Kethireddy (Migration)

Kethireddy (Migration) [2018] AATA 279 (2 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Uday Bhaskar Reddy Kethireddy
Ms Susmitha Yarram
CASE NUMBER:  1619968
DIBP REFERENCE(S)  BC2016/1837748
MEMBER:L. Hawas
DATE:  2 February 2018
PLACE OF DECISION:  Melbourne
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 applicant.

Statement made on 02 February 2018 at 3:28pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Working in a business not the sponsor – Sponsor no longer lawfully operating – Applicant ceased work over 90 days – Applicant working for another business – Further sponsorship unapproved – Applicant’s name on staff contacts list – Applicant’s awareness of work conditions of his visa
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994, r 2.12
CASES
Chow v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1459
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
Application for review

This is an application to review a decision dated 22 November 2016 made by a delegate of the Minister for Immigration to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (Act).
The first applicant’s visa was subject to condition 8107(3)(a)(ii)(B), which provided that the first applicant must work only in a position in the business of his approved standard business sponsor or an associated entity of the sponsor. The delegate cancelled the first applicant’s visa under s.116(1)(b) of the Act because he breached condition 8107(3)(a)(ii)(B) by working in a business that was not that of the sponsor or an associated entity of the sponsor. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to remain cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before the Tribunal is the decision cancelling the first applicant’s visa. The second applicant’s visa was automatically cancelled as a consequence of the first applicant’s visa cancellation. Accordingly, the second applicant’s visa was not cancelled by decision but by force of the operation of s.140(1) of the Act. The cancellation of the second applicant’s visa was self-executing on the cancellation of the first applicant’s: 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 second applicant’s visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to it.
For the following reasons, the Tribunal has concluded that the decision to cancel the first applicant’s visa should be affirmed.
Evidence before the Tribunal
The delegate’s decision
The delegate’s decision record dated 22 November 2016, which the first applicant gave to the Tribunal in the review, recorded the following:
(a)On 20 November 2013, the first applicant was granted a temporary business entry (class UC), temporary work (skilled) (subclass 457) visa, which was to remain current for four years until 20 November 2017;
(b)The standard business sponsor who sponsored the first applicant for his 457 visa was Audelight Pty Ltd (Audelight);
(c)The first applicant’s 457 visa contained condition 8107(3)(a)(ii)(B). The occupation listed in Audelight’s approved nomination was not specified in the written instrument referred to in condition in 8107(3A), and did not exempt the first applicant from having to comply with that condition;
(d)On 24 May 2016, Auspegasus Pty Ltd trading as Alamanda Café and Providore lodged an application to nominate the first applicant;
(e)On 8 November 2016, department officers conducted a site visit at the Alamanda Café premises at 2-10 Paradise Parade, Point Cook. At that time, and at the time the delegate cancelled the first applicants visa (22 November 2016), Auspegasus’ nomination application was still pending;
(f)During the site visit, the department officers observed:
(i)Letters from satisfied customers thanking the first applicant for his customer service were affixed to a cork board next to the entrance to the kitchen;
(ii)A staff contact list was displayed in the premises containing the first applicant’s name and mobile phone number along with the date 15/04/2016 next the first applicant’s name;
(g)The department officers interviewed the first applicant during the site visit but the content of the interview was not set out in the delegate’s decision. The delegate stated that ‘it was established that [the first applicant] had been working for……… Auspegasus prior to the nomination being approved’.
(h)By notice of intention to cancel the first applicant’s visa dated 11 November 2016, the department notified him that there were grounds to cancel his visa for breach of condition 8107(3)(a)(ii)(B). The notice sought a written response;
(i)The first applicant responded in writing by a letter dated 17 November 2017. Alice Zhuang, Audelight’s principal, also submitted to the department a letter dated 19 November 2019 in response the notice;
(j)After considering the evidence before her, the delegate concluded that the first applicant was working in the business of Auspegasus, which was not that of Audelight being the first applicant’s approved standard business sponsor;
(k)On those grounds, the delegate found that the first applicant had breached condition 8107(3)(a)(ii)(B) of his visa; and
(l)The delegate then concluded that the appropriate exercise of her discretion required her to cancel the first applicant’s 457 visa under s. 116(1)(b) of the Act as of 22 November 2016.
On 25 November 2016, the first applicant applied to this Tribunal for a review of the delegate’s decision to cancel his visa.
The written evidence before the Tribunal
Before the hearing, the first applicant submitted to the Tribunal an undated ‘statement of purpose’ setting out his positon in this review. The statement contained much of the same information and submissions as his response dated 17 November 2016 to the department’s notice of intention to cancel his visa. In his statement of purpose and his 17 November 2016 response to the department, the first applicant stated:
(a)He was aware of the conditions of his visa, including condition 8107 imposing work limitations;
(b)He worked for Audelight trading as Outback Jack’s Bar & Grill in the positon of restaurant or café manager from about November 2013 until Audelight sold the business;
(c)On 24 May 2016, Auspegasus applied to nominate him for a 457 visa. That application to nominate followed Audelight selling its business and the first applicant ceasing work with that company;
(d)Zhuang is in a relationship with Edison Pang, Audelight’s principal. On 24 April 2016, Zhuang and Pang had a baby boy. Up until the time she gave birth to her son, Zhuang had managed Auspegasus’ Alamanda Café business. After her son was born, Zhuang had to wind back her management duties to look after her son. She required a new manager to run the café in her place. She offered the role to the first applicant and subsequently Auspegasus applied to nominate him for a 457 visa;
(e)On 8 November 2016 when the department officers conducted the site visit at the Alamanda Café, Zhuang was not there but the first applicant was. On that day, Zhuang was attending to her son who was suffering under a medical emergency;
(f)During the site visit, the first applicant introduced himself to the department officers (rather than flee) and spoke to them. He explained why Zhuang was not at the café;
(g)The first applicant was not working for Auspegasus in the Alamanda Café at the time of the site visit, nor had he worked there at any time after ceasing work for Audelight. At the time of the site visit, the first applicant was observing the operation of the Alamanda Café in preparation for commencing work once his new nomination had been approved. He had been to the café a few times before just to observe. He observed the make-up of the café clientele, the trading patterns such as the busy and slow times of the day, and the lay-out of the café;
(h)He explained the written references on the cork board and the staff contact list as follows:
(i)The references were letters he had received from customers of Audelight (Outback Jacks) during his work there, not from customers of the Alamanda Café. Zhuang fixed the letters to the cork board to inform staff of the high calibre of its incoming café manager, and to demonstrate to the staff the service standards to which they should aspire; and
(ii)His name and phone number appeared on the staff contact list only because he was the incoming manager not the current manager. The date 15/04/2016 next to the first applicant’s name on the list represented the day and month of his birth. The year of his birth was replaced with the current year to keep confidential his real birth date. Other people on the list had their birthdates altered in the same way.
