KUMAR (Migration)

[2018] AATA 5271

KUMAR (Migration) [2018] AATA 5271 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pawan Kumar
Mrs Daljeet Kaur

CASE NUMBER:  1800863

DIBP REFERENCE(S):  BCC2017/3168999

MEMBER:K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          9 November 2018 at 12:04 pm (QLD time)

DATE OF WRITTEN RECORD:                26 November 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – ground for cancellation – did not work for an approved business sponsor or an associated entity – consideration of discretion – purpose of applicant's stay in Australia – extent of the applicant's compliance with visa conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 January 2018 to cancel the applicant’s Subclass 457 Temporary Business Entry (Class UC) visa under the Migration Act 1958 (‘the Act’).

2. At the hearing on 9 November 2018, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision dated 8 January 2018 made by a delegate of the Minister for Immigration to cancel the first named applicant's Subclass 457 temporary work skilled visa under s.116 of the Act.

4. 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)(a)(ii) of his Subclass 457 visa because he did not work only in a position in the business of his standard business sponsor or an associated entity and his occupation was not one which was exempted from this requirement.

5. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled. For the purposes of the Tribunal's jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant, Mr Pavan Kumar.

6. The second named applicant's visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act, which made the cancellation of the second named applicant's visa self-executing on the cancellation of the first named applicant's visa. See the cases of Rani and others v MIMA [1997] 80 FCR 379 at 385, 393 and 400 and Tien and others v MIMA [1998] 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1) of the Act, the Tribunal has no jurisdiction with respect to the second named application, Mrs Kaur.

7. The first named applicant, Mr Pavan Kumar, is now referred to in these reasons as ‘the applicant’.

8. The applicant was granted his most recent Subclass 457 visa on 6 December 2016. The standard business sponsor who nominated him in the most recently approved nomination was Delights of Punjab, Punjabi Restaurant Pty Ltd.  On 24 October 2017, the applicant was sent a Notice of Intention to Consider Cancellation of his visa.

9. On 6 November 2017, the applicant responded in writing to the Notice indicating that his sponsor sold the business and he could not commence work with them.  However, according to this response, the applicant found work with GR Partnership Pty Ltd who lodged a nomination for him, which was pending at that time.

10. On 8 January 2018, the delegate cancelled the applicant's Subclass 457 (Business Long Stay) visa and on 11 January 2018, the applicant applied to the Tribunal for review of the visa cancellation decision.  The applicant provided a copy of the delegate's visa cancellation decision to the Tribunal with his application for review.

11. The applicant appeared before the Tribunal on 9 November 2018 to give evidence and present arguments. The Tribunal also took oral evidence from the second named applicant, Mrs Kaur, who is the wife of the applicant.

12. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants confirmed to the Tribunal that they understood the interpreter and were feeling well enough to give their evidence. The Tribunal notes that the bulk of the oral evidence was provided in the English language to a good standard.

13. The applicants were represented in relation to their review by their registered migration agent who attended the review hearing and was permitted to make oral submissions.

14. The Tribunal has duly considered all material, both oral and documentary, submitted by the applicant or on his behalf.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 grounds 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?

16. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of the visa. In the circumstances of the present matter, condition 8107(3)(a)(ii) provides that a visa holder must work only in a position in the business of the sponsor or an associated entity of the sponsor noting that the applicant's occupation of cook (ANZSCO code 351411) is not one which is exempt from this requirement. In this instance, condition 8107 was attached to the applicant's visa, which was granted on 6 December 2016 and which, but for its cancellation, was valid until 6 June in 2018.

17. During the hearing, the applicant advised that he initially came to Australia as a student before obtaining further visas, including a Subclass 457 visa, which was obtained prior to the Subclass 457 visa under consideration in this matter.

18. The applicant provided an inconsistent account of his study experience. This was raised with him during the hearing and he attributed this to the passage of time. In summary, the applicant came to Australia in 2008 as the holder of a Student visa. He advised that his father passed away initially stating this was in 2011, then later advising it was in 2009. He was not sure of the exact date. Apparently due to his father's passing, the applicant was stressed and stopped his studies. He held a Student visa but did not study for approximately 18 months throughout 2010 to 2011 on his own oral evidence. He also did not inform the department of this cessation of study. The applicant subsequently applied for a new Student visa, it was refused and he had the decision overturned in the Migration Review Tribunal in around 2013.

