Kalra (Migration)

[2020] AATA 3482

Kalra (Migration) [2020] AATA 3482 (11 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lav Kalra
Mrs Hina Solanki

CASE NUMBER:  1808266

HOME AFFAIRS REFERENCE(S):          BCC2018/129346

MEMBER:Nicola Findson

DATE:11 May 2020

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 11 May 2020 at 9:56am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased work for more than 60 consecutive days – position made redundant – not able to secure alternative sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189, 198, 348
Migration Regulations 1994 (Cth), Schedule 8, Visa Condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 March 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) 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 comply with a condition of his Subclass 457 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicants appeared before the Tribunal on 2 October 2019, to give evidence and present arguments.

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. It relevantly requires the applicant to work only in the occupation listed in the most recently approved nomination and, unless subclause (3A) applies, to only work in a position in the business of the sponsor, or an associated entity of the sponsor. Also, condition 8107(3)(b) requires that if the applicant ceases employment, the period during which he ceases must not exceed 60 consecutive days.

8. The delegate’s notification of cancellation, a copy of which was provided to the Tribunal by the applicant for the purposes of the review, records that the applicant was sponsored by Wandering Star Investments Pty Ltd to work in the nominated occupation of Cook.  He was granted a Subclass 457 visa on 19 July 2017, valid until 19 July 2019. The Department was informed that the applicant had ceased employment with the sponsor, effective 21 July 2017. The Department’s records show that a nomination application was made on 16 August 2017 nominating the applicant to be employed by a new sponsor CMJ Holdings Pty Ltd. However, that application was withdrawn on 13 September 2017.

9. On 2 March 2018, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa, on the basis that he was in breach of condition 8107. The applicant responded on 12 March 2018, indicating that his employment with his sponsor ceased as a result of “bad circumstances”. He also indicated that he was unaware that the nomination application lodged by CMJ Holdings Pty Ltd in relation to him had been withdrawn. The delegate took the applicant’s submission into account. However, on 21 March 2018, the delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had ceased employment for a period exceeding 60 days and therefore breached condition 8107.

10. At the hearing the applicant confirmed that he started working for the sponsor when the nomination in relation to his position was approved in March or April 2017. He confirmed that he ceased that employment in July 2017. The reasons he ceased working for the sponsor are discussed in more detail below. He confirmed that he understood condition 8107.

11. On the basis of the evidence before it, the Tribunal finds the applicant ceased employment with his sponsor in July 2017. He has not returned to work for the sponsor since that time. The Tribunal finds the applicant has ceased employment for a period of more than 60 consecutive days. He is therefore in breach of condition 8107.

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 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’.

14. At the hearing, the applicant told the Tribunal he had originally come to Australia as a student in 2009 and that he had completed studies in Hospitality Management.  He indicated that in about 2013, a subsequent student visa application made by him, to enable him to continue with this course of study, was refused by the Department on the basis that he had not lodged it in time.  He said he sought review of this refusal decision.  However, around this time, he also had an opportunity to apply for a Subclass 457 visa, when the employer he had been working for on a part-time basis offered to sponsor him.  He said that he decided to withdraw his student visa review application, not only because it was going to cost him too much money to progress it, but because he was successful in securing a Subclass 457 visa. 

15. The applicant told the Tribunal that he was granted a Subclass 457 visa in May 2014, to work in his sponsor’s business – Poppy’s Cake Kitchen, in North Perth - on a full-time basis.  Departmental information before the Tribunal confirms that a Subclass 457 visa was granted to the applicant on 29 May 2014, to enable him to work as a cook for his sponsor, Bhagwati Enterprises Pty Ltd, and that this visa ceased on 29 May 2015.

16. The applicant told the Tribunal that before his visa ceased, his sponsor closed Poppy’s Cake Kitchen and opened another café – Joe Muggs Café - in Mount Lawley.  He said that he was retained by his employer to work as a cook in the new business.  He indicated that the Department was not informed by his sponsor’s migration agent of the closure of Poppy’s Cake Kitchen, and a ban was imposed on the sponsor when the Department did become aware of this change in circumstance.  He indicated that when his employer made a new application for Standard Business Sponsor approval, the application was refused by the Department.

17. The applicant told the Tribunal that he secured another job, at the Soda Sun Lounge Café, in North Beach, after it became clear he would not be able to continue working for his sponsor as the holder of a Subclass 457 visa.  He said that although this new employer was willing to sponsor him, the company’s Standard Business Sponsor approval application was denied by the Department.

18. The applicant indicated to the Tribunal that he was granted a subsequent Subclass 457 visa, the visa the subject of this review, in July 2017, to work as a Cook for Wandering Star Investments Pty Ltd.   The applicant indicated that the circumstances leading to the breach were due to factors beyond his control.  He told the Tribunal that he had started working for the sponsor in about March or April 2017, when the nomination in relation to him had been approved, however, things did not go well from the beginning.  He said the business had two premises and he was sent to the one he had elected not to work at.  He also said that the Head Chef there did not get along with him.  Then he said he was told, after working for his employer for three or four months, that his position needed to be made redundant because the company was having financial difficulties. 

19. The applicant told the Tribunal that shortly after his services were terminated by Wandering Star Investments Pty Ltd, he managed to find a new employer – CMJ Holdings Pty Ltd - which trades as the Canteen Kitchen in Dunsborough, Western Australia.  He said a nomination application in relation to him was lodged in August 2017 by CMJ Holdings Pty Ltd. The Tribunal discussed with the applicant the information before it, as set out in the delegate’s decision record, that this nomination application was withdrawn in September 2017.  The applicant told the Tribunal that he was not aware the nomination application had been withdrawn until he received the NOICC from the Department in March 2018.  He said he had telephoned the Department to follow up the progress of the nomination application towards the end of 2017, but was not provided with any information given it was not his application.   He also said that, during phone conversations with one of the owners of his prospective sponsor between September and November 2017, he had been assured that the business still needed him.  The applicant told the Tribunal that he was very shocked to learn the nomination application had been withdrawn.  He said he spoke with the owner of CMJ Holdings Pty Ltd immediately after receiving the NOICC, and was told that the application had been withdrawn because it was taking too long and they had found someone else to fill the position.  When the Tribunal expressed scepticism that the owner of the business would indicate that the nomination application was still on foot, when she would have been aware it had already been withdrawn, the applicant replied that it had been the husband of the owner who had withdrawn the application. He told the Tribunal that he would have tried to secure another sponsored position if he had known about the withdrawal.

20. The applicant told the Tribunal that he tried very hard to secure sponsored employment after he received the Department’s NOICC.  He said he found four prospective jobs – in Perth, Albany and Margaret River – with employers who were willing to consider sponsoring him.  However, he said that each of these prospective employers asked him to do work trials for them, which is common practice in the industry, so that they could see his skills before committing to sponsoring him.  He said that advice from a migration agent informed his decision not to perform any work for these prospective employers.  He said he was advised that it was a condition of his visa that he remained employed by his sponsor and that he could only work for his sponsor unless he was successful in being sponsored by another company.  He told the Tribunal there are two Indian restaurants willing to sponsor him currently.  The Tribunal asked for evidence of these employment opportunities, which the applicant undertook to provide after the hearing.  On 9 October 2019, the Tribunal received a written submission from the applicant which, among other things, set out that he was unable to provide any written evidence of his current employment opportunities because the owners of the restaurants willing to sponsor him were currently overseas. 

21. The Tribunal observed that the temporary work visa granted to the applicant was granted to enable him to work in a nominated position and occupation with his approved sponsor.  The Tribunal noted that the applicant had ceased working for his sponsor well over two years ago, in July 2017, and had spent over two years living in Australia outside of the subclass 457 scheme, without the protections and obligations that it places on visa holders and sponsors. The Tribunal asked the applicant why in these circumstances he had remained in Australia and whether there was any reason why he should continue to remain. The applicant told the Tribunal that he had done everything lawfully since he had arrived in Australia in 2009; that it was not his fault his sponsorship(s) came to an end; and that he had encountered ‘bad luck’ with ‘many promises of sponsorship’.  The Tribunal observed that the practical reality of the applicant’s situation was that his visa would have expired in any event, but for cancellation.  The Tribunal explained that it did not have the power to extend the term of the visa if it were to effectively reinstate it.  The applicant told the Tribunal that he would like to continue to work in the hospitality industry in Australia, if his visa cancellation is set aside.  He said he was an honest person and a hard worker, and that he had worked at a number of well-known restaurants around Perth since he had been in Australia.

