Kamaldeep Singh (Migration)

[2019] AATA 3722

Kamaldeep Singh (Migration) [2019] AATA 3722 (6 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kamaldeep Singh

Ms Kushdeep Kaur

CASE NUMBER:  1905555

HOME AFFAIRS REFERENCE(S):           BCC2018/5625112

MEMBER:K. Chapman

DATE:6 August 2019

PLACE OF DECISION:  Brisbane

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 06 August 2019 at 6:48pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – adjournment request declined – awaiting decision of the Fair Work Ombudsman – ground for cancellation – ceased employment with sponsor – consideration of discretion – credibility issues – allegations of underpayment of wages and excessive working hours – no prejudice to progress of complaint – mental health issues – unable to secure alternative sponsorship – purpose of visa not fulfilled – validity of section 376 certificate – convicted of an offence – past and present conduct towards the Department – decision under review affirmed

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

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
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 5 March 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (‘the Act’). The first named applicant, Mr Kamaldeep Singh, is a national of India. The second named applicant, Ms Kushdeep Kaur, was the wife of the first named applicant at the time the visa was granted but is now divorced from him and is living separately.

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the first named applicant did not comply with condition 8107(3)(b) of his Subclass 457 visa because he ceased to work in the nominated occupation of Cook, in his most recently approved nomination with MOJ Malik Pty Ltd ATF MOJ Malik Investments Trust T/A Aamaya Indian Restaurant, for a period exceeding 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before it is the decision with respect to the first named applicant. The visa of the second named applicant 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 this other 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 it. The first named applicant, Mr Kamaldeep Singh, is hereafter referred to as ‘the applicant’.

4. The applicant was granted his Subclass 457 visa on 17 May 2016. The standard business sponsor who nominated him in the most recently approved nomination was MOJ Malik Pty Ltd ATF MOJ Malik Investments Trust T/A Aamaya Indian Restaurant (hereafter referred to as ‘the sponsor’). On 12 February 2019, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa on the basis that he failed to comply with condition 8107 of his Subclass 457 visa by ceasing work with the sponsor on 22 May 2018 and not resuming work with the sponsor or an associated entity within 90 days of that time. The NOICC indicates the sponsor informed the Department that the applicant had ceased employment with them on 22 May 2018.   

5. On 13 February 2019, the applicant responded in writing to the NOICC indicating that he had to cease employment with the sponsor on 22 May 2018 because Mr Mandeep Chhillar (the owner of the sponsoring business) underpaid his wages, provided him minimal leave and mentally harassed him. The applicant also indicated that Mr Chhillar demanded the payment of $30,000 in cash from him otherwise his visa would be cancelled. The applicant noted that he was still looking for another nomination as a cook at that time.  

6. On 5 March 2019, the delegate cancelled the applicant’s Subclass 457 (Temporary Work (Skilled)) visa. On 8 March 2019, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of the delegate’s decision with his application. On 12 June 2019, the Tribunal invited the applicant to attend a review hearing scheduled for 1 August 2019. On 16 July 2019, through his registered migration agent (hereafter ‘the representative’), the applicant requested an adjournment of ‘about 12 to 15 weeks’ because he had made complaints to Fair Work Australia and the Department concerning his purported ill treatment by Mr Chhillar of the sponsoring business. Following careful consideration, on 17 July 2019, the Tribunal declined the requested adjournment as it would provide sufficient time for these issues to be canvassed during the review hearing.

7. On 24 July 2019, the applicant submitted to the Tribunal documents including written submissions, social media screen shots, media articles, medical records, rosters, timesheets, handwritten notes, pay records, financial statements, visa documentation, ABN details, a contract of employment, position description, and email correspondence regarding complaints made to the Fair Work Ombudsman and the Department concerning the sponsor. The Tribunal has duly considered all submitted material.  

8. The applicant appeared before the Tribunal on 1 August 2019 to give evidence and present arguments. The applicant confirmed to the Tribunal that no other person was providing oral evidence in the review. The representative of the applicant attended the review hearing. Regular breaks were taken during the review hearing so that the applicant could confer with his representative.

9. At the review hearing the applicant submitted a CD with an audio recording of his interview with an officer of the Fair Work Ombudsman between 11:03am and 1:23pm on 25 July 2019, his mobile telephone records and a copy of an Order issued by the Magistrates Court at Holland Park indicating the applicant was convicted of ‘Using a Carriage Service to Menace, Harass, or Cause Offence’ on 7 May 2019. The Tribunal has listened to the audio recording and duly considered its contents and has also carefully considered the other submitted material.

10. On 2 August 2019, the applicant submitted post-hearing submissions, a copy of a Protection Order in relation to the second named applicant, a visa grant notice in relation to the second named applicant and her former husband, a marriage certificate regarding the second named applicant and her former husband, a copy of the first page of the delegate’s visa cancellation decision and a copy of the applicant’s complaint pertaining to the sponsor lodged with the Department dated 25 June 2019. All post-hearing submissions and evidence have been duly considered by the Tribunal.    

11. 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

12. 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?

13. A visa may be cancelled under s.116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. Condition 8107(3)(b) provides that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant's visa, which was granted on 17 May 2016 and which, but for its cancellation, was valid until 17 May 2020.

14. During the hearing the applicant advised that he separated from the second named applicant, Ms Kushdeep Kaur, around two years prior. He did not advise the Department of this separation until February 2019 because they parted on good terms, she applied for a job in a regional area and she was living her life separately. They are now apparently divorced and the applicant is unsure of her whereabouts.

15. With regards to the NOICC, the applicant indicated that he responded to it with his point of view that he had to leave employment with the sponsor due to their actions. He believes the visa cancellation decision is wrong because although it is true he left employment with the sponsor, the situation was complex and he had to leave due to underpayment of wages and excessive working hours. The applicant advised that the money he was earning with the sponsor was less than his expenses in Australia and added that he had a mental breakdown. The applicant advised that he was exploited by Mr Chhillar of the sponsor in various ways including not receiving proper breaks and having to transport goods between two of the sponsor’s restaurants in his own vehicle. Apparently Mr Chhillar asked the applicant to pay him ‘$30,000 - $40,000’ to enable him to stay employed for two years so that he could apply for permanent residence thereafter. The applicant confirmed that he left employment with the sponsor on 22 May 2018. The applicant never considered returning to India after ceasing sponsored employment citing that he had mental health problems and did not know his rights.

16. The applicant first came to Australia on 26 January 2014 as the holder of a Subclass 573 Student visa to study Information Technology. After six months the applicant’s financial circumstances apparently changed because his father had an accident and therefore he had to change courses to study Hospitality and Commercial Cookery. The applicant obtained a Subclass 572 visa for this purpose. The applicant completed these studies and applied for the position with the sponsor after seeing an advertisement on the ‘Gumtree’ website.

17. The applicant performed casual work during his studies then went on to secure employment with the sponsor in the Aamaya Indian restaurant. He worked with the sponsor between February 2016 and 22 May 2018, being full time following the grant of his Subclass 457 visa. After leaving employment with the sponsor, the applicant searched for new employment. He obtained a taxi licence in June 2018 and commenced work with ‘13 Cabs’ at Woolloongabba in July 2018. When the Tribunal asked the applicant if he was aware that working in the taxi industry was a breach of his Subclass 457 visa conditions and whether he advised his new employer that he did not have permission to work in that industry, the applicant’s demeanour was observed to be evasive and he would not provide clear answers to the Tribunal. He requested a break to confer with his representative and the Tribunal permitted this. Ultimately, the applicant confirmed that he knew he did not have permission to work in the taxi industry as the holder of a Subclass 457 visa as it was a breach of Condition 8107. He advised that he merely showed his new employer that he held a taxi licence and they did not discuss his work rights. The applicant still worked for ‘13 Cabs’ at the time of the review hearing.

18. The applicant maintained that he had to work in the taxi industry to meet his living expenses. He explained that he borrowed $10,000 from his father in late December 2016 or early January 2017, and also from his friends, and this money had to be repaid. When the Tribunal raised with the applicant that his evidence regarding the money borrowed from his father appeared to be inconsistent with his earlier evidence that he changed his course of study due to the straitened circumstances caused by his father’s accident, the applicant advised that this payment happened just once. The applicant advised that he had no other options to obtain money to pay his debts other than to work in the taxi industry. He explained that he obtained a Bridging Visa E with full work rights in March 2019 and he accepted that he did not have permission to work other than for the sponsor prior to that time.

19. The applicant outlined his employment with the sponsor in the following terms. He started as a casual kitchen hand and after two months was offered sponsorship by Mr Chhillar. In March 2016 the Subclass 457 visa application was made and on 17 May 2016 the visa was granted. Thereafter, the applicant worked full time purportedly as a cook. After a few weeks Mr Chhillar allegedly began to exploit the applicant and he was working excessive hours per week. Allegedly Mr Chhillar demanded that the applicant return half of his weekly wages to him in cash in order to maintain the sponsorship. The applicant claims that for around two years he met the demands of Mr Chhillar. The applicant outlined that he was made to perform many duties other than that of a cook, including having to transport produce in his private vehicle between the two restaurants owned by Mr Chhillar. The applicant apparently worked and was exploited in both of the restaurants. The applicant maintained that the documents he submitted to the Tribunal including the rosters and financial records illustrate that he was working excessive hours and being underpaid.

20. The applicant made a complaint by telephone to the Fair Work Ombudsman in the first week of June 2019 and on 25 June 2019 he lodged a complaint with the Department about the sponsor. On 25 July 2019, the applicant had an interview with an officer of the Fair Work Ombudsman. The Tribunal has listened to and carefully considered the contents of the submitted audio record of that interview during which the applicant made claims of underpayment, excessive working hours, forced return of wages and harassment in similar terms to that described by him during the review hearing. Towards the end of the interview with the officer from the Fair Work Ombudsman he indicates that Mr Chhillar took him to Court because he committed ‘verbal abuse’ towards him out of frustration at the situation with his employment.

21. When asked by the Tribunal why he made his complaints to the Fair Work Ombudsman and the Department regarding Mr Chhillar several months after his Subclass 457 visa was cancelled, he advised that earlier he didn’t know his rights then after consulting the representative she advised him to get his paper work in order before making the complaints. The applicant obtained much of his material for use in the complaints from his WhatsApp Group history in his mobile telephone. The applicant confirmed to the Tribunal that to his knowledge he is the only employee of Mr Chhillar who has made such complaint.     

22. The applicant conceded that he had not worked for an approved sponsor in an approved occupation since 22 May 2018. He also conceded that he breached Condition 8107 by ceasing his employment with the sponsor for a period exceeding 90 consecutive days. When asked by the Tribunal if he had made any other efforts to secure sponsored employment, he responded that he had a mental break down following his work with the sponsor and he could not work in ‘the same stream’ of work. He indicated that he feared being exploited whilst working as a cook again and was apprehensive of working in that industry. He also maintained that he suffered from additional stress arising from his father’s accident and the debt he had accrued. The applicant tried to call Mr Chhillar to resolve the situation but he did not cooperate. The Tribunal canvassed with the applicant whether he wanted to work in the same industry again and initially he specifically confirmed that he did not wish to do so because of his fear of abuse and exploitation. He stated that he likes cooking but does not want to be exploited.

23. When asked by the Tribunal why he wished to remain in Australia given the circumstances allegedly faced by him, the applicant responded he wants to ‘get his money back’ and thereafter he will return to being a cook. The Tribunal raised with the applicant that this evidence seemed inconsistent with his earlier evidence that he did not wish to work in the same industry given his expressed fears. He responded that he wouldn’t be exploited again because he knows how to handle the situation. The applicant confirmed to the Tribunal that he had not sought employment as a cook since departing sponsored employment.

24. When asked to outline his present circumstances, the applicant advised he is in fear of Mr Chhillar. He alleged that Mr Chhillar had threatened him and he feared reprisal from him in Australia or India. When asked by the Tribunal if he had made any report to the Police regarding Mr Chhillar, the applicant confirmed that he had not. The applicant confirmed that he is still a taxi driver and he conceded that until the grant of his Bridging Visa E he did not have permission to perform that work by virtue of his visa conditions. The applicant advised that he has not breached any other Australian visa conditions.

25. The Tribunal raised with the applicant that all of the Australian visas he has held, including the Subclass 457 visa, are temporary visas. The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. There should be no expectation that the grant of a Subclass 457 visa would lead to permanent residency or an extended stay in Australia. The Tribunal outlined that the applicant ceased employment with his most recently approved sponsor on 22 March 2018 which tends to suggest that his purpose for being in Australia has concluded and his visa should be cancelled. The applicant was invited to comment and responded that the wrong thing had happened to him, he didn’t know his rights and he had to work.

26. When asked by the Tribunal what is his purpose for remaining in Australia, given he earlier initially advised he did not wish to return to work as a cook then changed tack to indicate he wants to work as a cook following resolution of his matter with the Fair Work Ombudsman, the applicant responded that he does want to return to the industry but will not work for substandard wages again. When asked by the Tribunal if he had contemplated returning to India after the alleged circumstances he found himself in, the applicant indicated he spent time in Australia studying, he wants to work in his field of cookery but he didn’t expect the treatment he received from the sponsor.

27. The Tribunal raised with the applicant that given the Subclass 457 visa is a temporary work visa, that its grant should not create an expectation of further stay, and he has not worked for an approved sponsor in an approved occupation since 22 March 2018, these matters might tend to suggest the Tribunal need not await the outcome of his complaints to the Fair Work Ombudsman and the Department regarding the sponsor and that his visa should be cancelled. The applicant was invited to comment and replied that he agreed he has breached the law but he wants time to obtain the decision from the Fair Work Ombudsman. When asked if there is any reason he cannot maintain contact with the Fair Work Ombudsman offshore, the applicant replied that he has no knowledge of how this would work and it is a matter for that agency.

1. The Tribunal canvassed with the applicant if there was any reason he could not apply for another visa offshore and he advised that he can do this but he is waiting for the decision of the Fair Work Ombudsman. He added that he must pay off the debts to his family. The applicant explained that if Mr Chhillar creates ‘another drama’ for him then it is easier for him to interact with the Fair Work Ombudsman in person. The applicant expressed the view that it is better for him to liaise with the Fair Work Ombudsman face to face rather than doing so offshore.

2. The Tribunal raised with the applicant that he appeared to have gained skills and experience in the Australian work force which would make him more marketable in the Indian job market if he had to return to his country of nationality, inviting his comment. The applicant indicated that he has obtained work experience in Australia and can obtain a better job in this country. When asked by the Tribunal why he could not obtain employment as a cook in India, the applicant replied that he doesn’t know about this and he only has Australian experience.

3. The applicant maintained that he has a compelling need to remain in Australia because he is waiting for the decision from the Fair Work Ombudsman. He indicated that the wrong thing happened to him and it is not his fault. The applicant alleges he is owed $70,000 to $80,000 in unpaid wages and that his career has been destroyed. He maintained that he wants a job in his field. The Tribunal raised with the applicant that it might have difficulty accepting he would go back to cooking given his initial oral evidence that he was scared to return to the industry and did not wish to do so but then changed tack with his evidence indicating he would return after receiving his unpaid wages. The applicant was invited to comment and indicated he didn’t expect to be exploited and ripped off by the sponsor.

4. When asked by the Tribunal if he or anyone else would face hardship if his visa is cancelled, the applicant indicated that it will be ‘just him’ as he will lose his career and experience in Australia. When asked by the Tribunal why he could not return to India with his skills, the applicant responded that he doesn’t know the job market there so he can’t take his skills back. The Tribunal raised with the applicant that it appeared strange that his skills in commercial cookery with a focus on Indian cuisine were not transferrable to India, in response the applicant maintained that he doesn’t know the job market there. He added that he doesn’t want to return to India following his father’s accident because of the funds invested by his father in sending him to Australia. The applicant wants to use his skills and experience in Australia. The applicant clarified that his father gave him a sum of $10,000 followed by another sum of $4,000. The Tribunal raised with the applicant that this evidence appeared inconsistent with his earlier evidence concerning his father’s straitened circumstances and he replied that his father wanted to help his son.  

5. The Tribunal raised with the applicant that most temporary visas, including the Subclass 457 visa, require applicants to meet Public Interest Criterion (PIC) 4013 and 4014. However, given his circumstances, including that he obtained a Bridging Visa E shortly after his Subclass 457 visa was cancelled, it appeared that he is not likely to be subject to an exclusion period under PIC 4013 or 4014 if his visa is ultimately cancelled. The applicant indicated that he understands and added that it will cost him a lot of money to go back to India as well as him having money to return to his family. The applicant advised that he needs to refund his father otherwise he will be in trouble. He indicated it will be hard to see his family without refunding the money and also that it will be hard to stay in touch with the Fair Work Ombudsman other than in person if he returns to India. The applicant also raised that there is not much modern technology in his home area, although ultimately he accepted that he can access email. The Tribunal observed the applicant to display an evasive demeanour in attempting to disavow access to modern communications technology if he returned to India.  

6. The Tribunal raised with the applicant that if his visa is cancelled, and he does not hold a valid visa, he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make visa applications in Australia and he would be liable to removal from Australia, inviting his comment. The applicant requested more time, perhaps a couple of months, in order for his case to be finalised by the Fair Work Ombudsman. He advised that he is a good cook and wants to find a cooking job but he doesn’t want to work in an exploitative workplace.

7. The Tribunal raised with the applicant that if his visa is cancelled, the secondary visa holder will have her visa cancelled by operation of s.140 of the Act, inviting his comment. The applicant advised that he has not talked to her in a long time, doesn’t want to disturb her and doesn’t know where she is. When asked by the Tribunal if there were any international obligations concerning his case, the applicant replied that there were not. The Tribunal invited the applicant to give evidence on any other matters that he wished to raise in relation to his visa cancellation. He responded by requesting more time to get his money back from the Fair Work Ombudsman then he will try to find work again, although he will not accept an abusive work environment. When asked by the Tribunal if there is any reason he cannot return to India, the applicant advised that he borrowed money from his father and friends. Apparently the health of the applicant’s father is not good and he wants to refund him the money that he earned in Australia. He doesn’t want to see his father empty handed.

8. During the review hearing the Tribunal conferred with the applicant and the representative regarding the existence of a certificate pursuant to s.376 of the Act. The Department file BCC2018/5625112 contains such a certificate dated 15 March 2019 which is signed by a delegate of the Minister and the Secretary. The certificate indicates that release of material attached to it at folios 5-7, 18, 23-27, 37-40, 43-44 and 46-48 of the Departmental file would be contrary to the public interest because ‘the information included in the above folios pertains to a third party towards whom the visa holder had made threats. Disclosure of this material may place the third party at a risk of harm from the visa holder as evident from the documents. Furthermore, this may undermine Department’s confidentiality principles and consequentially detract third parties from providing similar valuable information to the Department in the future.’

9. The Tribunal provided a copy of the certificate to the applicant and invited him to make any submissions on its validity if he wished to do so. The representative submitted that the certificate appears valid. The Tribunal advised that it also formed the view that the certificate is valid given that public interest grounds are stated. Following careful consideration, the Tribunal decided not to release the material in full to the applicant given the nature of the public interest grounds cited, but provided ‘the gist’ of the material to the applicant using the procedure in s.359AA of the Act:

   a.The applicant ceased work with his approved sponsor on or around 22 May 2018. Since around the end of 2017 he separated from his wife Ms Kushdeep Kaur and he has lived separately from her. The applicant has made threats of harm to his wife and to his former employer and their family members. This included sending disgusting messages. The applicant threatened to ruin the business of his former employer. A Police complaint was made regarding some of these threats. The applicant has also been driving a Yellow Cab in Brisbane since leaving employment with the sponsor.

10. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that he ceased employment with his approved sponsor for a period exceeding 90 days, he breached the provisions of condition 8107 which was attached to his Subclass 457 visa, he lacks credibility regarding his claims in relation to his former employer and that discretion should be exercised to cancel his visa. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Subclass 457 visa cancellation decision. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review. The applicant was whether he would like more time to comment on or respond to the information, however he chose to respond immediately.

11. The applicant advised the Tribunal in response to the s.359AA information that he ‘gave some wrong voicemail messages’ to Mr Chhillar. He advised that he attempted to contact Mr Chhillar to discuss the abusive environment in the workplace but he didn’t wish to cooperate with the applicant. The applicant cited his frustration as the reason for the messages. He told the Tribunal that he had to face Court on 7 May 2019 and submitted a copy of a Court Order issued by the Magistrates Court at Holland Park indicating the applicant was convicted of ‘Using a Carriage Service to Menace, Harass, or Cause Offence’ and received a two year good behaviour bond. The applicant denied making any threats to Mr Chhillar and advised his conduct arose from fear and anger. The Tribunal has carefully considered the applicant’s response to the s.359AA information.

12. Following submissions from the representative alleging unfairness in the Court process, the Tribunal outlined that it cannot look behind the Order of the Court and noted that the s.359AA information contained messages that were both threatening and disgusting. The applicant agreed his messages were disgusting in character. He then alleged that Mr Chhillar engaged in inappropriate conduct towards his former wife, the second named applicant, and he wondered what Mr Chhillar would feel having these things done to his female relatives. The Tribunal raised with the applicant that the Court Order and his late submission of it, which tended to suggest he was shielding the information from the Tribunal until presented with the s.359AA information, also tended to undermine the credibility of his claims pertaining to Mr Chhillar. The applicant was invited to comment and indicated he tried many times to contact Mr Chhillar and he submitted copies of his telephone records. He also maintained that he brought the Court Order and his telephone records to the review hearing ‘if they were required.’ The Tribunal notes that the applicant displayed an evasive demeanour during the provision of his evidence regarding the s.359AA information and the Court Order, and attempted to downplay the gravity of his own conduct in the manner he provided his oral evidence concerning these matters.

13. The applicant informed that Tribunal that what Mr Chhillar did to him was wrong and he lost financially and in terms of his employment. The applicant alleged that Mr Chhillar also did the wrong thing with other employees, although he conceded he did wrong by sending the messages. He advised that he has made the Fair Work Ombudsman and the Department aware of the Court Order against him.

14. The representative made oral submissions requesting the Court Order not be viewed in isolation and the totality of the evidence should be considered. She summarised the applicant’s complaints pertaining to Mr Chhillar and indicated the submitted documentary material from WhatsApp supports these complaints. The representative agreed the applicant breached Condition 8107, but added that the applicant’s family liabilities forced him to do so and he is sorry. The representative requested further time until the Fair Work Ombudsman had finalised their investigation. The Tribunal indicated to the applicant that it was not minded to await the conclusion of that investigation before reaching a decision on the review application as the applicant could maintain communications with the Fair Work Ombudsman whilst offshore if his visa was cancelled. Given the credibility issues with portions of the applicant’s oral evidence, the Tribunal did not accept his assertion that he could not maintain such communications (in any event, during the review hearing the applicant conceded he could access email offshore). Further, the Tribunal advised that if repayment of wages was due to the applicant then again he could receive them offshore if his visa was cancelled. Both the applicant and the representative advised they had no more evidence to submit prior to the conclusion of the review hearing. The Tribunal has duly considered the oral submissions of the representative and the totality of the evidence before it, including the post-hearing submissions and evidence received on 2 August 2019.

15. Following careful consideration, the Tribunal finds that the applicant ceased employment with the sponsoring business, MOJ Malik Pty Ltd ATF MOJ Malik Investments Trust T/A Aamaya Indian Restaurant, on 22 May 2018. Additionally, the Tribunal finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. The Tribunal therefore finds that the applicant did not comply with condition 8107(3)(b) attached to his Subclass 457 visa.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

17. 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’.

18. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

19. The applicant’s background has been detailed above. He held a selection of temporary visas prior to the grant of his most recent temporary Subclass 457 visa on 17 May 2016. This visa would expire on 17 May 2020 but for its cancellation. The Tribunal considers that the purpose of the applicant’s stay in Australia holding a Subclass 457 visa is to work for an approved business sponsor, being MOJ Malik Pty Ltd ATF MOJ Malik Investments Trust T/A Aamaya Indian Restaurant, in the approved nominated occupation of Cook. The applicant ceased this employment on 22 May 2018. On his own evidence, the applicant has not worked in Australia for an approved sponsor in an approved occupation since that time, notwithstanding that he has subsequently worked as a taxi driver for ‘13 Cabs’ from July 2018 until the present time. Indeed the applicant advised that he has not searched for work as a cook since departing sponsored employment.  

20. The Tribunal considers it a matter of significance that the applicant has not yet obtained a current approved nomination with an approved sponsor. As previously outlined, according to the applicant’s own oral evidence he has not been in sponsored employment since 22 May 2018. It is worth pausing to reflect that this is a period of around 14 months.

21. The Tribunal considers that the applicant has had a lengthy period of time in which to seek alternate employment opportunities and become the subject of an approved nomination by an approved sponsor, he could pursue other visa options offshore, he has not worked for an approved sponsor with an approved nomination for a significant period of time, and it is inconsistent with the purpose of the Subclass 457 visa to allow him to remain in Australia to work as a taxi driver whilst he awaits the outcome of his complaint to the Fair Work Ombudsman.

22. The Tribunal prefers the initial spontaneous oral evidence of the applicant indicating that he did not wish to work as a cook again because of his fear of abuse and exploitation, to his ex-post facto attempt to advise that he wishes to pursue that career. The Tribunal does so because it has formed the view that the applicant lacks credibility and is prepared to provide misleading evidence if he believes it serves his own interests.

23. The Tribunal notes that the applicant on several occasions maintained that he could return to employment as a cook following receipt of unpaid wages following the Fair Work Ombudsman investigation. However, the Tribunal does not accept that the applicant has been unable to search for sponsored employment as a cook whilst his complaint with the Fair Work Ombudsman remains in progress. For completeness, the Tribunal does not accept that the applicant is precluded from providing further assistance to the Fair Work Ombudsman from offshore if his visa is cancelled, nor is he precluded from receiving unpaid wages offshore if he is so entitled to them. That is because modern communications technology will enable him to do so if he returns to India.

24. Whilst the Tribunal accepts that the applicant is suffering from depression and takes medication as indicated in the submitted medical records, it is not satisfied that this circumstance accounts for him not having obtained a new approved sponsor some 14 months after his cessation of employment with his original approved sponsor. This is because he has demonstrated the ability to undertake employment in the taxi industry shortly after departing sponsored employment on 22 May 2018, even acquiring a taxi licence for this purpose in June 2018. There is no persuasive evidence before the Tribunal to indicate that the applicant was incapable of seeking a new approved sponsor for his nominated occupation of cook in the 14 months which have elapsed since he concluded his employment with the sponsor. For the sake of completeness, the Tribunal notes that during the review hearing the applicant was provided regular breaks to confer with his representative and he appeared lucid throughout. Accordingly, the Tribunal does not accept that the applicant’s depression accounted for his inconsistent and evasive evidence at times during the review hearing.  

25. Following careful consideration, the Tribunal considers that the purpose of the applicant’s stay in Australia is no longer extant given the matters outlined above. Accordingly, the Tribunal finds that this factor weighs strongly in favour of cancelling the applicant’s visa.

26. As previously outlined, the Tribunal has found that the applicant breached condition 8107(3)(b) of his visa as the period during which he ceased employment with the sponsor exceeded 90 days. Further, the Tribunal finds that the applicant also breached condition 8107(3)(a) by working in the taxi industry between July 2018 and March 2019, prior to the grant of his Bridging Visa E with unrestricted work rights.  

27. Following careful consideration, the Tribunal finds that the extent of the applicant’s compliance with visa conditions weighs strongly in favour of cancelling his visa given the centrality of compliance with condition 8107 to the purpose of the grant of the Subclass 457 visa and the sustained breach of condition 8107(3)(a) in relation to his employment as a taxi driver.

1. Regarding the applicant’s past and present conduct towards the Department, it is apparent that he did not advise them in a timely fashion of his change of circumstances when he separated from his then wife, Ms Kushdeep Kaur who is the second named applicant. The Tribunal accepts that the applicant did notify the Department in February 2019 as he explained in oral evidence, and it notes that the delegate’s visa cancellation decision reflects him being separated as raised by the representative. However, the applicant separated from the second named applicant around two years prior to the review hearing on his own oral evidence and the Tribunal forms the view that he did not bring this to the attention of the Department until he came into contact with them around the time the NOICC was issued. It is worth pausing to reflect that Ms Kushdeep Kaur held a Subclass 457 visa as a secondary applicant for a significant period of time following her separation from the applicant. Having regard to the aforementioned matter, on balance, the Tribunal finds that the applicant’s past and present conduct towards the Department weighs moderately in favour of cancelling his visa.

2. For completeness, the Tribunal notes that it has considered the applicant’s post hearing submissions and evidence regarding the second named applicant. It is contended that she was previously married to a Mr Dalveer Singh Brar (born in February 1991) and entered Australia with him on a Subclass 573 Student visa. Further, it is contended that she claimed domestic violence against Mr Brar for a mischievous purpose and obtained a Protection Order including the applicant on 31 August 2016. Additionally, it is contended that the second named applicant is now ‘blaming’ the applicant for her circumstances, she has moved away from him and it is suspected that she is in cahoots with Mr Chhillar. The Tribunal does not consider the aforementioned matters to mitigate the applicant’s failure to advise the Department in a timely fashion of his separation from the second named applicant.

3. There is no persuasive evidence before the Tribunal to suggest Mr Brar was involved in any way in the circumstances concerning the cancellation of the applicant’s visa by the Department. As to the speculation that the second named applicant and Mr Chhillar are acting together to try and have the applicant removed from Australia, there is no persuasive corroborating evidence before the Tribunal on this matter. Indeed, the applicant gave oral evidence indicating that he parted on good terms with the second named applicant and also that Mr Chhillar allegedly engaged in inappropriate conduct towards her, matters which are inconsistent with his post-hearing speculation and further undermine his credibility. Accordingly, the Tribunal affords no weight to the post-hearing speculation regarding the second named applicant and Mr Chhillar being in league together against the applicant.

4. The Tribunal records it concern that the second named applicant, Ms Kushdeep Kaur, appears to have maintained a Subclass 457 visa as a secondary visa applicant for a significant period of time following her separation and divorce from the applicant. The Tribunal raises this matter to the attention of the Department for any further consideration it may wish to make.

5. Additionally, the Tribunal has carefully considered the applicant’s submissions, including those made post-hearing, that he has advised both the Fair Work Ombudsman and the Department of his Court Order and resulting two year good behaviour bond. The Tribunal accepts this is the case. It is apparent from the documentary and oral evidence that the applicant advised those agencies around June 2019 that he had been ‘taken to Court’ by Mr Chhillar. During his interview with the officer from the Fair Work Ombudsman on 25 July 2019 (at the 2 hours and 16 minutes mark) he advised that he was taken to Court because he ‘did verbal abuse to him’. Notwithstanding the aforementioned matters, the applicant did not volunteer this information to the Tribunal until presented with the s.359AA information as previously outlined. This is a matter which undermines his credibility in the view of the Tribunal.

6. The Tribunal has also had regard to the circumstances of the visa cancellation. The applicant contends that he ceased employment with the sponsor as he had no option but to leave an abusive work environment, these allegations having been previously outlined. The Tribunal makes no finding as to the veracity of the applicant’s claims against Mr Chhillar in terms of his treatment in the workplace, as these are matters subject to investigation by the Fair Work Ombudsman and the Department. However, the Tribunal is prepared to accept that the applicant felt that employment with the sponsor was not to his liking. Therefore, the Tribunal is also prepared to accept that the ground for visa cancellation did not arise due to the actions of the applicant. On balance, the Tribunal finds that the circumstances in which the ground for visa cancellation arose weighs moderately against cancelling the applicant’s visa. In the circumstances of the present matter, however, the Tribunal is of the view that the circumstances of the visa cancellation must be balanced against other relevant factors in determining whether the applicant’s Subclass 457 visa should be cancelled.

7. The Tribunal has also considered the hardship that may be experienced if the applicant’s visa is cancelled and whether there is any compelling need for him to remain in Australia. The Tribunal notes the applicant gave oral evidence indicating that he will face hardship if his visa is cancelled in the following ways. He expressed that he will lose his career and experience in Australia. Following careful consideration, the Tribunal does not accept that the applicant is unable to return to India to work as a cook specialising in Indian cuisine given he has developed valuable skills and experience which would make him more marketable in the Indian job market. Therefore, the Tribunal does not accept that the applicant will lose the experience he has gained in Australia, nor will he lose his ability to pursue his career in India. On balance, the Tribunal does not accept that the applicant will be unable to obtain work and re-establish himself in India given his personal qualities, educational attainment and work experience. Whilst the Tribunal accepts there would be a period of readjustment for the applicant in returning to the Indian employment market, it does not accept he cannot adapt given the aforementioned matters.

8. Following careful consideration, the Tribunal accepts that the applicant will suffer some upset at not being able to pursue a career in cooking in Australia following his studies if his Subclass 457 visa is cancelled. This hardship weighs slightly against cancelling the applicant’s visa. However, as previously outlined, the Tribunal is satisfied that the applicant would be able to return to India and transfer his Australian experience if his visa is cancelled. Accordingly, the Tribunal does not accept that any career goals of the applicant present a compelling need for him to remain in Australia.

9. The applicant maintains that he borrowed funds from his friends and family, primarily his father, to assist him in Australia and he does not want to return to India without having sufficient funds to make repayment, especially in light of his father’s accident. Whilst the Tribunal notes the applicant gave inconsistent oral evidence regarding his father’s financial position as previously detailed, it is prepared to accept that he owes some money to him and others and that if his Subclass 457 visa is cancelled then it may take him longer to make repayment if he is not working in Australia. This hardship weighs slightly against cancelling the applicant’s visa.

10. For completeness, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia for the purpose of earning funds to repay his debts given this is not the purpose for which he was granted the Subclass 457 visa. Additionally, the applicant indicated in general terms that he would be in trouble from his father if he returned to India without funds to repay his debt, however the applicant did not suggest any harm would be experienced by him at the hands of his father and the Tribunal is not satisfied that this matter constitutes a compelling need for him to remain in Australia. The Tribunal accepts that some upset would be experienced by the applicant’s father, wider family members and friends if the applicant’s visa is cancelled, and this weighs slightly against cancellation of the Subclass 457 visa.

11. The applicant maintained that he has a compelling need to remain in Australia to await the decision of the Fair Work Ombudsman with respect to his complaint against Mr Chhillar of the sponsor. The Tribunal notes that the applicant has already been personally interviewed by an Officer of the Fair Work Ombudsman concerning the aforementioned complaint. For reasons previously expressed, the Tribunal is satisfied that if the applicant’s visa is cancelled and he returns to India he can maintain communication with the Fair Work Ombudsman using modern technological means. Further, if the applicant is owed funds in respect of unpaid wages, then these may be transferred to him offshore using modern banking methods if his visa is cancelled. Similarly, the Tribunal is satisfied that the applicant can maintain contact with the Department in relation to the complaint he made with them concerning Mr Chhillar. On balance, the Tribunal does not accept there will be any prejudice to the progress of the investigations into the applicant’s complaints if his visa is cancelled. Accordingly, the Tribunal does not accept that the applicant has a compelling need to remain in Australia awaiting resolution of his complaints with either the Fair Work Ombudsman or the Department. Nor does the Tribunal accept that any hardship will arise for the applicant if he pursues his complaints offshore in the event that his Subclass 457 visa is cancelled.

12. As raised with the applicant during the review hearing, the purpose of the Subclass 457 visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. It is not the purpose of this visa to enable the applicant to remain in Australia to earn funds as a taxi driver to repay his debts and to consider seeking new sponsored employment at some future point. Whilst the Tribunal accepts that upset might be caused to the applicant and his family members if he is departs Australia, there is no persuasive evidence (including medical evidence) to suggest that such upset would have any detrimental long term consequences. For completeness, the Tribunal accepts that the applicant is receiving treatment in respect of his mental health and that some disruption would be caused to it if his visa is cancelled and he returns to India. The aforementioned matter weighs moderately against cancelling his Subclass 457 visa. However, the Tribunal does not accept that this treatment constitutes a compelling need for the applicant to remain in Australia given the applicant did not consider it to be such a need, he has demonstrated the ability to work as a taxi driver despite his treatment and the medical evidence does not suggest the gravity of the condition is such as to require his ongoing presence in Australia.

13. Following careful consideration of the evidence, the Tribunal does not accept that there is a compelling need for the applicant to remain in Australia holding a Subclass 457 visa. Accordingly, this consideration weighs neither in favour of, nor against, cancelling his visa. Whilst the Tribunal accepts that visa cancellation might cause some hardship to the applicant, his family and friends as previously outlined, this circumstance must be balanced against the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently.

14. The Tribunal notes that the Subclass 457 visa of the second named applicant will be consequentially cancelled pursuant to s.140 of the Act if the applicant’s visa is cancelled. However, her visa was granted on the basis of her being a member of the family unit of the applicant and in any event she no longer holds this status. Following careful consideration, the Tribunal finds that the consequential cancellation of the visa held by the second named applicant weighs neither in favour of, nor against, the cancellation of the applicant’s visa in the aforementioned circumstances.

15. With respect to the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant and the second named applicant do not hold a valid visa they would be unlawful non-citizens and subject to immigration detention, it would be difficult for them to make visa applications in Australia and they would be liable to removal from Australia. However, the Tribunal also notes that it is unlikely that the applicant himself will be affected by the three year exclusion period in PIC 4013 and 4014 if he applies for a temporary visa offshore given his circumstances, including that he obtained a Bridging Visa E shortly after his Subclass 457 visa was cancelled. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s visa given they are the intended consequences of legislation.

16. In relation to the consideration of Australia’s international obligations, there is no persuasive evidence before the Tribunal that any such obligations would be breached as a result of the applicant’s visa being cancelled. Indeed, the applicant in his oral evidence could not point to any such potential breaches. The Tribunal notes that the applicant referred to being in trouble with his father if he returns to India without funds to repay him. For reasons previously outlined, the Tribunal is not satisfied that this assertion amounts to a claim of harm within the context of Australia’s international obligations.

17. Further, the Tribunal does not accept the veracity of the applicant’s claims regarding purported threats made by Mr Chhillar to him, including threats to harm him in India. This is because the alleged threats were not particularised by the applicant, he has never made a Police complaint regarding them, he is the one who has been found guilty by the Court of an offence against Mr Chhillar, and also due to the significant credibility concerns previously outlined. On balance, the Tribunal does not accept that the applicant faces a real chance of serious harm, or a real risk of significant harm, from Mr Chhillar if his visa is cancelled and he returns to India. For completeness, the Tribunal is not satisfied that the applicant faces any harm whatsoever from any other person in India if his visa is cancelled and he returns to his country of nationality. Accordingly, there is no persuasive evidence before the Tribunal to suggest that there would be any breach of Australia’s non-refoulement obligations if the applicant’s visa is cancelled. On balance, the consideration of Australia’s international obligations weighs neither in favour of, nor against, the cancellation of the applicant’s visa.

18. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there is any other relevant matter weighing either in favour of, or against, cancellation of his visa.   

    CONCLUSION

19. The Tribunal has carefully reflected upon the factors both against, and in favour of, cancelling the applicant’s Subclass 457 visa. As outlined above, the Tribunal notes that some factors weigh against cancellation of the visa. These factors must be carefully balanced with those in favour of the visa cancellation. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

20. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should be cancelled.

    DECISION

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

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

    K. Chapman
    Member