Habib (Migration)

[2018] AATA 3571

Habib (Migration) [2018] AATA 3571 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khandroker Ahson Habib

CASE NUMBER:  1714408

HOME AFFAIRS REFERENCE(S):           BCC2017/945278

MEMBER:John Cipolla

DATE:7 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 August 2018 at 11:57am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class VC) – Subclass 457 (Temporary Work (Skilled) visa – Breach of employment conditions – Ceased work in nominated occupation for more than 90 days – New nomination application lodged – Outcome not finalised – Decision under review affirmed

LEGISLATION
Migration Act 1958, s116
Migration Regulations 1994, Schedule 8, condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 June 2017 made by a delegate of the Minister for Immigration and Border Protection 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 did not comply with condition 8107 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 applicants nominating employer ceased trading on 11 October 2016 and thus the applicant’s employment ceased with them on 11 October 2016 and that the evidence before the Department was that the applicant had ceased to be employed in a nominated occupation for more than 90 consecutive days. 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 was represented in relation to the review by his registered migration agent.

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?

6. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 24 April 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 11 October 2016 and his failure to be the subject of an approved nomination for more than 90 consecutive days since that time.

7. The applicant provided a response to the NOICC on 11 May 2017. The submission provided on behalf of the applicant by his representative noted that the circumstances giving rise to the cancellation of the applicant’s visa were beyond his control, namely that his sponsor ceased trading and went into external administration. The submission noted that the applicant had been offered new employment with an alternate employer in the same nominated role of cook subject to the approval of a new 457 nomination. Submission noted that a new nomination application to this effect had been lodged with the Department on 10 May 2017 nominating the applicant for this role.

8. The delegate proceeded to cancel the applicants Subclass 457 visa in a decision made on 27 June 2017. The delegate noted that the most recently approved nomination for the visa was with G&Z (AUST) Pty Ltd t/a Café Bondi and that the Department was advised by the appointed liquidator, Chifley Advisory, that the business effectively ceased trading on 11 October 2016. The delegate noted that the applicant ceased employment with the sponsor by at least 11 October 2016. The delegate noted that on 10 May 2017, shortly after the applicant received the NOICC that a new nomination was commenced for him with MS AUS BD Pty Ltd t/a The Country Boy’s Cafe and Restaurant in Tamworth. The delegate noted that this nomination application commenced 211 days after the latest date in which the applicant could have ceased employment with the sponsor. The delegate went on to find that the applicant had not complied with the requirements of condition 8107(3)(b) which was attached to his visa as he had ceased employment with the sponsor for a period exceeding 90 consecutive days.

9. The delegate noted that the nomination application lodged by the MS AUS BD Pty Ltd t/a The Country Boy’s Cafe and Restaurant in Tamworth had not yet been finalised and that the outcome of the application was not certain.

10. The applicant lodged an application for review with the Tribunal on 5 July 2017.

11. On 26 June 2018 the Tribunal wrote to the applicant inviting him to comment on information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. The Tribunal in its letter noted that the applicant had been granted a Subclass 457 visa on 29 August 2014. The Tribunal noted that this visa was valid until 29 August 2018 but was cancelled on 27 June 2017 because the applicant had ceased employment with his sponsoring business on 11 October 2016. The Tribunal noted that there was no information to indicate that the applicant had recommenced employment with his sponsor. The Tribunal noted that a recent check of Departmental records indicated that no new relevant business nominations had been approved in respect of the applicant since his visa had been cancelled. The Tribunal gave the applicant an opportunity to comment on whether or not he agreed that the grounds for cancellation of his visa existed and to provide information pertaining to the relevant considerations as to whether or not the applicant’s visa should be cancelled. The applicant was required to provide a response to the Tribunal by 9 July 2018. As at 7 August 2018 no response has been provided and the Tribunal is able to proceed to decision based on the evidence before it.

    FINDINGS AND REASONS

12. The Tribunal has considered the evidence before it.  The Tribunal finds on the evidence before it that the period during which the holder ceased relevant employment has exceeded 90 consecutive days.

13. As more than 90 consecutive days have passed since the applicant ceased employment with the employer who most recently nominated him, the Tribunal finds that the applicant did not comply with condition 8107(3)(b) that was imposed on his 457 visa. 

14. 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

15. 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’.

16. The applicant was granted a Subclass 457 visa to work for his approved sponsor and this employment ceased on 11 October 2016.

17. The Tribunal considers it significant that the applicant is still not the subject of a current approved nomination. The Tribunal considers that the applicant has had fair opportunity to become the subject of an approved nomination by an approved sponsor. The applicant has not worked for an approved sponsor in an approved occupation since October 2016.

18. The Tribunal gives weight to the above considerations in favour of cancelling the visa.

19. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. For the reasons discussed above, the Tribunal has found that the applicant breached condition 8107(3)(b) of his visa as the period during which he ceased employment with G&Z (AUST) Pty Ltd t/a Café Bondi exceeded 90 days.

20. In relation to the applicant’s past and present conduct towards the Department, there is nothing before the Tribunal to suggest that the applicant has not been cooperative in his dealings with the Department apart from his failure to notify the Department of the cessation of his employment with his sponsoring employer in October 2016. 

21. The Tribunal finds overall that the applicant’s conduct towards the Department and general compliance with visa conditions weigh against cancelling the visa. 

22. The Tribunal has also had regard to the circumstances of the visa cancellation. The ground for cancellation arose when the period during which the applicant ceased employment with the sponsor that most recently nominated him exceeded 90 days.

23. The Tribunal does not consider it the responsibility of the Department or any other authority to notify the applicant about his visa conditions, including the 90 days requirement. Indeed the notification of the grant of a 457 visa letter would have set out the conditions attached to the 457 visa, including condition 8107. Furthermore the Department provides an online facility (Visa Entitlement Verification Online – VEVO) for visa holders to check the status and conditions of their visas. The Tribunal considers it the applicant’s responsibility to be aware of his visa conditions and to comply with them.

24. The evidence indicates that the applicant ceased working for G&Z (AUST) Pty Ltd t/a Café Bondi in October 2016 and the Tribunal considers, as discussed above, that the applicant has had sufficient time since then to become the subject of another nomination by an approved business sponsor.

25. The Tribunal gives little weight to the circumstances in which the ground of cancellation arose in favour of not cancelling the visa.

26. No evidence has been adduced which establishes the hardship that may be experienced if the applicant’s visa is cancelled.

27. The Tribunal has also had regard to the mandatory legal consequences of cancellation.  The Tribunal accepts that if the visa is cancelled the applicant will be affected by s.48 of the Act. He will not be able to apply for another Temporary Work Skilled visa (now the TSS visa) onshore, and will have limited options for applying for a valid visa in Australia, without the intervention of the Minister.

28. The Tribunal gives limited weight to the mandatory legal consequences of cancellation as they are the intended consequences of legislation.

29. In relation to consideration regarding international obligations, there is no evidence before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.

30. The Tribunal has weighed up all of the relevant circumstances in this case and considers that the circumstances in favour of cancelling the 457 visa outweigh those in favour of not cancelling the visa.

    CONCLUSION

31. In considering the circumstances as a whole, the Tribunal concludes that the applicant’s 457 visa should be cancelled.

    DECISION

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

    John Cipolla
    Senior Member