Harjeet (Migration)

[2017] AATA 2511

Harjeet (Migration) [2017] AATA 2511 (27 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harjeet Harjeet

CASE NUMBER:  1704552

DIBP REFERENCE(S):  BCC2017/112831

MEMBER:Catherine Carney-Orsborn

DATE:27 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 September 2017 at 2:58pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Ceased working for sponsor over one year – Not informed authorities of alleged mistreatment – No evidence of another nomination approved

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 February 2017 made by a delegate of the Minister for Immigration 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 commence employment for which he was sponsored within 90 days of the visa grant. 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. On 21 September 2017 the applicant requested that the hearing set down for 27 September be postponed.  The applicant provided a medical certificate which stated the applicant was affected by a medical condition and was unable to work from 19 September 2017 until 22 September.  The Tribunal declined to postpone the hearing as the medical certificate stated he was affected by his medical condition until 22 September 2017 and the hearing was on the 27 September 2017.  The Tribunal offered to take the applicant’s evidence via telephone.  The applicant declined this offer and elected to attend the hearing on the 27 September 2017 in person.

4. The applicant appeared before the Tribunal on 27 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. 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

6. 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?

7. 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. This condition requires the applicant to commence work with his sponsor within 90 days after the grant of the visa.

8. The applicant’s 457 visa was granted on the 10 May 2016.  The applicant states that he had started working with the sponsor while he was on a student visa.  He claims that he was in employment with the sponsor until May 2016.  The sponsor informed the department that his employment ceased in March 2016.  

9. The applicant’s evidence is that he was never told by his sponsor employment was terminated.  He claims he was not paid and he tried to contact the sponsor.  He provided a print out of SMS messages he claims he sent to the sponsor.  He claims he was treated unfairly and he never received any payment.    

10. He stated that he then tried to seek different employment when he received no response from his efforts to contact the sponsor.

11. The Tribunal is satisfied that the applicant ceased working for the sponsor over a year ago. The Tribunal after considering the evidence is also satisfied that after the visa was granted in May 2016 he did not commence working after the grant of the visa.  The applicant asserts he worked until May 2016 however was not paid. The Tribunal does not accept this as the copies of the SMS messages he provided show that in May 2016 he was sending messages asking a person called “Francis” to give him a job and to meet him.

12. 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

13. 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’.

14. The purpose of the applicant stay in Australia is to work.  He stated that he sees the work visa as a way to a permanent future in Australia.  He has not worked for his sponsor since before May 2016.

15. The Tribunal asked the applicant to outline what hardship may be caused by the cancellation.  He stated that he has been working towards a future in Australia and a cancellation will set back his future plans.  The Tribunal does not place weight on this as he is a young single man with good English skills and an education.  He will be able to apply for other visas offshore.

16. The applicant claims that he was dealt with unfairly by the sponsor.  He claims that he was not paid for the work he did.  He further claims that he was not told he was terminated.  He provided copies of messages he claims he sent to the employer asking for his employment.

17. The Tribunal asked the applicant if he reported the mistreatment to the authorities in Australia including Fair Work Commission and the Department of Immigration.  He replied that he did not because these issues were between him and the sponsor.

18. The Tribunal pointed out that he had not informed the Department that he was not working for the sponsor.  He said he did not know he had to tell them.

19. The Tribunal does not accept that he did not know he had to keep the Department informed if he was not working as per a condition of his visa.  He claimed that he started looking for work and in October 2016 an application was made by another sponsor to sponsor him for a 187 visa.  The Tribunal asked if he had any documents to show this as there was nothing before the Tribunal.

20. The applicant showed the Tribunal an email on his mobile phone which he stated was an acknowledgment of an application to sponsor him.  The Tribunal noted that the application was dated October 2016. The Tribunal asked what the outcome of that application was.  The applicant was unable to show any outcome.  On the evidence before it the Tribunal considers that the outcome of any application which has not been determined after a year is speculative.

21. The present issue before the Tribunal is whether the applicant’s 457 visa should be cancelled.  The applicant has not been working for the sponsor for well over one year.  He could not provide any evidence that another nomination had been approved.

22. He claimed he would suffer hardship if his visa was cancelled however if he has as he claimed another application still being considered he could apply for a bridging visa.  He could also go offshore to apply for another visa.

23. There are no dependents on the applicant’s visa.  At hearing he stated his only family were his parents in India.  There is nothing to indicate that any harm would be suffered by the applicant if he returned to his home country.  No international obligations would be breached by any cancellation.

24. The applicant claims that his termination was beyond his control.  He claims he was not paid and not given due process.  The Tribunal only has the applicant’s assertions as to what happened with his sponsor.  The applicant said he had not informed any authorities of his alleged mistreatment.  He did not inform the Department that he was not working.  He claimed he did not know and it was an issue between him and the sponsor. 

25. The Tribunal after considering all the above does not accept that the circumstances of the termination were beyond his control.  The applicant did not move to correct the situation and inform the appropriate authorities.  It has nearly a year and a half since he stopped employment and he has been in breach of his visa condition. 

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

    DECISION

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

    Catherine Carney-Orsborn
    Member