Harpreet Singh (Migration)

[2019] AATA 6531

Harpreet Singh (Migration) [2019] AATA 6531 (20 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Harpreet Singh

CASE NUMBER:  1920322

HOME AFFAIRS REFERENCE(S):          BCC2019/1636368

MEMBER:Amanda Mendes Da Costa

DATE:20 November 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 20 November 2019 at 10:41am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 60 days – occupation of Cook – applicant awaiting contract with same employer’s new business – business sold – significant financial hardship – decision under review affirmed          

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 19 July 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 had not complied with a condition of his visa. 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 on15 November 2019 to give evidence and present arguments.  

4. The applicant was represented in relation to the review by his registered migration agent although the agent did not attend the hearing.  The applicant told the Tribunal that he did not want an adjournment to enable his agent to attend the hearing on another date.

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 is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(b) requires that if a visa holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days.

8. The standard business sponsor who nominated the applicant in the most recently approved nomination his visa was Dhoom Foods Pty Ltd (the sponsor) whose nomination was approved on 11 September 2018.

9. The applicant was nominated to work in the position of Cook (Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code 351411) for the sponsor.

10. On 16 October 2018 the Department received written notification from the sponsor, advising that the applicant ceased employment with it effective from 24 September 2018.

11. Neither the sponsor nor the applicant informed the Department that the applicant had returned to work for the sponsor, or an associated entity, within 60 consecutive days of ceasing employment.

12. The applicant did not have a new Temporary Business Entry or Temporary Skill Shortage nomination application approved for him within 60 consecutive days of ceasing his employment with the sponsor.

13. On 4 June 2019 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his visa.  The applicant was invited to respond the NOICC in writing.

14. On 18 June 2019 the applicant sent the Department a written response to the NOICC in which he did not dispute that there were grounds for the cancellation of his visa.  He stated that he was a law-abiding citizen and there was no adverse information against him either in India or Australia.  He said that the circumstances leading to his non-compliance with condition 8107(3) were beyond his control but he had not breached any condition of his visa and was waiting to start work for his approved employer when it set up a new business.

15. The applicant told the Department that due to unforeseen circumstances, the sponsor sold  the restaurant in which he was employed and he was waiting to recommence employment with the sponsor in a new business.  He had been waiting for this since the restaurant closed and was aware that he could only work for an approved sponsor.

16. He said that his family in India relied on his income for support and that if his visa was cancelled he and his family would suffer significant financial hardship.

17. The applicant told the Tribunal that he came to Australia in 2008 for the purpose of study.  After completing a Certificate III in Community Welfare, the applicant undertook further study and graduated in 2015 with Certificates III and IV in Hospitality.

18. In February 2016 the applicant commenced employment as a Cook with the sponsor in its Italian restaurant, Lindos, located in Ringwood.  The applicant said that he liked working there and had intended to continue with his employment.

19. In September 2018 the applicant’s employment ceased when his employer advised him that he had sold the restaurant.  He assured the applicant that he intended to purchase another restaurant and would re-employ the applicant in that new business.  The applicant did not seek further employment as he was waiting for the sponsor to open its new restaurant.

20. The sponsor continued to telephone and sends text messages to the applicant and met him on one occasion at a restaurant in Doncaster.  During these conversations and text messages, the sponsor advised him that he would re-employ the applicant when its new restaurant was operating.  The phone calls and messages ceased in September 2019 and the applicant has not been contacted by the sponsor since then.

21. In the past two months the applicant has been seeking employment with other employers and has a job offer for the position of Cook in a Thai restaurant, commencing February 2020.

22. During his employment with the sponsor the applicant paid income tax and lodged yearly taxation returns.  He did not send money to his family in India and saved money whilst in Australia.

23. The applicant told the Tribunal that he had been financially supported since his visa was cancelled from his savings and by his family in India.

24. He said that he had not made thought about what he would do if his visa was cancelled and he returned to India.  He just wanted to stay in Australia and obtain further employment. Although he could return to live with his parents in India, he would prefer to live independently of them.

25. The Tribunal notes that the applicant held a previous 457 visa sponsored by the sponsor from 11 February 2016 to 11 August 2017.  He has been in Australia since 27 February 2016 and held his current 457 visa for almost 10 months.