19. The applicant obtained an initial Subclass 457 visa in April of 2015 and that was sponsored by the Bayleaf Indian Restaurant in Townsville. On his evidence he worked there for around 18 months as a cook. Prior to that visa expiring he located an employer in Brisbane, the Delights of Punjab, Punjabi Restaurant Pty Ltd, who sponsored him for the Subclass 457 visa which was cancelled and is the subject of this review. The Delights of Punjab, Punjabi Restaurant Pty Ltd is also known as ‘the sponsor’. The applicant was granted the Subclass 457 visa sponsored by the Delights of Punjab, Punjabi Restaurant Pty Ltd on 6 December 2016.

20. The applicant disagreed with the decision to cancel his most recent Subclass 457 visa because in summary, he contended that the Delights of Punjab, Punjabi Restaurant Pty Ltd, which is the sponsor for the Subclass 457 visa under consideration in this review, did not actually offer him work because it was sold and the owner avoided him to prevent him from starting work. The Tribunal raised with the applicant during the hearing that it might have difficulty accepting that the sponsor for this visa sponsored him then offered him no work. The applicant advised the Tribunal that the business was sold and it was beyond his control.

21. The applicant confirmed during the review hearing that he did not work for the sponsor Delights of Punjab, Punjabi Restaurant Pty Ltd or an associated entity. The applicant told the Tribunal that he worked for GR Partnership Pty Ltd trading as The Curry Bandit Indian Restaurant for a couple of months in the role of cook. He advised that this business lodged a nomination for him, however it was ultimately not approved.

22. The applicant agreed that Departmental monitoring officers located him working with GR Partnership Pty Ltd, trading as The Curry Bandit Indian Restaurant, and that he advised them that he did not work at Delights of Punjab, Punjabi Restaurant Pty Ltd. He agreed that this was as reflected in the delegate's visa cancellation decision, which he provided a copy of to the Tribunal.

23. The applicant stopped work with GR Partnership Pty Ltd trading as The Curry Bandit Indian Restaurant following the visit from the departmental officers. The applicant informed the Tribunal that he then worked for Saffron Indian Restaurant at Coorparoo, the company name of that business being Maple Queensland Pty Ltd. The applicant advised that he worked for Maple Queensland Pty Ltd as a cook. He confirmed that none of the aforementioned employers are associated entities of Delights of Punjab, Punjabi Restaurant Pty Ltd. The applicant told the Tribunal that he has worked for Maple Queensland Pty Ltd since March 2018 and that he continues to work there.

24. The applicant confirmed that he has not worked in an approved nomination since his most recent Subclass 457 visa was granted on 6 December 2016. During the hearing, the Tribunal raised with the applicant that the evidence tends to suggest he has breached condition 8107 by not working in a position in the business of the visa sponsor or an associated entity of the sponsor and also that this might tend to weigh in favour of cancelling his visa. The applicant indicated that he agreed that he had been in breach of condition 8107 but did so due to his lack of knowledge of the visa condition and also on his account due to receiving incorrect advice from a previous migration agency being Honest Immigrations.

25. Following careful consideration of the evidence, the Tribunal finds that the applicant did not ever work in a position in the business of the sponsor Delights of Punjab, Punjabi Restaurant Pty Ltd or an associated entity. The Tribunal therefore finds that the applicant did not comply with condition 8107(3)(a)(ii) attached to his Subclass 457 visa. 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  

26. 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 the matters raised by the applicant and on his behalf and matters in the Department's Procedures Advice Manual, which is also known as PAM3 ‘general visa cancellation power’ section.

27. 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 the matter of Botha v Minister for Immigration and Border Protection [2017] FCA 362 at 39. In that passage it is said:

    “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 and 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, and the plurality in Minister for Immigration and Citizenship v SZJSS [2010] 243 CLR 164 at 33.”

