant that the above stated information was relevant because it indicates that:
- The applicant breached a condition of his Subclass 457 visa, and there are grounds for cancelling his under s.116(1)(b) of the Migration Act.
- There are circumstances which may indicate that the applicant’s Subclass 457 visa should be cancelled, including that:
The Tribunal outlined that in conducting the review in the applicant’s case:
- The Tribunal will first consider if there are grounds to cancel his Subclass 457 visa in accordance with s.116 of the Migration Act.
- If the Tribunal determines that there are such grounds, it will then consider if the applicant’s visa should be cancelled, taking into account all the relevant information.
The second component of information put to the applicant under s.359AA was that the applicant’s sponsor advised the Department on 14 February 2019, during a telephone conversation, that the applicant had been working at another business on Dingly Avenue Dandenong. Further, that the Victorian police located the applicant at this business, ‘Dingly Star Garage.
It was explained to that applicant that this information was relevant to his review because it may indicate that he was working for an employer other than his sponsor, which is not permitted as per condition is condition 8107(3)(a)(ii)(B). It was explained that compliance with visa conditions is a relevant consideration in the exercise of discretion whether the visa should be cancelled.
The Tribunal asked the applicant if he required additional time to comment on the information put to him under s359AA, however, he said he wished to proceed with the hearing.
The applicant conceded that he had ceased employment in September 2018 however, that he wished to explain to the Tribunal the circumstances that led to the cancelation.
The applicant’s verbal evidence to the Tribunal was that he was dismissed from his role in September 2018 because he had raised underpayment issues with his sponsor. The applicant told the Tribunal that he had pursued his underpayment claim with Fair Work after he was dismissed, however, no resolution was reached and that Fair Work told him that he would need to pursue his own court action regarding the alleged claim. After the hearing the applicant provided the Tribunal with email correspondence between him and Fair Work dated September and November 2018 indicating he did make a complaint to Fair Work.
In addition to the complaint lodged with Fair Work, the applicant also told the Tribunal that he had engaged a private solicitor for court action and that a date had been set. The Tribunal told the applicant it had no evidence of this, to which the applicant responded he would obtain a letter from his solicitor. After the hearing the Tribunal was provided with a letter from Fitzroy Legal Service Inc. dated 10 May 2019 which states as follows:
Mr Guggal has approached our service for assistance with recovering unpaid wages owed by his former employer, Tyre Barn.
Mr Guggal instructs 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.
We have contacted the employer to request copies of Mr Guggal’s pay slips and tax records and we await their response.
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.
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.
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.
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’.
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.
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.
The Tribunal has carefully considered the evidence before it.
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.
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).
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

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’.
The Tribunal has taken into account all of the evidence before it.
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.
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’.
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.

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

DECISION

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

Cathrine Burnett-Wake
Member

[2019] AATA 1624

23 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction