Kumar (Migration)

[2021] AATA 2160

Kumar (Migration) [2021] AATA 2160 (26 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pardeep Kumar
Ms Renu Sandhu
Mr Risav Daydayan

CASE NUMBER:  2009294

HOME AFFAIRS REFERENCE(S):          BCC2019/6126303

MEMBER:John Cipolla

DATE:26 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 26 March 2021 at 1.33pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– ceased employment for a period exceeding 60 consecutive days – breached condition 8607 – beyond his control – approved nomination – no jurisdiction with respect to the other applicants – decision under review set aside

LEGISLATION
Migration Act 1958, s 116

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 May 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with subclause (5) of condition 8607 attached to his visa which states:

   (5) If the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

3. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was PARAMBG Pty Ltd (‘the sponsor’), whose nomination was approved by the Department on 07 March 2019. The sponsor advised the Department that the applicant ceased employment with them with effect 5 November 2019.

4. This Department concluded on the basis of this information that the applicant ceased employment for a period which exceeded 60 consecutive days. Based on this information, the Department determined that there were grounds for cancelling the applicant’s visa under s116(1)(b) of the Act because he had not complied with condition 8607 attached to his visa.

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.

6. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were 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 those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

7. The applicant appeared before the Tribunal on 10 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani) and English languages.

8. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

11. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8607 was attached to the applicant’s visa. This condition, as has been noted, requires that if the applicant ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

12. The applicant’s sponsoring employer advised the Department that the applicant ceased employment with them on 5 November 2019.

13. The Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant on 8 May 2020, at which time the applicant had clearly ceased employment with his sponsoring employer for in excess of 60 days and the evidence before the Department was that he had not, since the cessation of his employment, found another sponsoring employer.

14. The evidence was that the applicant had sought sponsorship with another business Mundepi & Roy Trading as Masala Hut Indian Restaurant. The evidence was that at the time the applicant’s visa was cancelled there had been 3 failed attempts at securing an approved sponsorship through this employer. The evidence indicates that the sponsorship applications were lodged on 30 January 2020, 6 February 2020 and 19 February 2020 and all were refused on 19 February 2020 by the Department. An additional sponsorship application was lodged on 22 May 2020 this was approved by the Department on 14 January 2021.

15. The Tribunal has had regard to the NOICC and finds that the NOICC clearly outlines the grounds in which the Department was considering cancelling the applicant’s visa and enabled the applicant to comment on whether or not he agreed the grounds to cancel his visa existed and further to this whether or not the applicant’s visa should be cancelled.

16. The applicant, after seeking an extension of time to respond to the NOICC provided two responses which are dated 14 May 2020 and 23 May 2020. In his responses the applicant concedes that the grounds for cancellation of his visa under s.116(1)(b) did exist.

17. The applicant has argued in his responses to the NOICC that his visa should not be cancelled due to the impact of the COVID 19 pandemic, his hope to be approved to work for Masala Hut Indian Restaurant who were reliant on his skills as a Cook and due to the impact on the applicant having to return to India where the applicant is a citizen.

18. The evidence before the Tribunal is clear and as noted the applicant concedes that the grounds for the cancellation of his visa exist.

19. Based on the evidence before it, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

20. In support of the review application the Tribunal received a number of documents from the applicant’s representative this included evidence that Masala Hut Indian Restaurant had lodged a fourth sponsorship application to the Department on 22 May 2020.

21. The submission also included an organisation chart for Masala Hut Indian Restaurant, a submission addressing the genuine need for the position of cook in the business, along with the evidence listed below, which has all been duly considered by the Tribunal.

    “From the review applicant - Mr Kumar

    1.    Certificate IV Commercial Cookery Certificate and Transcript

    2.    Diploma of Hospitality Management Certificate and Transcript

    3.    Skill Assessment for Mr Kumar

    4.    Employment Certificate – Shalimar Family Restaurant

    5.    Employment Certificate – Pocket of Spice Indian Restaurant

    6.    Employment Certificate – Bollywood Masala

    7.    Letter of Engagement 22.05.2020

    8.    Bridging Visa E Notification – 12 June 2020

    From the employer – Mundepi & Roy Pty Ltd

    1.    ASIC Registration Check

    2.    Financial Statement 2018/2019

    3.    Financial Statement 2019/2020

    4.    BAS July– Sep 2020

    5.    Organisation Chart of Masala Hut - 07.12.2020

    6.    Tax Return 2019/2020

    7.    Letter of Engagement (Yatandar Bahuguna) 18.05.2020

    8.    Letter of Acknowledgement of Application Received – 22 May 2020

    9.    Record of Responds for 482 Nomination - 22 May 2020

    For Labour Market Test

    1.    Job Advertisement on Gunmtree (sic)

    2.    Job Advertisement on Jobactive

    3.    Job Advertisement on Seek

    4.    Receipt for Seek Advertisement”

22. The Tribunal conducted a hearing on 10 December 2020 and the applicant attended and gave evidence to the Tribunal.

23. The applicant advised that he initially came to Australia in February 2008 as the holder of a Student visa. The applicant completed a range of courses including a course in Commercial Cookery. In 2015 the applicant managed to obtain a 457 visa, working as a Cook for Indian restaurants in Longreach and Stanthorpe. The applicant attempted to obtain an Employer Nomination Scheme visa but on 13 May 2015 that application was refused.

24. The applicant advised that his son needed throat surgery in India in October 2019 and that he was given permission to travel to India by his employer for 12 days. When he returned to Australia his employer terminated his employment without reason.

25. The applicant advised that he was currently working as a Cook for Masala Hut Indian Restaurant, but 3 sponsorship applications to enable the business to retain the applicant as a cook had been unsuccessful and he was awaiting the processing of a fourth application which had been lodged by the business in May 2020.

26. At the conclusion of the review hearing the applicant’s representative asked the Tribunal to await more time before proceeding to decision on the basis of the pending sponsorship application of Masala Hut Indian Restaurant lodged on 22 May 2020.

27. The Tribunal has now received evidence that the sponsorship application lodged by Masala Hut Indian Restaurant on 22 May 2020 was approved by the Department on 14 January 2021.

    Consideration of discretion

28. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

29. The applicant has been in Australia for an extended period since 27 February 2008 when he entered as the holder of a Student visa. The applicant whilst holding a Student visa completed a number of courses that included a Diploma of Hospitality, a Commercial Cookery course, a Diploma of Marketing and an Advanced Diploma of Marketing. The evidence indicates that the applicant complied with the conditions that were attached to his successive student visas. The applicant obtained a Subclass 457 visa in 2015 and then sought a Subclass 187 visa, an application which was unsuccessful. The applicant then obtained a Subclass 482 visa that is the subject of this review.

30. The initial visa in which the applicant entered Australia is a temporary visa and is granted to enable overseas students to have an opportunity to study in Australia.  The Subclass 457 visa regime came to an end in March 2018 and was replaced by the Subclass 482 visa which is a temporary visa and enables an Australian business to employ a person in an area where there is an identified skill shortage and who establishes the need to employ an overseas applicant. 

31. The most recent sponsorship application by Masala Hut Indian Restaurant nominating the applicant to work in the business as a Cook was approved by the Department on 14 January 2021.

32. The purpose of the applicant’s most current stay in Australia was to work as a Cook. An Australian business has now successfully sought to nominate the applicant to work in their business as a Cook based on need and the inability to source a Cook from within Australia meeting the applicant’s skill set.

    The extent of compliance with visa conditions

33. The evidence before the Tribunal indicates that the applicant breached condition 8607 of his visa when he ceased being employed by his sponsoring business for more than 60 days after the cessation of his employment on the 5 November 2019. The breach came about as a consequence of the termination of the applicant’s employment, after he returned from a 12 day overseas trip to India, albeit with his previous employers permission. The evidence indicates that the applicant attempted to find an alternate employer to sponsor him and as has been noted the most recent application lodged by Masala Hut Indian Restaurant was approved by the Department on 14 January 2021, nominating the applicant to work in the business.  The evidence indicates that the applicant complied with the conditions attached to his Student visas and successfully completed a number of courses in Australia.

    The degree of hardship that may be caused

34. The Tribunal accepts that if the applicant’s visa remains cancelled that this will cause some hardship to the applicant and to his family members.

    Circumstances in which ground of cancellation arose.

35. The circumstances in which the ground for cancellation arose are outlined above, namely that the applicant ceased employment with his sponsoring employer on 5 November 2019 for more than 60 days in contravention of condition 8607 attached to his visa.

    Past and present behaviour of the visa holder towards the department

36. There is no evidence to suggest that the applicant has behaved in a negative manner towards the Department as to weigh against him in the exercise of the discretion.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

37. There are no persons in Australia whose visas would be consequentially cancelled under s. 140 the evidence indicates that both the applicant’s wife and son, his dependents, are both offshore.

    Whether there are mandatory legal consequences to a cancellation decision

38. If the cancellation decision is affirmed, the applicant who currently holds a Bridging visa will be required to depart Australia. It is the understanding of the Tribunal that due to the current restrictions to international travel caused by the global COVID 19 pandemic the applicant could apply to the Department for a Bridging visa which will enable him to stay in Australia until such time he is able to depart.  If the applicant fails to depart Australia in accordance with the requirements of any Bridging visa he holds, the applicant would be detained under s.189 of the Act and removed from Australia under s.198 of the Act as an unlawful non-citizen. If the applicant’s visa is cancelled he will be affected by s.48 and prohibited for a period of time for applying for visas with the application of PIC 4013 criterion.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

39. The applicant has not raised before the Department, or indeed before the Tribunal, that any of Australia’s international obligations would be breached as a result of the cancellation of his visa and the Tribunal finds that no breaches of Australia’s international obligations would arise from the cancellation the applicant’s visa.

    CONCLUSION

40. On balance, the Tribunal is of the view that the visa cancellation should be set aside. The evidence indicates that the applicant has held a number of Student visas and has complied with the conditions attached to those visas. The evidence indicates that the applicant has complied with a previously held Subclass 457 visa. The cessation of the applicant’s Subclass 482 visa was attributable to circumstances beyond his control.  The applicant travelled overseas for 12 days, with the permission of his employer, as his son was having surgery and upon return to Australia his position was terminated.  The evidence indicates that the applicant did his best to find another nominating employer, which during the 2020 calendar year would have been challenging, due to the global pandemic. Yet despite these challenges the applicant found a new sponsor and the applicant’s sponsor and current employer Masala Hut Indian Restaurant lodged 4 separate sponsorship applications to secure the applicant to work in their business as a Cook.  The Subclass 482 visa as has been noted exists to address skill shortages in Australia. The applicant was nominated to fill a specific role as a Cook and the application by Masala Hut Indian Restaurant to nominate the applicant was eventually approved.  The persistence of this business, lodging 4 separate applications, corroborates the need of the business to employ a Cook with the skills and experience of the applicant, persistence that eventually paid off.

41. Considering the circumstances as a whole, the Tribunal has decided the cancellation of the applicant’s visa should be set aside.

    DECISION

42. The Tribunal sets aside the decision to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

43. The Tribunal has no jurisdiction with respect to the other applicants.

    John Cipolla
    Senior Member