28. The applicant's background has been detailed above. He held a series of temporary visas prior to the grant of his most recent temporary Subclass 457 visa on 6 December 2016. 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 Delights of Punjab, Punjabi Restaurant Pty Ltd or an associated entity in the approved nominated occupation of cook.

29. The applicant never commenced such employment. On his own evidence the applicant has not worked in Australia for an approved sponsor in an approved occupation since the grant of his most recent Subclass 457 visa, notwithstanding that he has subsequently worked for GR Partnership Pty Ltd, trading as The Curry Bandit Indian Restaurant, who lodged an unsuccessful nomination for him, and also that he worked for Maple Queensland Pty Ltd, trading as the Saffron Indian Restaurant at Coorparoo, and he continues to work for that business.

30. The Tribunal considers it a matter of significance that the applicant has not yet obtained a current approved nomination with an approved sponsor. He has been without sponsored employment since the time of his most recent Subclass 457 visa grant on 6 December 2016.  It is worth pausing to reflect that this is a period of almost two years.

31. 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, that he could pursue other visa options offshore, that 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 pending the pursuit of other as yet unconfirmed visa options.

32. The Tribunal notes that it raised these aforementioned matters with the applicant during the hearing and he contended that his current employer Maple Queensland Pty Ltd, trading as the Saffron Indian Restaurant, wishes to sponsor him but does not want to incur the cost of doing so unless certain that he is successful with his application for review. The Tribunal notes that the applicant contends his current employer Maple Queensland Pty Ltd is ready to sponsor him pending successful outcome of this review. A letter from that company dated 1 November 2018 indicates this is the case. However, the Tribunal does not accept that this is a genuine sponsorship offer given the applicant has apparently been working for that company since March 2018 and no applications have been lodged since that time.

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

34. As previously outlined, the Tribunal has found that the applicant breached condition 8107(3)(a)(ii) of his visa as he never commenced work with Delights of Punjab, Punjabi Restaurant Pty Ltd. He continued to breach this condition since the grant of his most recent Subclass 457 visa on 6 December 2016 until he obtained a Bridging Visa E with work rights.

35. The Tribunal notes that the applicant also held a past Student visa and did not study for a period of approximately 18 months and that this was in breach of his Student visa conditions. He did not inform the department that he had ceased such study.

36. 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 his past history of non-compliance with Student visa conditions.

37. Regarding the applicant's past and present conduct towards the Department, there is no evidence before the Tribunal to suggest that he has not been cooperative in his dealings with them. The Tribunal finds that this circumstance weighs moderately against cancelling his visa.

38. The Tribunal has also had regard to the circumstances of the visa cancellation. The applicant contends that he never commenced employment with the sponsor as they stopped trading without his knowledge and that it was outside of his control. The Tribunal is prepared to accept that this is the case and finds that the ground for cancellation did not arise due to his own actions. The Tribunal finds that the circumstances in which the ground for visa cancellation arose weighs moderately against cancelling the applicant's visa given his actions are not related to the closure of the sponsoring business.

39. For completeness, the Tribunal is not prepared to accept that the applicant was unaware of the requirements of condition 8107 and accordingly this detracts from his credibility. The Tribunal raised with the applicant that his history of holding various visas with visa conditions made it difficult to accept that he did not understand that visa condition. He attributed his errors to a lack of knowledge with respect to the 8107 condition and with respect to stress in regards to the Student visa conditions. On balance, the Tribunal does not accept these explanations and it has concerns with his credibility given his visa history, his inconsistent oral evidence at the start of the hearing with regard to his study history, and his history of, for some length, not studying on a Student visa whilst holding a Student visa and not informing the Department of his cessation of study.

40. 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 he will face hardship if his visa is cancelled in the following ways. He contended that he will face financial hardship if he returns to India. He will not be able to find work. He must support his mother who is on her own and his brother who is an adult and aged 25 years. His wife also contends that she would face economic hardship if she returned to India in addition to the applicant.

41. It is contended that the applicant requires more Australian experience in order to open an Indian restaurant in India to follow the family tradition. He has approximately 26 months of Australian work experience on his own evidence but he says he requires around five years of Australian experience before he returns to India. The applicant says he cannot go offshore to apply for a new visa because he will be subject to an exclusion period.