The first applicant also submitted:
(a)Copies of the passports of two other employees at the Alamanda Café whose names and contact details appeared on the staff contact list. Those people had dates next to their names. For each of those employees, the day and month of their births was recorded in the date next to each of their names but the year was 2016. The copy passports made that out. Of the 12 people on the staff contact list, only three had dates written next to their names; the first applicant and the other two people whose copy passports the first applicant gave to the Tribunal to support his explanation for the dates;
(b)The written references that were fixed to the cork board and the staff contact list. The references themselves did not make clear whether they were from customers of Outback Jacks or the Alamanda Café. The staff contact list was headed ‘staff contacts’;
(c)Audelight and Auspegasus pay and financial records presumably to establish that he was not working in the Alamanda Café for Auspegasus before 1 May 2017. That was the date the first applicant maintains he commenced work for Auspegasus under his bridging visa that carried work rights;
(d)Several written references from customers of the Alamanda Café, in which the referees vouched for the first applicant’s capacity to manage the café and his friendly customer service; and
(e)Documents showing Audelight sold its Outback Jacks business, which sale settled on 23 February 2016.
Before the hearing, Zhuang submitted to the Tribunal a letter dated 29 November 2017 in support of the first applicant. The letter contained similar information and submissions to her letter to the department dated 19 November 2016 in response to the notice of intention to cancel the first applicant’s visa. Zhuaung supported the first applicant’s explanation for why she was not at the Alamanda Café during the department’s site visit on 8 November 2016. She sought to explain the existence of the references on the cork board and the first applicant’s contact details on the staff contact list in a similar way to the first applicant. She stated that the words ‘staff contacts’ in the list’s heading were not meant literally. She compiled the staff contact list to make important calls quickly and at short notice, and to remind her of staff birth dates so that she could buy them cards and gifts on their birthdays. She stated that the first applicant had proved to be a capable restaurant manager after commencing management of the café after obtaining his bridging visa. She stated that the business would be affected adversely if the first applicant could not continue working there, especially given the difficulties she had encountered in the past in finding a capable restaurant manager.
Evidence given during the hearing
By letter dated 21 November 2017, the Tribunal notified the applicants that it had considered the information before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to a hearing on 8 December 2017 at which time they could give oral (and any written) evidence and present their arguments.
The applicants appeared before the Tribunal on 8 December 2017 to give evidence and present arguments. The second applicant gave evidence in the first applicant’s review.
At the hearing, the first applicant gave the following evidence:
(a)He was born on 15 April 1982. He is 34 years old;
(b)Other than his wife (the second applicant) has no immediate family in Australia.
(c)In 2005, he graduated with a Bachelor in Hotel Management from Osmania University in Hyderabad, India. While studying he worked as an intern at the Taj residency, a hotel in Hyderabad. He became a food and beverage attendant at the Taj residency in 2006 and remained there for approximately a year;
(d)He came to Australia in 2008 on a student visa to study for a Masters in Business Administration at the Melbourne Institute of Technology. He graduated with that qualification in 2011;
(e)After graduating, he worked for two years as a barista at the Grand Hyatt, Melbourne;
(f)In 2013, Audelight applied to nominate him for a 457 visa in the position of a café or restaurant manager. At the time, Audelight operated an Outback Jack’s Bar and Grill steakhouse in Point Cook. The nomination was subsequently approved, and on 20 November 2013 the department granted him a 457 visa. But for its cancellation, his visa would have expired on 20 November 2017;
(g)He married the second applicant in India in 2015. The second applicant came to Australia in 2015 on a secondary 457 visa. The second applicant is yet to work in Australia;
(h)He knew that condition 8107, and particularly 8107(3)(a)(ii)(B) (or its effect), was a condition of his visa. He knew that while in Australia on a 457 visa, he could work only for his nominated employer (or an associated entity);
(i)In about February 2016, Audelight’s lease expired and it ceased trading. He ceased working for Audelight on about 23 February 2016;
(j)On ceasing work for Audelight, he began looking for work immediately. Audelight’s principal and his old boss, Pang, recommended him to Zhuang and Auspegasus. At the time, Auspegasus operated the Alamanda Café in Point Cook;
(k)In about May 2016, Auspegasus offered him a position as the manager of the Alamanda Café, and it applied to nominate him;
(l)He pays rent of $1,950 per month, and his other living expenses for himself and his wife are about $300 per month;
(m)He did not work for Auspegasus or any other employer after February 2016 when he ceased work for Audelight. Further, his wife (the second applicant) did not work after February 2016. He supported himself and his wife by drawing on $4,000 or $5,000 in savings, which did not last long. To continue supporting himself and his wife, he borrowed about $8,000 from his parents and sister in India, and a little over $6,000 from friends. He also drew about $10,000 on credit cards. The first applicant did not produce any written or independent evidence of his savings or debts;
(n)He did not start earning money until May 2017 when he began working for Auspegasus at the Alamanda Café. By that time, he had been granted a bridging visa with work rights pending the outcome of this review. He earns $1,050 per week gross; $850 net;
(o)He was at the Alamanda Café when the department officers conducted a site visit on 8 November 2016. He was not working for Auspegasus at the Alamanda Café at the time. He was only at the café on the day to observe. Zhuang was not at the café on the day. She was attending to her young son on the day because he was ill;
(p)There is a cork board in the café between the customer service area and the kitchen. During the department’s site visit, he noticed that references thanking him for his customer service had been fixed to the board. When Zhuang interviewed him for the Alamanda manager’s job in March or April 2016, he gave her two references he had received from customers while working at Outback Jacks thanking him for his customer service. Zhuang fixed them to the cork board. He did not know when Zhuang did that;
(q)Zhuang included his contact details on the staff contact list because she expected him to work at the Alamanda Café shortly;
(r)He told the department officers of the matters set out in the preceding two sub-paragraphs during the site visit. He also explained to them that Zhuang was not at the café because she was attending to her sick son;
(s)Before the department’s site visit, Zhuang called him on his mobile number about 10 times. She called for updates on his visa situation;
(t)After about April 2016 when Zhuang offered him the Alamanda job, he went to the Alamanda Café about once a week to say hello or have a coffee. On two or three occasions, he went to the café to observe the functioning of the café. When observing, he would just sit down and watch, and sometimes take notes. He observed the layout of the café, how staff greeted customers, and how they took orders and served customers. He also observed how the café operated in a different way to Outback Jack’s. When observing, he was at the café for two or three hours at a time;
(u)Auspegasus applied to nominate him for a 457 visa in about May 2016. It withdrew that application on 21 December 2016 after the department cancelled his visa;[1]
(v)If the Tribunal sets aside the delegate’s decision to cancel his visa, he will return to India. Auspegasus will apply again to nominate him while he is offshore, and he will await the outcome of that application from offshore;
(w)He is an honest person, and a competent and successful restaurant manager who was respected by his former employer (Audelight), and sought after by his proposed new one (Auspegasus). He fears that the cancellation decision reflects unfairly on his character and competence. By her cancellation decision, the delegate concluded that the fist applicant was working unlawfully for Auspegasus, when in truth he was not working for the company at the time. Also, he had been told that having had a visa cancelled would impact negatively on his future visa applications, including Auspegasus’ proposed application to nominate him from offshore. Further, he fears that a decision-maker will be more likely to refuse a future application related to him if he has had a visa cancelled in the past. Furthermore, he fears that the cancellation of the second applicant’s visa as a consequence of the cancellation of his visa might affect any future visa applications the second applicant might want to make. For example, she might want to apply for a student visa in future, and having had a visa cancelled might impact any such future application negatively. For those reasons, he wants the cancellation decision set aside; and
(x)If he must return to India he will suffer financial hardship. He incurred debts between February 2016 and May 2017 when he was not working. If he returns to India, he will earn less than he will in Australia and it will take him longer to repay his debts. He accepted that choosing to remain in Australia after he ceased work in February 2016 and after his visa was cancelled in November 2016 increased his indebtedness.
[1] After the hearing, the first applicant sent the Tribunal a letter dated 21 December 2016 from the department to the Auspegasus, which provided that the company had withdrawn its application to nominate the first applicant.

The Tribunal suggested to the first applicant that even if he was not working for Auspegasus at the Alamanda Café in early November 2016, and he did not breach condition 8107(3)(a)(ii)(B) of his visa, because he ceased work with Audelight on 23 February 2016 and did not resume work with that company (or an associated entity) within 90 days, he breached the 90 day condition of his visa (condition 8107(3)(b)). The first applicant said that he was aware of the 90 day condition but he did not breach it because he located another job with Auspegasus, and it applied to nominate him, within 90 days of 23 February 2016.
The second applicant gave evidence in the first applicant’s review. She said that he was not working for Auspegasus at the Alamanda Café on 8 November 2016 when the department conducted its site visit. She said the Tribunal should set aside the decision to cancel the first applicant’s visa because she was upset that the cancellation might affect her future in Australia with the first applicant. She said that if the Tribunal sets aside the cancellation decision she still want to stay in Australia with her husband.
Zhuang gave evidence for the first applicant. She that:
(a)She is a director and shareholder of Auspegasus, which company owns and operates the Alamanda Café in Point Cook;
(b)From about 2015 to May 2017, she managed the café day-to-day. During that time, she was at the café every day. She ceased managing the café in May 2017 when the first applicant commenced management;
(c)She met the first applicant about two years ago when he was working at Outback Jacks;
(d)Her son was born in April 2016. After the birth of her son, she sought to reduce the time she spent working at the Alamanda Café. She sought another café manager. Her partner Edison Pang, the principal of Outback Jacks (Audelight) referred the first applicant to her because the first applicant was looking for work after Outback Jacks was sold. Subsequently, she offered the first applicant the job of managing the Alamanda Café;
(e)After she offered the first applicant the management job (and after the first applicant accepted), she (or Auspegasus) lodged an application to nominate him;
(f)After about April 2016, the first applicant came into the Alamanda Café to observe its operation a few times a week. She did not know how long he stayed on each occasion. He come in randomly and unannounced. Sometimes he would tell her he was coming in beforehand and sometimes he would not;
(g)She compiled the staff contact list. She included the first applicant on the list because she had told the staff that the first applicant would manage the Alamanda Café in future. She only called him once or twice before 8 November 2016 (the time of the site visit). She did not call him regularly;
(h)She put the first applicant’s Outback Jacks references on the cork notice board to show the employees the caliber of their future manager. She wanted to present him as a role model.