26. The Tribunal accepts that the applicant’s previous employment with the sponsor ceased on 24 September 2018 and the applicant has not returned to that employment.  As the applicant has not remained employed with either his current sponsor or another approved sponsor in his nominated occupation for over 12 months at the time of this decision, the Tribunal is satisfied that the applicant has not complied with condition 8107(3)(b) of his visa.

27. 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 visa should be cancelled.

    Consideration of discretion

28. 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’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

29. The applicant was granted a Temporary Work (Skilled) subclass 457 Temporary Work (Skilled) visa for the purpose of being able to work in Australia and in a skilled occupation which could not be filled from within the Australian workforce.

30. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa terminated the applicant’s employment on 24 September 2018.  Therefore the purpose for which the visa was granted to him ended on 23 November 2018, which was 60 consecutive days after the applicant ceased employment with the sponsor.  Although the applicant waited over 12 months for the sponsor to re-employ him, this did not occur and the applicant is currently unemployed.

    The extent of compliance with visa conditions

31. The Tribunal is satisfied that the applicant complied with the conditions attached to his previous subclass 457 visa although he has not complied with condition 8107(3)(b) of his current visa.

32. On balance, this consideration weighs in support of cancellation of the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

33. The Tribunal accepts that the applicant would suffer a degree of financial hardship in returning to India where he would be required to obtain employment and establish a home.  The Tribunal acknowledges that the applicant has been in Australia for over 10 years and has friends and social activities here.  It is satisfied that he would also suffer emotional hardship if he was required to return to India after spending a substantial period in Australia.

34. Apart from a cousin, the applicant has no family members in Australia.

35. Balanced against that evidence, the Tribunal considers that the applicant would have the support of his parents if he returned to India and that he has the qualifications and skills necessary to gain further employment there.

36. On balance, this consideration weighs in support of cancellation of the visa.

    Circumstances in which the ground of cancellation arose

37. The grounds of cancellation arose when the applicant ceased employment for more than 60 consecutive days as required by condition 8107(3)(b) attached to his visa.  These grounds have arisen since 23 November 2018.  The Tribunal accepts that the grounds for cancellation arose due to the actions of the sponsor in terminating the applicant’s employment when it sold its business.  The Tribunal further accepts that although the applicant did not voluntarily cease employment with the sponsor and had intended to continue in that employment, he did fail to comply with condition 8107(3)(b) of his visa.

38. This consideration weighs in support of cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

39. There is no adverse information regarding the applicant’s past and present behaviour towards the Department and the Tribunal notes that the applicant responded to the NOICC in a timely manner.

40. This consideration weighs against the cancellation of the visa.

    Whether there would be consequential cancellations under s.140

41. The applicant is a single man with no children.  Based on this evidence and information in the Departmental file, the Tribunal is satisfied that no other person inside or outside Australia holds a visa because the applicant holds a subclass 457 visa.  Accordingly the Tribunal finds that the cancellation of the applicant’s visa will not result in the consequential cancellation under s.140 of the Act, of the visa of any other person.

42. This consideration is neutral and weighs neither in support of nor against the cancellation of the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

43. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely because as an Indian citizen he will be able to return to India.  The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications.  Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.166 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.

44. This consideration weighs against cancellation of the visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

45. The applicant is a national of India.  He does not have any children and has not claimed protection or indicated that he would face harm if he returned to that country.

46. There is no evidence that Australia would be in breach of its international obligations, including non-refoulement and the best interests of children as a primary consideration as a result of the visa being cancelled.

47. This consideration is neutral and weighs neither in support of nor against the cancellation of the visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

48. The applicant’s visa is not a permanent one and the evidence before the Tribunal shows that the applicant’s previous subclass 457 visa was also not a permanent one. 

49. This consideration is neutral and weighs neither in support of nor against the cancellation of the visa.

    Any other relevant matters

50. The Tribunal accepts that the applicant has made a contribution to the Australian economy through his employment and the payment of income tax.

51. This consideration weighs against the cancellation of the visa.

    FINDING

52. Considering the circumstances as a whole, and particularly the fact that the purpose for which the sponsor nominated the applicant for the visa has ceased and the applicant has not obtained a new Temporary Business Entry or Temporary Skill Shortage nomination application approved in relation to any other sponsor, the Tribunal concludes that the visa should be  cancelled

    DECISION

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

    Amanda Mendes Da Costa
    Member