22. The applicant told the Tribunal that he and the secondary applicant, Ms Solanki, met in Australia and married in 2013.  The Tribunal was told that Ms Solanki came to Australia at the end of 2009, as the holder of a student visa, to undertake a Master of Forensic Science.  The applicant said he is currently working as a part-time taxi driver, to support himself and his wife.  The Tribunal was told that Ms Solanki is not working at the moment.  She is currently suffering a health issue which requires surgery when they are in a position to afford it given that their medical insurance will not cover it (medical and pathology reports were provided to the Tribunal in support of this claim after the hearing). The Tribunal was also told that Ms Solanki had been turned down for several jobs for being “over-qualified”.   

23. The Tribunal asked the applicant if he or his wife would suffer hardship if the visa was cancelled.  The applicant told the Tribunal that he does not want to return to India because there is no life for him there, and the life of his wife would be in danger.  He said that his marriage with the secondary applicant is a love marriage, and that if he loses his visa in Australia, they will both lose in India because their ‘life will be gone’.  He indicated he and Ms Solanki come from different parts of India and are of different religions and ethnicities.  He said he has not spoken with his parents for a long time, because they disapprove of his marriage to Ms Solanki.  He said Ms Solanki’s family are also against their marriage.  He said if they returned to India, they would be unable to live together and may be forced into other marriages arranged by their respective families’.  The applicant indicated to the Tribunal that he enjoys living in Australia because it is a multicultural society.    

24. The Tribunal has considered the applicant’s purpose for remaining in Australia.  The Tribunal has had regard to the applicant’s evidence that he wishes to stay in Australia to continue to work in skilled employment, and that the breach of the visa condition arose not through any fault of his, but because his sponsor made his position redundant.  The Tribunal places significant weight on a Subclass 457 visa being a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal finds that the purpose of the applicant’s stay in Australia, when granted his visa, was to work in the nominated position for Wandering Star Investments Pty Ltd. However, this purpose no longer exists as the applicant ceased working for the sponsor, very shortly after he was granted his visa, in July 2017.  The Tribunal has had regard to the evidence before it that a nomination application was lodged by CMJ Holdings Pty Ltd in relation to the applicant, less than 60 after he ceased employment with Wandering Star Investments Pty Ltd, which was subsequently withdrawn on 13 September 2017.   The Tribunal has concerns, as discussed with the applicant during the hearing, that he was unaware that the application had been withdrawn, given he had been in contact with the business owner of CMJ Holdings Pty Ltd several times between September and November 2017.  Nonetheless, this alternative sponsorship did not eventuate, and it remains the case that the specific purpose of the applicant’s subclass 457 visa ceased to exist when his sponsor no longer required his skills.  The Tribunal finds that the purpose of the visa is no longer being served by the applicant’s presence in Australia, and indeed has not been served for some time. 

25. The Tribunal has considered the applicant’s claims raised during the hearing that his marriage to Ms Solanki will make things very difficult if they return to India.  That is, that they will be forced to live apart and Ms Solanki’s life may even be in danger. The Tribunal is sympathetic to the applicants’ situation, and is cognizant of the cultural pressure of an arranged marriage, but in this case it is not persuaded that this claim constitutes a compelling need for the applicant to remain in Australia.   The evidence before the Tribunal is that the applicant has not spoken with his family for a significant period of time, and that both he and Ms Solanki have not lived in their respective home areas of India since 2009.  In these circumstances, the Tribunal is of the view that it would be open to the applicants to consider relocating within India on their return to avoid any consequences of not entering into an arranged marriage by their families.  The Tribunal is also of the view that it is open to the applicants to lodge an application for a protection visa and to have any relevant claims for protection properly considered by a decision maker, if they would like to. In this case, the Tribunal considers that this factor weighs in favour of cancelling the visa.

26. The Tribunal has considered the evidence before it as to the hardship that may be caused if the visa is cancelled.  The Tribunal recognises that the applicant has spent a considerable period of time in Australia as a student and subsequently. It follows that the Tribunal accepts that the applicant will have connections with Australia and an outcome that requires him to depart Australia will be a source of great disappointment to him, and there may be financial and emotional consequences.  The Tribunal has considered that the applicant and Ms Solanki may encounter some hardship from their respective families arising from their marriage. In this case, the Tribunal attributes some weight to this factor, which would weigh against the cancellation of the visa.

27. The Tribunal has considered the circumstances in which the ground for cancellation arose.  The Tribunal has had regard to the applicant’s evidence that his employment ceased because his sponsor made his position redundant.  It accepts that the circumstances were beyond the applicant’s control.  It also accepts that he has made attempts to secure sponsored employment.  However, it notes that it has been well over two years since he ceased employment with Wandering Star Investments Pty Ltd.  The Tribunal is of the view that the applicant has been given significant time since the Department’s decision to cancel his visa in March 2018, to secure sponsored employment, as the subject of an approved nomination and, despite his efforts, he has not been able to do this.  The Tribunal considers that this factor weighs in favour of the cancellation of the visa.

1. The Tribunal considers that, other than the breach of visa condition 8107, there is no information before the Department which suggests that he has not complied with other conditions, and there is no information about his past and present behaviour towards the Department which would weigh against him.  However, the Tribunal does not find that either of these matters weigh against, or in favour, of the cancellation of the visa. 

2. The delegate’s decision records that Ms Solanki will be subject to cancellation pursuant to s.140 of the Act if the applicant’s visa is cancelled.  The Tribunal notes that the visa of the applicant’s wife was granted on the basis of her being a member of his family unit and it is the intended consequence of the legislation that members of the same family have the same visa status. For these reasons, the Tribunal gives this consideration limited weight against the cancellation of the visa.

3. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, if the visa is cancelled, the applicant will also be prevented from applying for a skilled visa onshore.  However, the Tribunal has also considered that the delegate’s decision records that he will not be subject to Public Interest Criterion 4013 and therefore will not be prevented from applying for another visa for three years.  The Tribunal acknowledges that current global circumstances, that being the pandemic of Covid-19, may impact on the applicant’s ability to depart Australia if his visa is cancelled.  However, it does note that the applicant is able to apply for a bridging visa to enable him to remain in Australia until he is able to return to his home country.  The Tribunal gives these consequences some weight against the cancellation of the visa.

4. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations in this case.  The Tribunal has had regard to the applicant’s claims related to his ‘love marriage’ with Ms Solanki.  However, neither the applicant or Ms Solanki has lodged an application for a protection visa to have any relevant claims for protection properly considered by a decision maker to date, and they will not be barred from doing so under s48 of the Act, if they decide they would like to.  

5. On balance, the Tribunal is of the view that the visa should be cancelled, despite hardship to the applicant and his wife, and the other matters that have been set out above which weigh against affirming the decision to cancel the visa.  The visa was granted for a specific purpose, and the subclass 457 scheme, is for businesses in Australia to be able to employ foreigners for the purposes of fulfilling specific roles in circumstances where local businesses cannot find employees in Australia to fulfil those specific tasks.  The applicant has not been working within that scheme since July 2017, and has not been able to secure another sponsor in well over two years since he ceased working there.

6. In addition, there is nothing stopping the applicant from applying for another skilled visa offshore, and while there may be some difficulties for the applicant and his wife returning to India to await the outcome of any future application for a skilled visa, the Tribunal does not consider that that hardship is insurmountable, or that any foreseeable hardship in this case would provide a reason sufficient to exercise the discretion to set aside the delegate’s decision.

7. The Tribunal has carefully considered and weighed all of the relevant circumstances of the applicant in this case. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

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

9. The Tribunal has no jurisdiction with respect to the second named applicant.

   Nicola Findson
   Member