JAISWAL (Migration)

[2019] AATA 5485

JAISWAL (Migration) [2019] AATA 5485 (28 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANTOSH KUMAR JAISWAL

CASE NUMBER:  1920130

HOME AFFAIRS REFERENCE(S):          BCC2019/514597

MEMBER:Stavros Georgiadis

DATE:28 November 2019

PLACE OF DECISION:  Adelaide

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 28 November 2019 at 1:31pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – intention and commitment to work in nominated skilled occupation – employment terminated by head operator – beyond applicant's control – new employer prepared to sponsor applicant – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 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 22 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 Subclass 457 visa and the delegate considered the visa should be cancelled, having regard to all the relevant circumstances.

3. The applicant appeared before the Tribunal on 27 November 2019 to give evidence and present arguments.

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

5. 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

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?

   s.116(1)(b) - non-compliance with conditions

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 is attached to the applicant’s visa. This condition requires that the last substantive visa held by the holder, being a Subclass 457 visa, is working for a standard business sponsor at the time of approval as a standard business sponsor, and amongst other things, “must work only in the occupation listed in the most recently approved nomination for the holder, cl.8107(3)(a)(i). Further, cl.8107(3)(b) provides that “If the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days; ...” The delegate made the decision on the basis of a breach under cl.8107(3)(b).

8. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8107(3)(b) of the visa as he was found to have ceased employment with his sponsor employer of the most recently approved nomination for the visa, VENSRI PTY LTD, for more than 60 consecutive days. The nomination was approved for the nominated occupation of Café or Restaurant Manager (ANZSCO 141111) in respect of the applicant.

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

10. The Tribunal finds that the applicant’s last substantive visa held was a (Class UC) Subclass 457 visa granted on 9 December 2016 and valid for 4 years. The applicant commenced working for his employer sponsor, VENSRI PTY LTD on 22 May 2016 as a Café or Restaurant Manager, initially on a part time basis of 20 hours per week. The employer is a fuel and service station roadhouse with a café/ restaurant and is located in Cobar in regional NSW. The employer’s most recently approved nomination in respect of the applicant was approved on 9 December 2016 at which time the applicant increased to full time ongoing work in that occupation. Therefore, the Tribunal finds that the last substantive visa held by the applicant was a Subclass 457 visa granted on the basis that he met the requirements of subclause 457.223(2) or (4) and was working for a standard business sponsor at the material time of approval.

11. The first issue for the Tribunal to determine is whether the applicant has complied with condition 8107 of his visa. The oral evidence provided at the hearing is consistent with the delegate’s observations that the Department received information from VENSRI PTY LTD that the applicant ceased employment with the sponsor with effect from 25 October 2018. He told the Tribunal that following a trip to India to visit his ill grandfather, he discovered on his return to work that his sponsor employer (a franchise store) had been taken over by Caltex as head operator who was terminating the contracts of all sponsored employees.  The applicant told the Tribunal that 25 October 2018 was the last day he worked for the sponsor and the last day for which he received payment of wages. He has not worked for any sponsor in a skilled occupation since that time. The applicant’s evidence, when asked, is that he did not receive any notice in lieu of termination or any severance payments from his discontinued employment with VENSRI PTY LTD. 

    Notice of Intention to Consider Cancellation 

12. On 12 April 2019, the applicant was provided with a written Notice of Intention to Consider Cancellation (NOICC) setting out the grounds and reasons for the Department’s intention. On 1 May 2019 the applicant provided a response to the NOICC with his views in written submissions and comments which the Tribunal has considered prior to making its decision. Aspects of the applicant’s response to the NOICC are discussed where, relevant below.

13. The applicant confirmed at the hearing that a new nomination application was lodged on 24 June 2019 by another sponsor, PRASI PTY LTD for him to work in the position of Cafe or Restaurant Manager. However this nomination application was refused by the Department on 28 June 2019. The applicant told the Tribunal that he did not know the reason for this refusal. The applicant conceded when asked, that he has not since worked with any other sponsor employer under any approved nomination, although there is presently a pending application for such (discussed below). The Tribunal accepts from this that since the time he ceased employment with the sponsor on 25 October 2018, the applicant has not had any nomination approved by the Department for work with any other sponsor in the nominated skilled occupation.  

14. Based on the evidence discussed above, the Tribunal finds that the period during which the applicant ceased employment has exceed 60 consecutive days, in breach of condition 8107, specifically 8107(3)(b), attached to his Subclass 457 visa.

15. 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

16. 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’.

17. In his response to the NOICC the applicant provided the following outline of arguments as to why his visa should not be cancelled: 

    · On 25 August 2018, he travelled to India to visit his ill grandfather. The flight itinerary of his trip to India covers the period 25 August 2018 to 18 September 2018 consistent with the Department’s Movement Details relating to his absence from Australia. While on this visit, his grandfather passed away due to illness.

