Jaiswal (Migration)

[2019] AATA 4128

Jaiswal (Migration) [2019] AATA 4128 (10 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ayush Kumar Jaiswal

CASE NUMBER:  1907060

HOME AFFAIRS REFERENCE(S):           BCC2018/6051504

MEMBER:Bridget Cullen

DATE:10 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 10 September 2019 at 4:53pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment over 90 days – employment ended due to in incarceration – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Condition 8107, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 March 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 failed to comply with visa condition 8107(3)(b) of his Subclass 457 visa. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 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 appeared before the Tribunal on 10 September 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 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 attached to the applicant's visa. Specifically, subclause 8107(3) applies because the Department granted the applicant a subclass 457 visa on the basis that the applicant met the requirements of subclause 457.223(4).

8. Relevantly, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer. As outlined, condition 8107(3)(b) required that the applicant not cease employment for more than 90 consecutive days.

9. At the hearing, the applicant confirmed that he ceased working for his sponsor, NS Beverages Pty Ltd on 18 June 2018.  The applicant gave evidence that the reason he could no longer work for his sponsor is because he was incarcerated.  The applicant told the Tribunal that he was released on 5 September 2019, and confirmed that he did not work for his sponsor in the approximate 15-month period after he ceased work for the sponsor on 18 June 2018.

10. As such, 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. The circumstances that gave rise to the cancellation as put forward by the applicant are considered below.

    Consideration of discretion

11. 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 ‘General visa cancellation powers’.

12. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. Specifically, the Courts have held that the Department’s guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in the Department’s Procedures Advice Manual cannot go beyond the wording of the legislation, even where they are favourable to an applicant.

13. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant and the oral evidence from the applicant and his former employer at the hearing.

14. The policy outlines that the following matters should be taken into account, if relevant, when deciding whether to cancel a visa.

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

15. At the hearing, the applicant gave evidence that he arrived in Australia in to work in the occupation of Café or Restaurant Manager (ANZSCO 141111) for his sponsor, NS Beverages Pty Ltd.  He has been living in Australia since that time.

16. The applicant was issued a Subclass 457 visa on 27 April 2018, with a stay period until 27 April 2020. At the hearing, the applicant told the Tribunal that he did not have a sponsor. He was released from jail approximately 5-days prior to hearing.

17. As a result, the Tribunal finds that the applicant does not have another Australian employer willing or able to sponsor him under the Subclass 457 scheme. Accordingly, given this and the fact that the applicant ceased his employment with NS Beverages Pty Ltd in June 2018, the Tribunal finds that the purpose for the grant of the Subclass 457 visa to the applicant no longer exists.

18. While the applicant outlined his desire to remain in Australia, he did not outline any compelling need to remain in Australia, except that his family, back home in India, are unaware that he has been in jail.

19. The Tribunal finds that this factor does not weigh against exercising the discretion to cancel the Subclass 457 visa.

    The extent of compliance with visa conditions and the visa holder's past and present behaviour towards the Department

20. The Tribunal accepts that the applicant has not previously breached any visa conditions. There is also no evidence to suggest that the applicant has a history of difficulties, or lack of co-operation, with the Department.

21. The Tribunal considers that this weighs against exercising the discretion to cancel.

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

22. The applicant does not have any family in Australia.  He was released from jail on 5 September 2019. The applicant is embarrassed to return home, where his family is unaware of the troubles he has had whilst in Australia.  The applicant is not employed at present.

23. While it may be upsetting for the applicant to depart Australia, the Tribunal finds that the cancellation of the Subclass 457 visa will not result in any significant hardship to the applicant. The Tribunal notes that the applicant’s family is in India.

24. The Tribunal further notes that the applicant held a temporary visa with no guarantee that he could remain in Australia on the expiration of the visa.

25. These factors do not weigh against exercising the discretion to cancel the visa.

    The circumstances in which the ground for cancellation arose

26. The policy suggests the Tribunal should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

27. At the hearing, the applicant gave evidence that his employment came to an end when he was placed in custody. The applicant told the Tribunal that he plead guilty to the offence of money laundering.  The charge involved the quantum of $350,000.00 having been taken from Office Works.  The applicant was sentenced to a 4-year suspended sentence.

28. Although the applicant told the Tribunal that he fell prey to a conspiracy for which he was an unwitting victim, he acknowledges that he plead guilty and did not contest the charges.  Consequentially, the Tribunal considers that the applicant’s circumstances, in engaging in criminal conduct while in Australia, are the reason his employment came to an end. 

29. The Tribunal considers the applicant’s criminal conduct to be a factor that he has control over. Had the applicant not engaged in such conduct, he would not have been incarcerated, and therefore unable to attend work.

30. The applicant's non-compliance with condition 8107, occasioned by his criminal conduct and subsequent arrest, is substantial.  As at the time of decision, the applicant has not been employed with his sponsoring employer for approximately 15-months.  The Tribunal considers that this weighs very strongly in favour of exercising the discretion to cancel the visa.

    Whether there are mandatory legal consequences to a cancellation decision

31. The Tribunal acknowledges that upon the cancellation of his visa, the applicant would become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s198 if he does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of his visa.

32. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116. The Tribunal gives this a neutral amount of weight, neither in favour nor against exercising the discretion to cancel.

    Australia's international obligations

33. In considering whether to exercise its discretion to cancel the applicant's visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia's responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

34. There is nothing in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Therefore, the Tribunal is satisfied that there is little in these matters to weigh against exercising the discretion to cancel.

    Any other relevant matters

35. At the hearing, the Tribunal gave the applicant the opportunity to raise any matters he wished in relation to his circumstances.  The applicant wants to rebuild his life, and does not want to return home to shame. 

36. Based on the evidence before it and taking into account all the relevant circumstances, on balance, the Tribunal finds that the reasons for exercising the discretion not to cancel the applicant's Subclass 457 visa do not outweigh the reasons to cancel the visa.

    DECISION

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

    Bridget Cullen
    Member