(i)On 8 November 2016 when the department conducted the site visit, the first applicant was at the restaurant but he was not working there. He was there observing the customer base, the general functioning of the café, and what the employees did;
(j)Since May 2017 when the first applicant commenced managing the Alamanda Café, he has proved to be a very good café manager. Since he commenced, revenue has increased, and he has established a good rapport with the customers; and
(k)If the first applicant returns to India, Auspegasus will still apply to nominate him as the Alamanda Café manager. She will return to managing the café until the first applicant can re-commence his position.
Pang also gave evidence for the first applicant. He said that:
(a)He was a director of Audelight, and through his company held 20% of the Audelight shares;
(b)Audelight had an interest (within an overall partnership) in a franchised Outback Jacks steakhouse, which traded in Point Cook. In about November 2013, Audelight employed the first applicant as the restaurant manager of its Point Cook steakhouse, and it successfully nominated him for a 457 visa at about that time. Subsequently, the first applicant worked as the restaurant manager of the Point Cook Outback Jacks;
(c)On 23 February 2016, the partnership that owned the Point Cook Outback Jacks sold the business. The new owner continued to trade from the same location but converted the business to an Indian Restaurant trading under another name;
(d)When the partnership sold the Outback Jacks business, he told the buyer that his restaurant manager (being the first applicant) was on a 457 visa, and he asked the new owner whether he would be prepared to keep the first applicant employed in that role (and to apply to nominate him if necessary). The buyer told him that he did not want to employ anybody on a 457 visa;
(e)The first applicant was a very good restaurant manager, and became his good friend. When his partner (Zhuang) told him that she needed somebody to manage the Alamanda Café, he was happy to refer the first applicant to her; and
(f)He does not have any ownership interest in the Alamanda Café (or Auspegasus). He helps out at the café occasionally.
Consideration of claims
Does the ground for cancellation exist?
Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, those 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 proper exercise of the discretion requires the visa to be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
The Minister or the Tribunal may cancel a visa under s.116(1)(b) of the Act if satisfied that the holder did not comply with a condition of the visa. Here, the first applicant’s visa contained condition 8107(3)(a)(ii)(B), which provided that the first applicant must work only in a position in the business of the sponsor or an associated entity of the sponsor.[2]
[2] The department’s records on the Integrated Client Services Environment (ICSE) confirm that the first applicant’s visa was subject to condition 8107.
During the hearing, the first applicant said that he was not working for Auspegasus at the Alamanda Café on 8 November 2017 when the department officers conducted their site visit, and he did not work at the Alamanda Café at any time before May 2017 when he was granted a bridging visa with work rights. He said he was only at the café observing on the day of the site visit. Accordingly, he did not breach condition 8107(3)(a)(ii)(B) as the delegate found, and the delegate did not have lawful grounds to cancel his visa.
Given the first applicant’s written and oral evidence, the Tribunal must determine whether the first applicant working for Auspegasus at the Alamanda Café before 22 November 2016 when the delegate cancelled his visa, and if so, whether that constituted a breach of condition 8107(3)(a)(ii)(B) of his visa.
The starting point for determining whether the first applicant breached condition 8107(3)(a)(ii)(B) must be an analysis of the visa condition’s proper operation. The condition provides that the visa holder must ‘work only in a position in the business of the sponsor or an associated entity of the sponsor’.
The reference to the ‘sponsor’ in the visa condition is to Audelight being the first applicant’s approved sponsor. If the Tribunal finds that the first applicant worked for Auspegasus in the Alamanda Café before 22 November 2016 when his visa was cancelled, he will have worked in a position in a business of an employer that was not his sponsor. That would constitute a breach condition 8107(3)(a)(ii)(B).
Central to condition 8107(3)(a)(ii)(B) is the concept of ‘work’. The Oxford English Dictionary provides that the meaning of ‘work’ includes:
‘Action, labour, activity; an instance of this.’
………
‘Action or activity involving physical or mental effort and undertaken in order to achieve a result, esp. as a means of making one's living or earning money; labour; (one's) regular occupation or employment.’[3]
[3] Oxford English Dictionary, 2^nd ed, Oxford University Press.
‘Work’ appears in condition 8107(3)(a)(ii)(B) of a 457 visa, which visa provides for an employer to fill a skilled positon with an overseas employee if it cannot fill the positon with a local one. Accordingly, the Tribunal considers ‘work’ in condition 8107(3)(a)(ii)(B) takes on meaning in an employment context. The word has a meaning similar to the employment related meaning in the Oxford Dictionary definition set out in the preceding paragraph.
For the first applicant to have breached condition 8107(3)(a)(ii)(B), he must have been employed by Auspegasus in some capacity, or he must have been receiving pay or reward in return for his work. It follows that ‘work’ does not include attending at the Alamanda Café to observe with a view to taking up paid work in the future, being the first applicant’s account of what he was doing at the café during the department’s site visit.
As the Tribunal understands the delegate’s decision, she relied primarily on the following evidence to conclude that ‘it was established that [the first applicant] had been working for………Auspegasus prior to the nomination being approved’, and that the first applicant had breached condition 8107(3)(a)(ii)(B) of his visa:
(a)The first applicant’s customer references displayed on the cork board;
(b)The staff contact list containing the first applicant’s name, mobile telephone number, and the date 15/04/2016; and
(c)The interview the department officers conducted with the first applicant during the site visit.
