Hadkar (Migration)

[2020] AATA 2349

Hadkar (Migration) [2020] AATA 2349 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sankeet Hadkar

CASE NUMBER:  1902717

HOME AFFAIRS REFERENCE(S):          BCC2018/4675694

MEMBER:Nicola Findson

DATE:23 March 2020

PLACE OF DECISION:  Perth

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 23 March 2020 at 11:06pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – employment with sponsor ceased over 60 days – occupation of Café or Restaurant Manager – sponsor’s business sold – new employer offering nomination – active efforts to obtain new sponsor – new employer’s difficulty finding a suitable manager – decision under review set aside

LEGISLATION

Migration Act 1958, s 116
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 29 January 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 applicant provided to the Tribunal a copy of the delegate’s notification of cancellation for the purposes of the review.  It records that the applicant was sponsored by The Trustee for Ly Family Trust.  He was granted a Subclass 457 visa on 30 November 2016 to work in the nominated occupation of Café or Restaurant Manager.  Condition 8107 was attached to the visa. This condition requires the applicant to work in the occupation listed in the most recently approved nomination, and if the applicant ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. The Department was informed that the applicant had ceased employment with the sponsor, effective 1 April 2018. 

3. On 4 January 2019, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa.  The applicant responded to the NOICC on 11 January 2019.  He did not dispute that the ground for cancellation existed.  He indicated in his response, among other things, that his employment with the sponsor ceased because the business was sold.  He also indicated he had been unable to find alternative employment.

4. On 29 January 2019 the delegate cancelled the applicant’s visa under s.116(1)(b). The delegate found that the applicant had not complied with condition 8107 and was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

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

6. The applicant appeared before the Tribunal on 22 October 2019, to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

10. 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. It relevantly requires the applicant to work only in the occupation listed in the most recently approved nomination and, unless subclause (3A) applies, to only work in a position in the business of the sponsor, or an associated entity of the sponsor. Also, condition 8107(3)(b) requires that if the applicant ceases employment, the period during which he ceases must not exceed 60 consecutive days.

11. At the hearing, the applicant confirmed to the Tribunal that he started working for the sponsor in 2016.  He confirmed that he ceased that employment in April 2018.  The reasons he ceased working for the sponsor are discussed in more detail below.

12. On the evidence before it, the Tribunal finds the applicant ceased employment with his sponsor in April 2018.  He has not returned to work for the sponsor since that time.  The Tribunal finds the applicant has ceased employment for a period of more than 60 consecutive days.  He is therefore in breach of condition 8107.

13. For these reasons, the Tribunal is satisfied that the ground cancellation in s.116(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

15. Prior to the hearing, the applicant provided a submission to the Tribunal.  He submitted, among other things, that he had found employment in regional Queensland and that his employer – the Coffee Club - was willing to lodge a nomination application for the same occupation (Cafe or Restaurant Manager), of which he would be the subject.  A letter dated 16 October 2019, from Mr Abdy, the owner of the Coffee Club in Mount Isa, Queensland was provided in support of the applicant’s submission.  The letter set out that despite repeated efforts, the Coffee Club Mount Isa had failed to attract suitable candidates to key positions within the restaurant.  It stated that the applicant had proven his ability in the position, and that subject to the resolution of his review before the Tribunal, the Coffee Club would like to nominate him in the role.

16. At the hearing the applicant told the Tribunal that he had originally come to Australia as a student in February 2013 and that he completed a Diploma as well as an Advanced Diploma in Hospitality in Australia.  He told the Tribunal he attained a hospitality qualification in India, and gained nine months’ work experience as a sales representative in a winery there before coming to Australia. He said that while he was studying he started working, on a causal basis, for his sponsor. He said he was granted a Subclass 457 visa after the completion of his studies, in November 2016, and that he had worked for his sponsor on a full time basis from that date until 1 April 2018.  The applicant indicated that the circumstances leading to the breach were due to factors beyond his control.  He said he was content working for his sponsor but the reason his employment ceased was because the sponsor terminated his services.  He said he was given a month’s notice of the fact that the sponsor’s business was closing and that his position would be terminated.

17. The applicant indicated that he did everything he could to obtain another sponsor when his employment with The Trustee for Ly Family Trust ended, but he found this very difficult at a time when the economy was slow.  He said he interviewed and was trialled by several prospective employers, but ultimately each of these were reluctant to take over sponsorship of his visa because of the financial commitment.  Evidence of several Café or Restaurant Manager jobs the applicant had applied for since March 2018 was provided to the Tribunal. The applicant told the Tribunal that this was a terrible time for him, and facing the prospect of losing his visa was very stressful. He said he did not contact the Department when his employment with his sponsor ceased.  He said he was aware the sponsor had informed the Department his employment had ceased and he was expecting his visa to be cancelled.  He said he checked his emails regularly for correspondence from the Department, but genuinely did not appreciate he had 60 days to find another sponsor. 

18. The applicant told the Tribunal he was currently on a Bridging Visa and had been granted work rights in March 2019.  He said he had managed to find some casual work to support himself after being granted work rights. He said his friends supported him, by providing food and shelter, when he was not working. 

19. The applicant told the Tribunal that he had been successful in gaining employment as a Restaurant Manager with the Coffee Club in Mount Isa, Queensland in August 2019.  