    · When he returned to work on 20 September 2018 with VENSRI PTY LTD, he discovered that control of the employer’s operations had been taken over by Caltex group who was in the process of terminating the contracts of sponsored staff.   

    · He requested additional time to find a new sponsor, as he received offers from similar employers who were unable to find appropriate staff. 

    · He states that he has never been in trouble with the law in Australia. He states that he has always abided by his visa conditions, but unknowingly may have made an ‘error’. 

    · He states that if his visa is cancelled, he will lose his livelihood and would not be able to support his family in India. 

    · He has always behaved well towards the Department and has responded to the Department in a timely manner when required. 

18. In considering whether to cancel the visa, the Tribunal has taken into account the information received from the applicant in response to the NOICC, relevant legislation under the Act and Regulations and the PAM3 guidelines set out in Procedural Instruction General visa cancellation powers (s109, s116, s128, s134B and s140) regarding visa cancellation.

    The purpose of the visa holder’s travel to and stay in Australia

19. The Tribunal had considered the purpose of the applicant’s travel and stay in Australia is to fill the skill shortage for in demand positions including Café or Restaurant Manager.  The applicant was granted the Temporary Work (Skilled) (subclass 457) visa on 9 December 2016 for 4 years for the purpose of employment with an approved sponsor in that skilled occupation. The Department was notified that he ceased employment with the sponsor on 25 October 2018 and as the applicant has not had a nomination application approved by the Department to work for a sponsor in a skilled occupation exceeding 60 days, he was in breach of condition 8107.

20. The Tribunal places some weight on the fact that the applicant secured and stayed with that skilled occupation until his employment with the sponsor employer was discontinued by the Caltex group.  Further the evidence is that the applicant attempted to secure work in the same nominated occupation with a new sponsor and indeed secured such work as Café or Restaurant Manager, but the nomination by PRASI PTY LTD for him to work that position was ultimately not successful. That nomination application lodged on 24 June 2019 by PRASI PTY LTD relating to the applicant was refused on 28 June 2019.

21. The Tribunal considers that the applicant has consistently demonstrated an intention and commitment to stay in work in the nominated skilled occupation of Café or Restaurant Manager in line with the purpose of his visa and this adds some weight in favour of not cancelling the visa.

    The extent of compliance with visa conditions

22. The visa holder’s subclass 457 visa was granted subject to 8107. Aside from the present circumstances discussed where condition 8107 was contravened, there is no suggestion of any other non-compliance by the applicant with previous visa conditions noting he has held a Student 573 visa whilst undertaking a Master degree in professional accounting and also several Bridging visas pending the outcome of this review. The Tribunal notes also the delegate’s acknowledgement there is no information to suggest the applicant has been non-compliant with any other condition attached to his visas in the past.

23. The Tribunal acknowledges and takes into consideration that it is in excess of the 60 day period allowed under condition 8107(3)(b) for a visa holder to secure a nomination with another approved sponsor. The Tribunal notes however, that the non-compliance with the visa condition resulted from discontinuance of the applicant’s employment arising from factors outside of his control - due to the sponsor being taken over by the Caltex group who terminated contracts of sponsored employees. Therefore, I give the applicant’s aforementioned compliance with visa conditions in the past some weight in favour of not cancelling the visa.  

    The degree of hardship that may be caused to the visa holder and any family members

24. The applicant explained to the Tribunal that he supports his mother in India financially as she suffers from a hip necrosis condition and she cannot afford medical surgical intervention for this. The applicant’s sister (and her husband) live with the mother in the same household to provide day-to-day care support and to assist her coping with this condition. The applicant said he has been sending money to his mother and sister in India as they are dependent on him for such support.  He claims that if he is required to return to India, these family members who rely on him financially will be greatly adversely impacted.  When questioned further, the applicant explained that his sister and mother are not employed and have not worked outside the home in the past. The Tribunal accepts that in these circumstances, there will be a significant degree of hardship that will result to the visa holder and his family members discussed should the visa be cancelled.

25. The Tribunal notes the delegate’s recognition also that if the applicant’s visa is cancelled, he will no longer be able to be nominated by an approved sponsor to work in a skilled occupation (presently pending) which may result in financial hardship. The Tribunal considers that visa cancellation may cause the applicant emotional hardship noting he has spent some 5 years in Australia to date. Therefore, the Tribunal gives the hardship factor some weight in favour of not cancelling the visa. 

    The circumstances in which the ground for cancellation arose

26. As discussed, the applicant’s visa was granted requiring compliance with condition 8107. The Department was advised by the sponsor that the applicant ceased employment with effect from 25 October 2018. The applicant acknowledges that his employment with the sponsor ended at that time and that it has been in excess of 60 consecutive days without any sponsored employment. The applicant reiterates in his NOICC response that his employment was terminated due to the fact that the sponsor was taken over by Caltex and that this was something entirely outside of his control, which the Tribunal agrees is the case.  On this point, the Tribunal also notes the delegate considered the cessation of the applicant’s employment may have been due to factors outside his control. The delegate also acknowledged that this was at a time when the applicant was still affected by his grandfather’s passing.

27. The Tribunal has taken into consideration that a new nomination application was lodged on 24 June 2019 by PRASI PTY LTD in respect of the applicant.  However this application was refused on 28 June 2019. In his response dated 1 May 2019, the applicant requested additional time to secure a further sponsor. The additional time has allowed the applicant to seek nomination by a new potential sponsor employer, the Office Café located in Port Augusta in regional South Australia. The information provided to the Tribunal (following the hearing) is that a fresh nomination application is being lodged in respect of the applicant for a Café or Restaurant Manager position with that employer. The applicant’s response is that the owner of the business, Mr Baldev Singh, who is a Councilor in the Port Augusta (SA) council and also managing a small transport company,  has confirmed that “he has checked the appellant’s relevant skills and expertise in relation to the nominated position of Café/Restaurant Manager and is fully satisfied.”

28. The Tribunal accepts that the new employer, Office Café, has instructed the applicant’s representative to proceed with the preparation and lodgement of a business sponsorship and nomination application relating to the applicant. He has expressed concerns about what would happen if the applicant’s 457 visa is not revoked and his current work commitment at the Office Café be terminated if he has to depart Australia (having no substantive visa and not being able to lodge an on-shore visa application to remain in Australia and continue to work). The submission is “the current costs associated with the TSS nomination is a discouraging factor (the non-refundable SAF training levy in particular) for current nominators.”  The Tribunal notes that regardless, the new employer is prepared to proceed with the nomination application.

29. The Tribunal has also had regard to the fact that the applicant has not had a nomination application approved to work for a sponsor in a skilled occupation since his employment terminated on 25 October 2018 with VENSRI PTY LTD. The Tribunal accepts however, that his non-compliance with condition 8107(3)(b) was initiated by the discontinuance of his employment (exceeding 60 days) with that sponsor by actions that were outside of the applicant’s control. Indeed the applicant was overseas attending to an ill grandparent (who passed away at that time), when these matters took place. Therefore, although this established a ground for cancellation under s116(1)(b) of the Act, the applicant’s breach of condition 8107 was not under his hand and this, together with the continued action by the applicant to search for a new sponsor in the same nominated occupation, weighs in favour of not cancelling the visa.

    The visa holder’s past and present behaviour towards the Department

30. The Tribunal accepts the applicant’s evidence and submissions that he has never been in conflict with the law authorities in Australia (or India for that matter).  He emphasises that he has always abided by his visa conditions, although he may have ‘unknowingly’ made an ‘error’ in reference to his employment termination. The Tribunal accepts the submission that he has otherwise behaved appropriately towards the Department and responded in a timely manner when required such as the NOICC response.  As the delegate observed: “There is no information before me to suggest that the visa holder has been uncooperative with the Department or departmental staff.”  The Tribunal considers this weights against cancelling the visa. 

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

31. The applicant told the Tribunal that he is not partnered and does not have any children or other dependants in Australia. The Tribunal accepts that the circumstances of this case are such that no other person’s visa would be consequentially cancelled under s140 of the Act. This does not add any weight against a decision to cancel the visa, on this point. 

    Legal consequences of a decision to cancel the visa

32. The Tribunal has taken into consideration that should the visa be cancelled, the applicant will become an unlawful non-citizen liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not depart Australia voluntarily. However, detention or forced removal may be avoided by agreeing to depart. The applicant would also be subject to s.48 of the Act, which would serve to limit his options should he wish to apply in future for further visas while in Australia. The Tribunal gives this consideration little weight against cancelling the visa. 

    Australia’s international obligations

33. The applicant has been able to freely travel to and from Australia and India in the recent past without hindrance such as the occasion of his visit to his ill grandfather. There is no information before the Tribunal to suggest that the applicant has dependants in Australia. There is also no information before the Tribunal to suggest that cancelling the visa would lead to a breach of Australia’s non-refoulement obligations relating to protection or complementary protection. Accordingly, for this consideration the Tribunal gives no weight for or against cancelling the visa. 

    Any other relevant matters

1. The Tribunal was told that the spouse of the applicant’s new employer is pregnant in her first trimester and does not plan to return to the position of managing the Café / Restaurant in Port Augusta.  The applicant submits that there is a genuine need for him to take up the role of the nominated occupation as a paid employee with the Office Café as he has work rights attached to his Bridging visa WE-050 which were readily granted to him. Should his visa be cancelled then the submission is that this opportunity for that business would be lost or disadvantaged in securing of skilled labour shortage in the area.  The Tribunal is not aware of any other relevant matters. The Tribunal considers this adds some weight against cancelling the visa for this consideration. 

   CONCLUSION

2. After considering all the available information, I am satisfied that the grounds for not cancelling the visa outweigh the reasons to cancel the visa.

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

   DECISION

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

   Stavros Georgiadis
   Member