42. In summary, the applicant and his wife, who is the second named applicant, contend they will face economic hardship if the Subclass 457 visa is cancelled and this will flow to the applicant's mother and his adult brother.

43. The Tribunal raised with the applicant that his attributes, skills and experience in Australia, his adaptability, that he grew up in India, and that he speaks the native language, in combination tend to suggest he would be able to find some work in India if he returns. The applicant disagreed, noting he could not obtain more high level positions in India without further Australian experience.

44. Having regard to both the background of the applicant and the second named applicant, the Tribunal does not accept that they will be unable to find any work at all in India and therefore be unable to support themselves and their family. It follows that the Tribunal does not accept that the applicant and his wife, the second named applicant, would be unable to start their own family if they returned to India due to financial reasons as was contended during the hearing.

1. Whilst the Tribunal accepts that it is the preference of the applicant and his wife to remain working in Australia where wages are higher, it notes they have developed valuable skills and experience, which would make them more marketable in the Indian job market. The Tribunal does not accept that the applicant and his wife will be unable to obtain work and re‑establish themselves in India given their personal qualities, educational attainment and work experience.

2. Accordingly, the Tribunal does not find that a compelling need to remain in Australia arises from the claims of financial hardship and that any such hardship weighs only slightly against the cancellation of the applicant's Subclass 457 visa, particularly given the temporary nature of this visa.

3. 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 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 and his wife to remain in Australia in order to access better social infrastructure and wages. Whilst the Tribunal accepts that upset might be caused to the applicant and his wife and their other family members if they depart Australia, there is no persuasive evidence, including medical evidence, to suggest that such upset would have any detrimental or long term consequences.

4. Following careful consideration of the evidence, the Tribunal does not accept that there is a compelling need for either the applicant or his wife to remain in Australia holding Subclass 457 visas.  Accordingly, this consideration weighs slightly in favour of cancelling the applicant's visa.

5. Whilst the Tribunal accepts that visa cancellation might cause some hardship to the applicant and his wife, 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. On balance, the hardship to the applicant and his wife by having the applicant's visa cancelled weighs slightly against such visa cancellation.

6. The Tribunal notes that the visa of the applicant's wife, the second named applicant, will be consequentially cancelled pursuant to s.140 of the Act if the applicant's visa is cancelled. However, the visa of the secondary visa holder was granted on the basis of her being a member of the family unit of the applicant and it is the intended consequence of the legislation that members of the same family have the same visa status.

7. Following careful consideration, the Tribunal finds that the consequential cancellation of the visa held by the secondary visa holder (the second named applicant) weighs neither in favour of nor against the cancellation of the applicant's visa in the aforementioned circumstances.

8. With respect to the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant and his wife do not hold a valid visa, they would be unlawful non-citizens and possibly 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.

9. However, the Tribunal also notes that it is unlikely the applicant and his wife will be affected by the three year exclusion period in Public Interest Criterion 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.

10. The Tribunal does not accept the contention raised during the hearing that Public Interest Criterion 4014 would automatically apply to the applicant. In any event regardless of the application of the Public Interest Criteria referred to with respect to the applicant, on balance the Tribunal finds that the mandatory legal consequences of visa cancellation weigh neither in favour of nor against cancellation of the applicant's visa given they are the intended consequences of legislation.

11. 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. Accordingly, the consideration of Australia's international obligations weighs neither in favour of nor against the cancellation of the applicant's visa.

12. For completeness, the Tribunal notes that it does not accept that the applicant or any member of his family would face destitution if the visa is cancelled for the reasons previously outlined, including that the Tribunal does not accept that the applicant and his wife could not obtain some form of work if they returned to India.

13. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant's case and does not consider there is any other circumstance weighing against cancellation of his visa.

    CONCLUSION

14. The Tribunal has carefully reflected upon the factors both against and in favour of cancelling the applicant's Subclass 457 visa. As previously outlined, the Tribunal notes that some factors weigh against the cancellation of the applicant's visa. These factors must be carefully balanced with those factors in favour of the visa cancellation.

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

    DECISION

16. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

    K. Chapman
    Member