Representatives of the department did not appear at the hearing to give evidence of exactly what the officers who conducted the site visit observed, and what the first applicant told them, during the visit. Also, the Tribunal does not have before it a report of all the department’s officers observed and heard during the visit. The content of the notice of intention to cancel dated 22 November 2016 and the delegate’s decision constitute the only evidence from the department’s side the Tribunal has before it of what the site officers observed and heard during the visit. The notice of intention to cancel contained the same information about the site visit as that set out in the delegate’s decision. Those documents do not contain any account of what the first applicant said to the department’s officers during the visit. The Tribunal has heard from the first applicant on the matter though, and it has read and considered his written evidence about the visit. The lack of evidence from the department makes the Tribunal’s task more difficult but it must grapple with the issue all the same.
Doing its best in all the circumstances, the Tribunal finds that the first applicant was working for Auspegasus in its Alamanda Café business in some capacity – probably as the café manager – before the delegate cancelled the first applicant’s visa on 22 November 2016. By doing so, the first applicant breached condition 8107(3)(a)(ii)(B) of his visa because Auspegasus was not his approved standard business sponsor at the time.
The Tribunal notes the lack of written evidence before it of Auspegasus paying the first applicant for his work before 22 November 2016. The payroll and financial records of Audelight and Auspegasus do not reveal that Auspegasus paid the first applicant before May 2017 when he said he commenced work for that company on his bridging visa. But the lack alone of evidence of pay before 22 November 2016 does not establish that the first applicant did not work for Auspegasus in the Alamanda Café during that time. Auspegasus might have paid the first applicant for his work and evidence of the pay might not be before the Tribunal. The lack of pay evidence is one matter the Tribunal has taken into account. But the Tribunal points to four matters that individually and in combination outweigh the lack of pay evidence and establish, on balance, that the first applicant worked for Auspegasus in the Alamanda Café before his visa was cancelled.
First, the ‘staff contacts’ list including the first applicant’s name and mobile telephone number the department’s officers found at the Alamanda Café on 8 November 2016 supports a conclusion that the first applicant worked for Auspegasus – he was a member of the café staff – at the time. His name and mobile telephone number appeared on that list with other staff members of the café. In his evidence, the first applicant did not say that some of the other people on the list were not staff members of the café as of 8 November 2016.
Zhuang stated in written evidence that she compiled the list so she could call people at short notice. The first applicant and Zhuang said that the first applicant’s name appeared on the list only because he was the prospective or incoming manager. The Tribunal does not accept those explanations.
The first applicant and Zhuang did not explain why it was necessary to include the contact details of a potential or future employee on a contact list of current staff members or employees at the café. They did not provide any evidence of some practice by Auspegasus of including the contact details of potential staff members or employees on a staff contact list, and they did not give any evidence of Auspegasus having done this in the past.
The first applicant and Zhuang gave some conflicting evidence of how many times Zhuang called the first applicant before the site visit. The first applicant said that Zhuang called him about 10 times to enquire about his visa situation. Zhuang said that she did not call him regularly – only two or three times. If Zhuang only found it necessary to call the first applicant as a potential or future employee two or three times, the need to include his contact details on the staff contact list becomes somewhat elusive.
The first applicant said that he went to the Alamanda Café about once a week to have coffee and say hello, and he attended two or three times for a few hours at a time to observe. Zhuang said that he attended at the café to observe more regularly: a few times a week. If Zhuang needed to speak to the first applicant about his visa status – a relatively discrete issue – or some other matter about his potential employment, she had ample opportunity to do so during one of his regular visits to the café. In those circumstances, it becomes difficult to accept that Zhuang included the first applicant’s name on the staff contact list just to call him every now and again about his visa standing or about his potential employment.
Why Zhuang would need to call the first applicant, as a potential or future employee who attended at the café regularly, at short notice, quickly, or urgently (justifying his inclusion on the list) also remained unexplained. Further, Zhuang did not say that the only place the first applicant’s number was recorded was on the staff contact list. If she really needed to call him about something, she could have called him without recording his name on a list of staff contacts.
The first applicant (and Zhuang) did not otherwise provide a plausible explanation for why the first applicant’s name appeared or was necessary on the ‘staff contacts’ list if he was not working at the café at the time.
The first applicant and Zhuang both said that the date ‘15/4/2016’ appearing next to the first applicant’s name on the staff contact list represented his day and month of birth and the year was the current year at the time the list was compiled. Zhuang said that she noted the day and month of birth so that she remembered to buy her staff cards or gifts on their birthdays. She substituted the year of birth for the current year to disguise the relevant staff-member’s age. The Tribunal is prepared to accept that the date 15/4/2016 appearing next to the first applicant’s name on the staff contacts list represented his date and month of birth, and 2016 represented the then current year. But the Tribunal considers that if anything, that evidence runs against the first applicant’s position in this review.
Including the first applicant’s day and month of birth on a staff contact list along with the day and month of birth of other employees for the purpose of Zhuang remembering to buy her staff birthday cards and gifts supports a conclusion that the first applicant worked for Auspegasus at the Alamanda Café – he was a staff-member – more than it does the opposite conclusion. The evidence demonstrates that Zhuang was prepared to treat (or treated) the first applicant to birthday wishes in same way as other staff members. Zhuang did not explain why she would extend such a courtesy to a potential or future employee who might not ultimately work at the Alamanda Café if the then pending nomination by Auspegasus were not approved. Pang said that the first applicant became a personal friend of the first applicant’s. That could have explained why Zhuang, as Pang’s partner and mother of his son, was prepared to treat the first applicant to birthday wishes otherwise reserved for staff but that was not offered by any of the witnesses as a reason for including the first applicant’s name and birthday details on the staff contact list.
