Jatinderbir Singh (Migration)

Jatinderbir Singh (Migration) [2019] AATA 3007 (13 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jatinderbir Singh
CASE NUMBER:  1900289
HOME AFFAIRS REFERENCE(S):          BCC2018/4214322
MEMBERS:Bridget Cullen (Presiding)

Jens Streit
DATE:13 May 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 13 May 2019 at 5:10pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment with sponsor for a period exceeding 90 consecutive days – sponsor’s business ceased trading – not found another sponsor – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), condition 8107(3)(b)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 3 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).
The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had not complied with the requirements of visa condition 8107(3)(b). The applicant was required to work in the occupation listed in the most recently approved nomination. The Department of Home Affairs (the Department) became aware that after a site visit conducted on 23 August 2018, the applicant’s sponsor had ceased trading in March 2018. The Department received notification from the applicant’s sponsor that the sponsor’s business ceased trading in March 2018 and that the applicant ceased employment with the sponsor in March 2018.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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
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) of the Act. 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?
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 was attached to the applicant’s visa. The delegate considered that the applicant had not complied with the requirements of visa condition 8107(3)(b). An extract of Visa Condition 8107 is attached at the bottom of this decision.
The applicant has provided the Tribunal with a copy of the delegate’s decision record in conjunction with the application for review. The decision record reflects that the applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa to work in the occupation of Restaurant Manager for sponsor, The Trustee for Sutlej Investments Trust trading as Singh’s Curry Palace, on 20 August 2015.
The evidence before the Tribunal reflects that as a consequence of a site visit to the sponsor’s business on 23 August 2018, the Department became aware the applicant’s sponsor had ceased trading in March 2018. Subsequently, the Department received notification from the applicant’s sponsor that the sponsor’s business ceased trading in March 2018, and that the applicant ceased employment with the sponsor in March 2018.
Evidence before the Tribunal reflects that in response to the Department’s Notification of Intention to Consideration Cancellation dated 4 December 2018, the applicant informed the Department to the effect that he took two months leave from working for his sponsor from 1 July 2018 to 31 August 2018, due to his family visiting him. The applicant asserted that he had no knowledge about what was happening with the sponsor’s business. The applicant informed the Department that he was looking to get a new job.
The applicant was afforded an opportunity to respond to the information contained in the Department’s file, which reflected that his sponsor ceased trading in March 2018. The applicant gave evidence that he regularly went to work in the restaurant.
The applicant asserted that he was working at Singh’s Curry Palace until he received the email notification from the Department regarding his visa.
The applicant provided documentary evidence to the Tribunal in the form of:
·     Individual tax return for 2018;
·     Individual tax return for 2017;
·     Individual tax return for 2016;
·     Notice of tax assessment for year ended June 2016;
·     PAYG summary 01/09/2015 to 30/06/2016;
·     PAYG summary 01/07/2016 to 30/06/2017;
·     PAYG summary 01/07/2017 to 30/06/2018; and
·     Letter of reference from Singh’s Curry Palace undated.
The applicant gave evidence that his sponsor paid him in cash.
The applicant has provided the Tribunal with an undated letter of reference from Singh’s Curry Palace, which contains the subject heading ‘To Whom it May Concern’. The letter states that the applicant ‘commenced his work with us from 01/09/2015 to 30/06/2018’. Accordingly, this evidence provided by the applicant reflects that he ceased employment with his sponsor on 30 June 2018.
Having regard to this evidence, the Tribunal is satisfied that the applicant ceased employment with his sponsor for a period exceeding 90 consecutive days.
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
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 applicant gave evidence that he first arrived in Australia in December of 2013 on a student visa. He completed a Diploma of Business.
On 20 August 2015, he was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa to work in the occupation of Restaurant Manager for sponsor, The Trustee for Sutlej Investments Trust trading as Singh’s Curry Palace. Were it not for the Department’s 3 January 2019 cancellation of this visa, it would have been valid until 20 August 2019.
The applicant says that, for reasons beyond his control, the sponsor ceased trading. The Tribunal accepts that the applicant is not responsible for the closure of the sponsor’s restaurant business.
The purpose of the 457 visa is for an applicant to work on a temporary basis (usually for 4 years) for an approved sponsor in an approved occupation and that since ceasing employment with The Trustee for Sutlej Investments Trust trading as Singh’s Curry Palace on 30 June 2018 (on the applicant’s evidence), the applicant has not been able to secure another nomination. The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list; and that if an applicant had been unable to secure an approved nomination, then this meant the applicant was not able to fulfil the purpose of the 457 visa. The Tribunal considers that this weighs strongly in favour of cancelling the visa.
The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted his most recent 457 visa was to work in the occupation of Restaurant Manager for The Trustee for Sutlej Investments Trust trading as Singh’s Curry Palace, that purpose ended on 30 June 2018 when the applicant ceased working for that company. The evidence indicates that the applicant has not been able to find another sponsor. It has now been nearly 11-months since the applicant ceased working for his approved sponsor and to date the applicant has not been able to secure another approved nomination, under the 457 visa programme, or otherwise.
Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for his approved sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa.
The Tribunal has considered the applicant's compliance with visa conditions and is satisfied that other than condition 8107(3)(b), the applicant has complied with visa conditions.
The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose 90 days consecutive after the applicant ceased employment with the sponsor as he was unable to secure another nomination within the 90 day period.
As a consequence of a site visit to sponsor’s business on 23 August 2018, the Department became aware the applicant’s sponsor had ceased trading in March 2018. The Department received notification from the applicant’s sponsor that the applicant ceased employment with the sponsor in March 2018.
The undated letter of reference from the applicant’s sponsor, which was provided to the Tribunal by the applicant, reflects that the applicant worked for the sponsor from 1 September 2015 to 30 June 2018.
Accordingly the applicant had ceased employment with his sponsor on for a period exceeding 90 consecutive days.
The Tribunal notes that the applicant has not been successful in obtaining another sponsor. The Tribunal finds that these circumstances weigh in favour of cancelling the applicant's visa.
The applicant gave evidence that his family (father, mother, brother and sister) live in India.
The applicant stated he has spent several years living in Australia and considered his life would be spoiled if his visa was cancelled and he had to return to India as his lifestyle in Australia was good.
The Tribunal notes that had the applicant’s visa not been cancelled, the applicant’s visa would have expired on 20 August 2019, in approximately 3-months from the time of the Tribunal’s decision. The applicant gave evidence that he would have lodged an application for a permanent visa. The Tribunal considers that a stay in Australia on a temporary visa such as the subclass 457 visa is by its nature temporary and will ultimately come to an end resulting in the visa holder’s departure from Australia.
There is no evidence before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.
The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant, on the basis of the evidence before it, has generally complied with visa conditions. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another approved nomination since ceasing work with the sponsor approximately 11 months ago.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Bridget Cullen
Member

Jens Streit
Member

8107
(1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:
(a) cease to be employed by the employer in relation to which the visa was granted; or
(b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.
(2) If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:
(a) cease to undertake the activity in relation to which the visa was granted; or
(b) engage in an activity inconsistent with the activity in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.
(3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):
(a) the holder:
(i) must work only in the occupation listed in the most recently approved nomination for the holder; and
(ii) unless the circumstances in subclause (3A) apply:
(A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
(B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
(C) if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor; and
(aa) subject to paragraph (c), the holder must:
(i) if the holder was outside Australia when the visa was granted—commence work within 90 days after the holder’s arrival in Australia; and
(ii) if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted; and
(b) if the holder ceases employment—the period during which the holder ceases employment must not exceed 90 consecutive days; and
(c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder:
(i) must hold the licence, registration or membership while the holder is performing the occupation; and
(ii) if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and
(iii) if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and
(iv) must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and
(v) must comply with each condition or requirement to which the licence, registration or membership is subject; and
(vi) must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and
(vii) must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.
(3A) For subparagraph (3)(a)(ii), the circumstances are that:
(a) if the nomination was made before 1 July 2010—the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or
(aa) if the nomination is made on or after 1 July 2010—the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or
(b) the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.
(3B) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):
(a) the holder must work only in the occupation or position in relation to which the visa was granted; and
(b) if the holder ceases employment—the period during which the holder ceases employment must not exceed 90 consecutive days.
(4) If the visa is:
(a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(b) a Subclass 402 (Training and Research) visa; or
(ba) a Subclass 420 (Temporary Work (Entertainment)) visa;
the holder must not:
(c) cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or
(d) engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or
(e) engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.

[2019] AATA 3007

13 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice