Karnaljeet Singh (Migration)

[2022] AATA 932

Karnaljeet Singh (Migration) [2022] AATA 932 (14 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karnaljeet Singh

REPRESENTATIVE:  Mr Saikumar Iyer (MARN: 1388041)

CASE NUMBER:  2109826

HOME AFFAIRS REFERENCE(S):          BCC2020/236156

MEMBER:Mary Sheargold

DATE:14 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 14 April 2022 at 1:16pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – circumstances beyond applicant’s control – directed to work from home then stop because of COVID-19 restrictions – travelled to home country to marry – nomination withdrawn and nominator’s sponsorship cancellation and bar and winding up in insolvency – discretion to cancel visa – no approach to department – unpaid wages and superannuation – financial and emotional hardship – new employer’s position nomination for different subclass visa in progress – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), (3), 140M
Migration Regulations 1994 (Cth), rr 2.43(1)(l)(iv), 5.19(4), Schedule 8, condition 8107(3)(a)(ii)(B), (b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Karnaljeet Singh came to Perth in November 2017. He worked as an Analyst Programmer, his nominated skilled occupation, with The Lester Partnership Pty Ltd and then from July 2018 with Deimos Technologies Pty Ltd. Deimos Technologies made an application to sponsor him for permanent residency under the Regional Skilled Migration Scheme set out in r.5.19(4) of the Migration Regulations 1994 (Cth). In November 2019, he and his colleagues were directed to work from home on a full-time basis. By December, he was told to stop working. He travelled to India briefly in February 2020 where he was married. He returned to Perth at the beginning of the Covid-19 pandemic lockdown and has not worked since.

2. In April 2020, Mr Singh discovered that Deimos Technologies had withdrawn its application to sponsor him for a Subclass 187 visa, and he discovered that Deimos Technologies’ office had been vacated.  Evidence before the Tribunal shows that insolvency proceedings against Deimos Technologies had been initiated in July 2019 and were finalised in late November 2019, where the court ordered it be wound up in insolvency.  Deimos Technologies has ceased to exist.  Following this court order, the Department cancelled Deimos Technologies’ sponsorship approval and barred it for 36 months from 21 September 2020.  It is on this basis that the Department sought to cancel Mr Singh’s Subclass 457 visa.

3. Mr Singh struggled to find a new role in Perth during the Covid-19 pandemic.  In September 2020, he identified an employment opportunity with SAAS Value Pty Ltd, based in Wodonga, Victoria.  In 2021, he relocated to Victoria to pursue that employment opportunity.  SAAS Value Pty Ltd has applied to sponsor Mr Singh for a Skilled Employer Sponsored (Regional) Subclass 494 visa to work as a Software Engineer.

4. Mr Singh appeared before the Tribunal on 21 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  Mr Singh was represented in relation to the review, and his representative attended the Tribunal hearing by video link.

5. I am tasked with determining whether the ground to cancel Mr Singh’s Subclass 457 visa exists and if so, whether I should exercise the discretion to cancel his visa.  Mr Singh agrees that the grounds to cancel his visa is made out.  However, he seeks the Tribunal’s exercise of its discretion not to cancel his visa, arguing that the considerations in favour of cancelling the visa are outweighed by those against cancellation.  I have carefully considered the matters relevant to the discretion to cancel Mr Singh’s visa, and for the reasons set out below, I have decided to substitute the delegate’s decision to cancel his visa with a decision not to cancel it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. On 30 July 2021, a delegate of the Minister for Home Affairs cancelled Mr Singh’s Subclass 457 (Temporary Work (Skilled)) visa under s 116 of the Migration Act 1958 (Cth) (the Act). The Minister may cancel a visa pursuant to s.116 of the Act if they are satisfied that certain grounds specified in that provision are made out.

7. The delegate cancelled Mr Singh’s visa under s 116(1)(g) because the prescribed condition set out in r.2.43(1)(l)(iv) exists: specifically, his sponsor has been cancelled or barred under s.140M of the Act. I must decide whether that ground for cancellation is made out, and if so, whether, having regard to all the relevant circumstances (that may include matters of government policy), the visa should be cancelled.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Regulations. In this case, the ground in reg 2.43(1)(l)(iv) is relevant.

9. Mr Singh does not dispute that Deimos Technologies had its sponsorship approval cancelled and that it has been barred from sponsoring temporary visa holders for 36 months from 21 September 2020.  The evidence before the Tribunal confirms the factual accuracy of the sponsorship cancellation and bar on these terms.

10. Therefore, I am satisfied that the ground for cancellation in s 116(1)(g) of the Act and r.2.43(1)(l)(iv) of the Regulations exists. As this ground does not require mandatory cancellation under s 116(3), I must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

11. The Minister’s power to cancel a visa pursuant to s.116(1) of the Act is discretionary. Therefore, I must now decide whether or not to exercise the discretion to cancel Mr Singh’s visa. Noting that there are no prescribed considerations in either the Act or the Regulations, I have weighed up all the evidence before me from Mr Singh against the matters set out in the Department’s Procedures Advice Manual (PAM3) regarding the exercise of visa cancellation powers.  To make my decision, I have asked the following questions:

    a.What was the purpose of Mr Singh’s travel to and stay in Australia?

    b.To what extent has he complied with his visa conditions?

    c.What degree of hardship may be caused if his visa is cancelled?

    d.In what circumstances did the ground for cancellation arise?

    e.How has Mr Singh behaved towards the Department in the past? How has he behaved during this process?

    f.Would any other visas be cancelled as a consequence of cancelling Mr Singh’s visa?

    g.What are the legal consequences of cancelling Mr Singh’s visa?

    h.Does Australia have any international obligations that may arise if Mr Singh’s visa was cancelled?

12. In reaching my findings, I have considered the applicant’s evidence in relation to these matters as set out below.

    What was the purpose of Mr Singh’s travel to and stay in Australia?

13. Mr Singh was granted a Subclass 457 visa for the purpose of working in his nominated occupation of Analyst Programmer.  The Subclass 457 visa scheme requires visa holders to work for an employer approved by the Department to sponsor them in their nominated skilled occupation.  Mr Singh was most recently nominated to work in his nominated occupation of Analyst Programmer by Deimos Technologies Pty Ltd.

14. Deimos Technologies has had its sponsorship approval cancelled and has been barred from sponsoring temporary visa holders from 21 September 2020 for 36 months.  The impact of the Covid-19 pandemic was felt not long after Mr Singh ceased working for Deimos Technologies and he was not able to secure a new sponsorship.  However, his evidence at the hearing, that I accept, is that he has actively sought out opportunities to continue employment in the information technology field, and has relocated to Victoria in the hope of being granted a Subclass 494 visa to work as a software engineer in Wodonga.

15. Although the nomination application supporting Mr Singh’s Subclass 494 visa has not yet been approved, I am satisfied that it is consistent with his purpose for travelling to and staying in Australia.

16. Therefore, I give this consideration some weight against cancelling the visa.

    To what extent has Mr Singh complied with his visa conditions?

17. Mr Singh’s Subclass 457 came with 2 conditions: condition 8107, regarding his work status, and condition 8501, requiring him to maintain adequate arrangements for health insurance while he is in Australia.

18. There is no evidence before me to suggest that Mr Singh did not comply with condition 8501 at any time whilst he held his Subclass 457 visa.

19. Condition 8107 also attached to Mr Singh’s visa.  Relevantly, condition 8107(3), a multi-pronged condition, requires, inter alia, that Mr Singh only work in a position in the business of his sponsor or an associated entity (condition 8107(3)(a)(ii)(B), and that if he ceases employment, the period during which he ceases employment must not exceed 60 consecutive days (condition 8107(3)(b)).

20. Mr Singh does not deny that he ceased employment with his most recently approved sponsor Deimos Technologies for more than 60 consecutive days.  He has submitted that he did not appreciate all of his obligations under condition 8107 and did not attempt to contact the Department to discuss his inability to continue working for Deimos Technologies given it had ceased operations and he was unable to contact any representative from the company.  I accept that Mr Singh had no ability to control the situation he found himself in with Deimos Technologies.  However, I give some weight to the fact that he took no positive steps to discuss his visa status with the Department for over 12 months. 

21. Therefore, I give this consideration some weight in favour of cancelling the visa.

    What degree of hardship may be caused if Mr Singh’s visa is cancelled?

22. I have considered the potential for financial, psychological, emotional and other hardships that Mr Singh may suffer if his visa is cancelled. Mr Singh’s evidence at the hearing was that he has accrued significant debts to his brother and to friends to enable him to pay rent over the past 2 years.  He explained to the Tribunal that he takes his meals at his local Sikh temple, without charge, because he cannot afford to buy food and provide for himself.  Mr Singh has suffered significant financial hardship already, by exhausting the savings of his parents in India and by having been unable to obtain work since Deimos Technologies ceased operating in late 2019.

23. In my opinion, Mr Singh has and will continue to suffer emotional and psychological hardship if his visa is cancelled.  He has not revealed the truth of his circumstances to his wife who continues to reside in India.  At the hearing, Mr Singh explained that he wishes for his wife to join him in Australia, and has been telling her she cannot come due to the lack of flights during the Covid-19 pandemic.  Mr Singh also explained that had he understood the true situation with Deimos Technologies, he either would not have returned to Australia after his wedding, or he would have taken the necessary steps to secure new sponsorship prior to returning.  It is clear to me that Mr Singh is emotionally and psychologically affected by his experience with Deimos Technologies.  He has unpaid wages and unpaid superannuation that he is unlikely to recover.  His emotional and psychological wellbeing will continue to be adversely impacted if his visa is cancelled.

24. Therefore, I give this consideration some weight against cancelling the visa.

    In what circumstances did the ground for cancellation arise?

25. Mr Singh’s visa was cancelled because his sponsor had its sponsorship approval cancelled and was barred from sponsoring temporary visa holders for 36 months. The circumstances leading to the ground for cancellation arising were beyond Mr Singh’s control, and in the context of work shortages during the Covid-19 pandemic, he had extremely limited options to obtain new sponsorship and to mitigate the impact of the prescribed condition in r.2.43(1)(l)(iv) applying to his case.

26. Mr Singh has demonstrated his bona fide intentions to work in Australia legally, making clear attempts to secure new employment in a legal fashion.  A nomination application by SAAS Value Pty Ltd to support him for a Subclass 494 visa is before the Department.  Mr Singh has not worked since Deimos Technologies stood him down in December 2019.  I am satisfied that Mr Singh has done all he could to mitigate the circumstances leading to the ground for cancellation arising, and I am satisfied that it is not possible for him to change the outcome of the sponsorship cancellation and bar.

27. Therefore, I give this consideration some weight against cancelling the visa.

    How has Mr Singh behaved towards the Department in the past? How has he behaved during this process?

28. Mr Singh has been open and honest with the Department and with the Tribunal at review.  He gave honest answers to all questions asked at the Tribunal hearing.  He showed genuine remorse and contrition for failing to take steps himself to notify the Department when Deimos Technologies ceased his employment.  He has been respectful in his dealings with Department and the Tribunal, and has not sought to make excuses for his circumstances.

29. Therefore, I give this consideration some weight against cancelling the visa.

    Would any other visas be cancelled as a consequence of cancelling Mr Singh’s visa?

30. Mr Singh does not have any dependents listed on his Subclass 457 visa. His evidence is that his wife continues to reside in India. There would be no consequential cancellations under s.140 of the Act, and so I give this consideration a little weight in favour of cancelling the visa.

    What are the legal consequences of cancelling Mr Singh’s visa?

31. A decision to cancel Mr Singh’s visa means he may become an unlawful non-citizen who may be liable for detention under s.189 of the Act and removal from Australia under s.198 of the Act. He would also be affected by s.48 of the Act, which would severely limit his options to apply for further visas while in Australia.

32. Therefore, I give this consideration a little weight against cancelling the visa.

    Does Australia have any international obligations that may arise if Mr Singh’s visa was cancelled?

33. Mr Singh has not made any claims that he fears for his safety or that of his family if his visa is cancelled and he returns to India.  There is no evidence before the Tribunal to suggest that any of Australia’s international obligations would be engaged if Mr Singh’s Subclass 457 visa is cancelled.  Therefore, I give this consideration a little weight in favour of cancelling the visa.

    Are there any other relevant matters the Tribunal should consider?

34. Mr Singh has not identified any other matters of relevance for the Tribunal to consider.  His wife resides in India and her migration status is not impacted by the Tribunal’s decision in this case.  Mr Singh and his wife do not yet have any children.  The Tribunal is satisfied that no other relevant matters warrant consideration at the time of the Tribunal’s decision.

    Conclusion

35. Considering the circumstances as a whole, I have decided that Mr Singh’s visa should not be cancelled.

    DECISION

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

    Mary Sheargold
    Member