20. The applicant has not had any other difficulties in relation to his compliance with visa conditions.  There is no suggestion that there has been any difficulty in relation to his past and present conduct.  He has been cooperative with the Department and the Tribunal.

21. The applicant told the Tribunal he will suffer financial hardship if the visa is cancelled.  He has made a commitment to work for his new employer, relocating from Western Australia to Queensland.  He currently has financial commitments in Australia - he owes his friends who have helped support him (approximately $4,500) and he rents a property.  He also has a credit card debt with ANZ totalling $6,000. 

22. He told the Tribunal he would like to gain more experience in the hospitality industry in order to get a well-paid job when he returns to India.  He said it would be really hard for him to return to India now, with little experience and debt hanging over him.  He said his parents, who are aged and who supported his studies in Australia, will rely on him as their only child, for financial support when he returns to his home country.

23. The Tribunal discussed with the applicant the discretionary factors the Tribunal would consider in making its decision and all of the relevant circumstances in his case.  In assessing the evidence, the Tribunal notes that the applicant presented as a reliable witness.  It can be satisfied that it can rely on his oral evidence to make many of its findings.

24. The Tribunal has considered the applicant’s purpose for remaining in Australia.  The Tribunal has had regard to the applicant’s evidence that he originally came to Australia to further his studies in hospitality, gain experience, and then return to India to get a good job in the hospitality industry there. As discussed with the applicant at the hearing, a Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.  The purpose of the applicant’s stay in Australia, when granted his visa, was to work in the nominated position for The Trustee for Ly Family Trust.  While this purpose no longer exists, the evidence before the Tribunal is that the applicant has been employed since August 2019 on an ongoing basis as a Restaurant Manager for the Coffee Club, Mount Isa and that his new employer wants to sponsor him.  The Tribunal, on the basis of this evidence, is of the view that the applicant’s purpose of travel to and stay in Australia remains a valid one.  The Tribunal is also satisfied, on the basis of the evidence before it, that the applicant’s new employer had difficulty finding a suitable manager.  The evidence before the Tribunal indicates that the applicant has been working with the new business since August 2019 and making a valued contribution. The Tribunal gives these factors significant weight in favour of not cancelling the visa.

25. Regarding his compliance with visa conditions, it appears to the Tribunal that condition 8107 is the only visa condition for which the applicant has not complied.  The Tribunal notes that he was told by his sponsor that the business in which he worked would be sold and his job would no longer be available.  The applicant’s evidence, which is accepted, was that he immediately started looking for employment in the same occupation.  On the basis of the evidence before it, as well as his current employment with a business willing to sponsor him in the same occupation, the Tribunal is satisfied that the applicant did everything he could to secure sponsorship in skilled employment as soon as his sponsored employment with The Trustee for Ly Family Trust ceased.  While it accepts that he ceased employment with his former sponsor in April 2018 for a period exceeding 60 days, it is satisfied he took every action he could to avoid breaching condition 8107.  The Tribunal therefore gives this factor little weight towards his visa remaining cancelled.

26. The Tribunal accepts that the applicant will suffer some hardship if his visa remains cancelled and he is required to return to India.  The Tribunal is satisfied that the applicant incurred some debt while he was looking for suitable employment and that he currently has a credit card debt.  It also accepts that he would suffer some emotional hardship if the visa is cancelled, because he has worked hard to secure sponsored employment, and he would feel as if he has failed if he returns to India without the ability to obtain a good job to support his family.  The Tribunal has also considered that the applicant’s new, proposed sponsor – a business located in regional Queensland - would also suffer some hardship if the visa was cancelled and it had to find another Restaurant Manager. The Tribunal gives this factor some weight in favour of not cancelling the visa.

27. According to the delegate’s decision record, there is no information before the delegate to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department.   The Tribunal gives this little weight towards the visa not being cancelled.

28. The Tribunal has considered the circumstances in which the ground for cancellation arose. It is satisfied on the basis of the applicant’s oral and written evidence that he was informed about a month before his employment ceased, that his sponsor would be closing the business in which he worked and his position would therefore cease.  It is satisfied that the circumstances in which the ground for cancellation arose were outside his control.  It is also satisfied that the applicant took every action to try and avoid the ground for cancellation arising.  He was mindful that he needed to be in sponsored skilled employment and ultimately he was successful in securing a position that is intended to lead to such.  In the circumstances of this case, the Tribunal gives this factor some weight in favour of the visa not being cancelled

29. The Tribunal is mindful, as set out in the delegate’s decision, that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives these consequences some limited weight in favour of not cancelling the visa. 

30. There is nothing to suggest, and the applicant does not claim, that any international obligations would be breached as a result of the cancellation. The Tribunal gives no weight to this consideration.

31. There is no evidence before the Tribunal that there would be consequential cancellations under s.140.

32. The Tribunal recognises that the cancellation of a visa is a significant matter and has weighed the evidence before it, including evidence that was not available to the delegate at that time of decision. The Tribunal considers that the discretionary factors above indicate that the applicant, in the circumstances of this case, should be given an opportunity to remain in Australia to engage in sponsored skilled employment.

33. The correct and preferable decision therefore is not to cancel the visa. The Tribunal, in reaching this decision, notes that the applicant’s continued employment with the Coffee Club, Mount Isa, and his stay in Australia, will be consequential upon the Department’s decision in relation to the proposed nomination application and subsequent visa application.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Nicola Findson
    Member