The Tribunal finds that the more likely explanation for the first applicant’s name and mobile telephone number appearing on the staff contact list to be that he worked for Auspegasus in the Alamanda Café before 22 November 2016.
Second, the Tribunal considers that the customer references given to the first applicant appearing on the cork board in the Alamanda Café supports a conclusion that he worked for Auspegasus in the Alamanda Café before 22 November 2016. Even if the Tribunal accepts that the references were given to the first applicant by customers of Outback Jacks rather than those of the Alamanda Café (the references did not disclose the source of the customers), it considers their source to be of limited moment. That customer references were displayed in the Alamanda Café –no matter their source – is of more substance. As a matter of logic, customer references given to a manager will be displayed in the business that the manger administers. The Tribunal does not accept that the references were displayed only to demonstrate to the café staff the calibre of the incoming manager, the service standards to which they should aspire, or those that the incoming manager expects. The first applicant and Zhuang did not explain how displaying references given to a potential café manager (who might not ultimately manage the café if his then pending nomination were not approved) would be effective to send the intended message to staff or why the message was necessary.
The Tribunal finds the more likely explanation for the written references being displayed on the cork board in the Alamanda Café to be that the first applicant worked for Auspegasus in the Alamanda Café before 22 November 2016.
Third, the Tribunal considers the first applicant’s presence at the Alamanda Café, and Zhuang’s absence, at the time of the department’s site visit to be more than a coincidence. The first applicant said that Zhuang was not present because she was attending to her ill newborn son at the time. The first applicant adduced some written evidence of the son’s condition. But even if the Tribunal accepts the explanation for Zhuang’s absence, it does not explain the first applicant’s presence at the café in a capacity that was, on his own evidence, not of a customer.
The first applicant said that he was at the Alamanda Café during the site visit to observe the functioning of the café in preparation for taking up his position later as café manager. The Tribunal does not accept that explanation. Zhuang said in evidence that in April 2016 she offered the first applicant the job as café manager. On her evidence, there was no prospect that the position would cease to become available to him. She was just waiting on Auspegasus’ nomination to be approved. All the witnesses said that the first applicant was an exceptional café manager. The first applicant said that he aspired to the highest standards of customer service. Zhuang and Pang were glowing about the first applicant’s ability as a restaurant manager. In those circumstances, it is difficult for the Tribunal to accept that such an experienced and competent café manager in the eyes of his former and future employer, whose future job was effectively guaranteed, would need to observe the functioning of a café for hours at a time before taking up his position.

The Tribunal considers the more likely explanation for the first applicant’s presence at the café on 8 November 2016 to be that he worked there at the time.
Fourth, the first applicant and his wife do not have any immediate family in Australia. They are here on their own. The first applicant’s wife did not work in 2016, and the first applicant supported her. He said he had $4,000 or $5,000 in savings, which he quickly spent on living expenses after ceasing work at Outback Jacks. When he exhausted those savings, he borrowed about $24,000 from family, friends, and on credit cards. On his evidence, the first applicant supported himself and his wife for about 15 months between February 2016, when he ceased work at Outback Jacks, and May 2017, when he commenced work at the Alamanda Café, on about $30,000.
Plainly, the first applicant required additional income to continue supporting himself and his wife after ceasing work at Outback Jacks. On his evidence, he had relatively meagre savings, which was not going to (and did not) last long, and he needed additional income from some source. The Tribunal considers the more likely explanation for the first applicant continuing to support himself and his wife after February 2016 to be that he worked for Auspegasus in the Alamanda Café after about March or April 2016 when that company offered him the café manager’s job.
Although the first applicant did not tender any evidence of savings such as a bank statement, the Tribunal is prepared to accept that had some savings when he ceased work at Outback Jacks in February 2016. He had worked there since November 2013 and one would expect some savings after such a long period of work. $4,000 or $5,000 sounds plausible. But in the circumstances, the Tribunal is not prepared to accept that the first applicant borrowed about $24,000 to pay for living expenses, or that he supported himself and his wife for about 15 months on about $30,000 ($4,000 or $5,000 in savings and about $24,000 in borrowed money).
Apart from his say so, the first applicant did not produce any evidence of borrowing $24,000. He could easily have adduced such evidence by producing bank records, credit card statements, money transfer documents, and calling evidence from his creditors.
Further, the first applicant did not produce any evidence that he was able to support himself and his wife for about 15 months on $30,000, or that he did so while paying rent of $1,950 a month (or some other amount of private rent). That is difficult to accept on say so alone. If he paid $1,950 a month in rent for the 15 or so months between February 2016 and May 2017, he would have paid about $29,250 being almost all the approximately $30,000 he had available to him. He said that living expenses for himself and his wife, including for the roughly 15 months out of work were about $300 per month, being a total of $4,500. Australian living expenses must cover at least groceries and food, travel expenses, utility bills, phone and internet bills, insurance (if any), clothing expenses, and anything unexpected. The Tribunal is not prepared to accept on say so alone that the first applicant supported himself and his wife on $4,500 for about 15 months after paying rent.
Accordingly, on the evidence before the Tribunal, it finds that:
(a)The first applicant’s 457 visa was subject to condition 8107, and more particularly condition 8107(3)(a)(ii)(B). The visa was granted on 20 November 2013, and would have, but for its cancellation, remained effective until 20 November 2017;
(b)The first applicant ceased employment with Audelight on 23 February 2016;
(c)Sometime after 23 February 2016 and before 22 November 2016 when his visa was cancelled, the first applicant worked for Auspegasus in its Alamanda Café business;
(d)By doing so, he did not work only in the business of the sponsor or an associated entity of the sponsor as condition 8107(3)(a)(ii)(B) requires; and
(e)As a result, the first applicant breached condition 8107(3)(a)(ii)(B) of his visa.
