Kumar (Migration)

[2020] AATA 3686

Kumar (Migration) [2020] AATA 3686 (17 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pawan KUMAR
Mrs PAWANDEEP KAUR
Master Kritish SINGH

CASE NUMBER:  1929133

HOME AFFAIRS REFERENCE(S):          BCC2019/438165

MEMBER:Bridget Cullen

DATE:17 July 2020

PLACE OF DECISION:  Brisbane

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

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

Statement made on 17 July 2020 at 12:17pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – Departmental processing times – consideration of discretion – purpose of visa not fulfilled – unable to secure a new nomination – decision under review affirmed

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

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 10 October 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the primary review applicant’s visa under s.116(1) of the Act on the basis that the visa applicant did not comply with a condition of his visa. The secondary applicants’ visas were cancelled as a consequence of the primary cancellation, under s.140(1) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before 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.

4. The Tribunal exercised its discretion to hold the hearing by telephone on 25 May 2020. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.,

5. The applicant’s representative, requested the hearing be conducted by face to face, in the following terms:

   “We have been advised by our client that he wishes to have a face to face hearing as he feels that the phone hearing is not going to be to his advantage. Our client feels that due to the complexity of the application and reasons whereby his visa was cancelled a face to face hearing would give him a better opportunity in conveying the reasons rather than verbally over the phone.

   We appeal to the Member to consider our clients request and postpone until a face to face hearing can be accommodated.”

6. The Tribunal refused the request, as it did not view the matter as complex, and did not consider that there were any significant issues of credit, but the matter was based upon objective factors. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The hearing was conducted with an interpreter, proficient in the Hindi and English languages. The applicant was able to answer the Tribunal’s questions in English, but used the interpreter to assist when he felt he needed to. At all times, the Tribunal was careful to ensure that the applicant understood the Tribunal’s questions, and that the Tribunal understood his responses. The applicant told the Tribunal that he has understood all of the proceedings and did not require any clarification.

8. The applicants were represented in relation to the review by their registered migration agent, Ms Athina Stephanou, of AIS Immigration Solutions (0103875). Ms Stephanou did not attend the hearing and ceased acting as the representative shortly before the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 8107(3)(b) is attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which employment is ceased must not exceed 90 consecutive days.

12. The applicant’s nomination, to work as a cook for Chowdury Mizanur Rahman (‘the sponsor’), was approved on 26 July 2016, in the position of cook. On 24 January 2019, the Department was advised that the visa holder ceased employment with them. At the time of the Department issuing the Notice of Intention to Consider Cancellation (on 8 May 2019), the applicant had ceased employment with the sponsoring company for over 90 days.

13. A new nomination was lodged on 04 February 2019 by Friends Family Practice Pty Ltd, which was withdrawn on 15 July 2019, and the other on 27 June 2019, by Mannat Residency Pty Ltd, which was refused on 16 September 2019. As is set out in the delegate’s decision record, which the applicant provided to the Tribunal in conjunction with the review, both of these nominations were for employers located at the same business address.

14. As such, the Department considered the applicant had breached condition 8107(3)(b) and was liable for cancellation under s.116(1)(b).

15. The applicant concedes that he ceased employment with Chowdury Mizanur Rahman on 24 January 2019, and he also concedes that he does not have an approved nomination.  He says that he tried to obtain a new nomination but believes that he was not properly advised by his lawyer. He also expresses frustration about the length of time it took for the Department to make a decision in relation to the Friends Family Practice Pty Ltd and Mannat Residency Pty Ltd nomination applications.

16. Essentially, the applicant’s argument is that the Tribunal should not take into account Departmental processing times for sponsorship and nomination applications, as they are outside of his control, and he was relying upon legal advice in expecting that the Department would approve.

17. The applicant's assertions that the processing timeframe of the Department should be taken into account are misconceived. The purpose of the subclass 457 visa scheme was to facilitate entry for the purposes of allowing persons who had an approved nomination to work for an approved sponsor. There is no guarantee that subclass 457 visa holders will be entitled to remain in Australia – the visa is a temporary entry visa.

18. Further, there is no guarantee that locating a prospective sponsor will result in approval of the nomination by the Department.

19. There is no basis upon which the Tribunal could find that the Departmental processing times are excluded from the relevant “90 consecutive day” period. Condition 8107(3)(b) of the applicant’s visa required that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.

20. The evidence before the Tribunal indicates that the applicant was granted the Subclass 457 Visa on 29 August 2016 on the basis of a nomination by Chowdhury Mizanur Rahman. The Tribunal finds that the applicant continued to work for the sponsor until 24 January 2019.

21. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment and has not done so since the cessation of his employment on 24 January 2019. On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b).

22. For these reasons, 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

23. 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’.

24. The Tribunal has first considered the purpose of the applicant's travel to and stay in Australia. The evidence before the Tribunal indicates that the purpose of the applicant's travel to and stay in Australia was, originally, to study. The applicant first arrived in Australia on a class TU subclass 571 Higher Education Sector visa in December of 2013. He completed a Certificate IV in Commercial Cookery and a Diploma in Business.

25. On 29 August 2016, the applicant was granted the Temporary Work (Skilled) (subclass 457) visa that is the subject of this decision. The purpose of that visa was for the applicant to engage in temporary employment for an Australian business Chowdury Mizanur Rahman as a cook from 29 August 2016 until 29 August 2020. The evidence indicates that the applicant worked for the sponsoring employer from August 2013 but that he ceased working for the sponsoring employer by 24 January 2019, and that since that time he has not become the subject of an approved sponsorship/nomination.

26. The purpose of the 457 visa is for an applicant to work on a temporary basis (usually for 4 years) for an approved sponsor in an approved occupation and that since ceasing employment with Chowdury Mizanur Rahman on 24 January 2019, the applicant has not been able to secure another nomination. The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list; and that if an applicant had been unable to secure an approved nomination, then this meant the applicant was not able to fulfil the purpose of the 457 visa. The Tribunal considers that this weighs strongly in favour of cancelling the visa.

27. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted his most recent 457 visa was to work in the occupation of Cook for Chowdury Mizanur Rahman, and that purpose ended on 29 January 2019 when the applicant ceased working for that company. The evidence indicates that the applicant has not been able to find another sponsor. It has now been over 1 years and 5 months since the applicant ceased working for his approved sponsor and to date the applicant has not been able to secure another approved nomination, under the 457 visa programme, or otherwise.

28. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for his approved sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa.

29. The Tribunal has considered the applicant's compliance with visa conditions and is satisfied that other than condition 8107(3)(b), the applicant has complied with visa conditions.

30. The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose after the applicant ceased employment with the sponsor for 90-consecutive days and was unable to secure another nomination within the 90-day period. The Tribunal notes the applicant's assertions that he has made efforts to secure another nomination, but the applicant has not been successful in these efforts. The Tribunal finds that these circumstances weigh in favour of cancelling the applicant's visa.

31. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. The applicant also has a wife, and child, who are secondary applicants on his 457 visa, and the decision will impact them. The Tribunal notes that had the visa not been cancelled, it would have expired on 29 August 2020, just over one month from now. The applicant has remained in Australia for what is, in effect, the length of time he could have expected to remain but for the cancellation.

32. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if he does not continue to hold visas to remain lawfully in Australia or refuses to depart voluntarily. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.  

33. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The applicant told the Tribunal that he worked in India and also in England for a two-year period. He is turning 32 this year and should be able to deploy the education he has gained in Australia, together with his experience, to locate employment in his home country of India.

34. The applicant told the Tribunal that his parents are currently visiting his family from India but have not been able to return due to the Covid-19 pandemic, as their flight was cancelled. The Tribunal understands that there may be some logistical difficulties in the very short term returning. However, when these issues resolve, the applicant and his family will be able to return to India with the support of his parents. The applicant has a young family, that should be able to readily make the emotional adjustment of returning to their home country, with the support of family.

35. The applicant told the Tribunal that he has paid tax as a consequence of working in Australia. While the Tribunal regards this as positive, it is also what is expected of all workers in Australia and therefore a factor that the Tribunal weighs only slightly in favour of not cancelling the visa.

36. The Tribunal acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant on the basis of the evidence before it has generally complied with visa conditions. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another approved nomination since ceasing work with the sponsor more than 17 months ago.

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

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

    Bridget Cullen
    Member