By reason of the matters set out above under this heading, the Tribunal is satisfied that the grounds for cancelling the first applicant’s visa have been made out.
Further, visa condition 8107(3)(b) of the first applicant visa required him not to cease work with his approved sponsor Audelight for more than 90 consecutive days. The first applicant said that he ceased work with Audelight on 23 February 2016 and he did not resume work with that company or an associated entity at any time in the following 90 consecutive days. That constitutes a breach of condition 8107(3)(b) of his visa. The first applicant said that he did not breach that condition of his visa because within 90 days of 23 February he had secured a job offer from Auspegasus, and that company had applied to nominate him. Contrary to the first applicant’s submission, Auspegasus’ offer to employ him and its nomination application does not avoid a technical breach of condition 8107(3)(b) of his visa. A job offer and a nomination application by Auspegasus does not constitute continued work with Audelight as condition 8107(3)(b) effectively required. The first applicant’s submissions go only to the appropriate exercise of the Tribunal’s discretion. That is taken up below.
As those grounds do not require mandatory cancellation of the first applicant’s visa under s. 116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.
The discretion
The Act and the Migration Regulations 1994 (Regulations) do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to a matter outside of PAM3 so long as the matter is relevant.[4] However, PAM3 constitutes a useful starting point for the exercise of the discretion.
The purpose of the first applicant’s travel to and stay in Australia
[4] See Brennan J in Re Drake (No. 2) (1979) 2 ALD 634. The courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459.
Although the first applicant initially came to Australia to study, the purpose of his continued stay here from 20 November 2013, when his 457 visa issued, was to work for the life of the visa as a restaurant manager for Audelight, being his approved standard business sponsor. If it was not cancelled on 22 November 2016, the first applicant’s visa would have expired on 20 November 2017. The first applicant remains in Australia on a bridging visa with work rights. As things have turned out, he has remained in Australia for the life of his visa had it remained in force.
The first applicant said that he proposed to return to India and await the outcome of Auspegasus’ proposed fresh application to nominate him for a new 457 visa.
Accordingly, the purpose of the first applicant’s stay in Australia under a 457 visa has expired. That weighs heavily against the first applicant in this review. It may be revived if the first applicant can secure a fresh nomination by Auspegasus or another employer from offshore but that remains to be seen.
Circumstances in which the ground for cancellation arose
The Tribunal accepts that Audelight sold its Outback Jacks business on 23 February 2016, and the company ceased to have an interest in the business, and to trade, from that date. From 23 February 2016, Audelight ceased to have the capacity to employ the first applicant. Plainly, the circumstances in which the first applicant ceased work for Audelight were beyond his control.
The Tribunal understands that it would then have been tempting for the first applicant, given his circumstances, to commence work for Auspegasus in the Alamanda Café as soon as possible after he ceased work for Audelight. But he could also have refrained from working in the Alamanda Café until after Auspegasus’ nomination application had been approved. That was the first applicant’s choice. The Tribunal has found that he chose the former course. That weighs against the first applicant in this review.
Extent of compliance with visa conditions and co-operation with the department
As set out in paragraph 52 above, apart from breaching condition 8107(3)(a)(ii)(B) of his visa, the first applicant breached condition 8107(3)(b) by ceasing work with Audelight for more that 90 consecutive days. But the Tribunal does not weigh that breach against the first applicant. Audelight selling its interest in the Outback Jacks business and ceasing to have the capacity to employ the first applicant was beyond his control. Further, the first applicant was able to secure a fresh employment offer and nomination from Auspegasus quickly after ceasing work. The Tribunal weighs that in the first applicant’s favour.
There is no evidence before the Tribunal to the effect that the first applicant has failed to co-operate with the department. The Tribunal weighs that in the first applicant’s favour.
Hardship caused to the first applicant and his family
The first applicant pointed to financial hardship if he returns to India. He said that he had incurred debts in Australia and it would take him longer to repay those debts from India. The first applicant accepted that his choice to remain in Australia after his visa was cancelled exacerbated his debt problem at least until he commenced work lawfully at the Alamanda Café in May 2017.
The first applicant’s hardship arguments were focused more on his concern that that the visa cancellation will impede his return to Australia on a fresh nomination and 457 visa.
The Tribunal gives some weight in the first applicant’s favour to his hardship argument about taking him longer to repay debt from India but that weight is limited. The purpose of a 457 visa is not served by allowing a visa holder to remain in Australia to earn higher Australian income in order repay debts incurred while in Australia. In any event, the first applicant’s visa has expired, and he intends returning to India voluntarily at least in the short term. He hopes to return on Auspegasus’ fresh nomination.
The Tribunal gives more weight to the first applicant’s hardship arguments that follow from his visa cancellation potentially impeding his future to return to Australia. That is taken up below.
Whether there are others whose visas would or may be cancelled under s. 140
The second applicant’s visa was cancelled consequentially because of the cancellation of the first applicant’s visa. There is no evidence that the cancellation of the first applicant’s visa would result in a breakup of the relationship between the first and second applicant. Accordingly, this consideration carries little weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s Intervention
The first applicant is currently on bridging visas with work rights pending the outcome of this review. In the absence of him making another successful visa application, or the Minister granting a visa, he will not have authority to remain in Australia once the review process has been exhausted. If that is the case, the first and second applicant will have the opportunity to depart Australia. Whilst their continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. The first applicant said that he proposes to return to India voluntarily in any event.
Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the first applicant whilst onshore. The Tribunal has taken that potential limitation on the first applicant’s future application actions into account but the issue of limited relevance. On the first applicant’s evidence, he does not propose to apply for any other visa from onshore. He proposes to apply for a new 457 visa offshore.
The first applicant said that he wanted the cancellation decision set aside because he feared it would impact negatively on Auspegasus’ proposed application to nominate him from offshore. The first applicant’s fears may be well founded because of the operation of Public Interest Criteria 4013. PIC 4013(2)(a) provides effectively that a visa application made within three years of a visa cancellation under s. 116 of the Act by a person (being the person whose visa was cancelled) who was found by Immigration to have worked without authority will be refused unless one of the stated exceptions in PIC 4013(1)(b) apply. The stated exceptions include whether there are compelling or compassionate circumstances justifying the grant of a visa notwithstanding the operation of a risk factor.
Before 22 November 2016 when the delegate cancelled the first applicant’s visa, he had the authority to work in Australia under his 457 visa but only for his nominated standard business sponsor being Audelight. He did not have the authority to work for another employer. That he worked for Auspegasus in the Alamanda Café, as the Tribunal has found, before its nomination of him was approved without the authority that approval would have carried could attract the operation of PIC 4013(2)(a). Accordingly, the first applicant could be subject to the three-year exclusion on further visa applications mandated by PIC 4013. Plainly, that could affect negatively Auspegasus’ (and any other employer’s) proposed nomination of the first applicant for a 457 visa (or one of the new temporary entry work visas) if made within three years from 22 November 2016 when the delegate cancelled the first applicant’s visa.
The Tribunal has taken into account the potential restriction in PIC 4013 on the first applicant’s future Australian visa applications and weighed the issue heavily in his favour. The Tribunal does not have sufficient evidence before it to assess whether the first applicant is likely to avail himself of an exception to the Criteria’s operation such as compelling or compassionate circumstances justifying a further visa grant. But the Tribunal has taken into account the possibility that the first applicant will not be able to make out an exception to the operation of the Criteria. The Tribunal has also weighed that heavily in the first applicant’s favour.
But to be balanced against those matters is the plain intent of the Criteria to restrict future entry into Australia of people affected by the stated risk factors. If the first applicant is affected by the working without authority risk factor, then the Criteria intends the consequent restriction to apply to him. That also must be considered in this review.
The first applicant also said that a department decision maker would be more likely to refuse a future visa application if he had been the subject of a cancelled visa in the past. The first applicant spoke of a more general human dimension or trait to refuse applicants who had been troublesome in the past. The Tribunal rejects that argument. There is no evidence before it to make out the first applicant’s more general fear that a decision maker will be more likely to refuse his future applications only because his visa was cancelled.
74. The first applicant said that he wanted the cancellation decision set aside because it could impact negatively the second applicant’s future visa applications to Australia. As already stated, the second applicant’s visa cancelled consequentially on the cancellation of the first applicant’s visa, not by reason of a deliberate cancellation decision related to her. She will not be impacted by PIC 4013. But any visa application the first applicant makes consequent to the second applicant being granted a visa could be impacted by the operation of PIC 4013 and the Tribunal has taken that into account.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
In considering whether to exercise its discretion to cancel the first applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
Before the hearing, there was nothing in the documents before the Tribunal that would have supported an argument that Australia would offend its international obligations if the first applicant returned to India with his family. The first applicant did not say anything at the hearing, and did not submit any written evidence, that would change that position.
Conclusion
The Tribunal has found that the first applicant worked for Auspegasus in the Alamanda Café before 22 November 2016 when his visa was cancelled, and by doing so he breached condition 8107(3)(a)(ii)(B) of his visa. He worked for Auspegasus in the Alamanda Café without authority from the department knowing that he was working unlawfully. The Tribunal finds the breach to be serious because of the knowing disregard by the first applicant of the work conditions of his visa.
In considering how to exercise its discretion to set aside the cancellation decision, the Tribunal has placed substantial weight against the first applicant on the serious breach of his visa conditions, and the purpose of his stay in Australia on a 457 visa now expiring. The visa would have expired now if it was not cancelled and the first applicant has remained in Australia for the life of his visa in any event. He proposes to return to India for the short term.
Balanced against that though is the potential restriction under PIC 4013 on the first applicant’s return to Australia. The Tribunal has taken into account and considered carefully the potential for that Criteria to prevent the first applicant from obtaining another visa to Australia for three years from 22 November 2016 when his visa was cancelled. The Tribunal has weighed that in the first applicant’s favour. But that weight is reduced by the plain intent of the Criteria to restrict for a period the return to Australia of people affected by identified risk factors. If the first applicant’s conduct attracts the working without authority risk factor, which it might, the Criteria intends to restrict the first applicant’s return to Australia for three years from 22 November 2016. The Tribunal cannot ignore that in its analysis.
The Tribunal has also weighed various other matters both in the first applicant’s favour and against him.
After considering the matter carefully, the Tribunal has concluded that the potential effect of PIC 4013 on the first applicant does not outweigh the matters that weigh against the first applicant in this review. In the end, given its findings that the first applicant breached condition 8017(3)(a)(ii)(B) of his visa, and that the purpose of his stay in Australia on a 457 visa has expired for now, the Tribunal is not prepared to set aside the delegate’s cancellation decision just to avoid the potential operation of PIC 4013 on the first applicant’s future visa applications to Australia.

Having regard to all the evidence before it, and balancing the matters both in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the first applicant’s 457 visa.
Decision
The Tribunal affirms the decision to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the second applicant.
L. Hawas
Senior Member

[2018] AATA 279

2 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Breach

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction