Kumar (Migration)

[2019] AATA 4532

Kumar (Migration) [2019] AATA 4532 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Kumar Kumar

CASE NUMBER:  1906804

HOME AFFAIRS REFERENCE(S):           BCC2019/254121

MEMBER:Jennifer Cripps Watts

DATE:24 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2019 at 12:30pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 60 days – occupation of Cook – dispute with sponsor over agreed terms of contract – Bridging Visa conditions limiting work hours – no further approved nominations – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8107

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89     

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 March 2019 made by a delegate of the Minister for Home Affairs (the delegate) to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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 did not comply with a condition of his visa: condition 8107(3)(b). The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant’s visa was cancelled on 21 March 2019.  On 22 March 2019, he applied for review, within time, and provided the Tribunal with a copy of the delegate’s decision.

4. The applicant appeared before the Tribunal on 24 July 2019 to give evidence and present arguments.  

5. 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

6. 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.

7. The applicant handed up two documents at the hearing, a copy of an email he sent to the Department on 13 March 2019 and a letter on ‘Volcano’s’ letterhead, dated 22 July 2019 and signed by Muwaaz Ahmad – Director stating that the applicant has worked there part time since March 2019.  Volcano’s is a restaurant in Sydney.

8. At the beginning of the hearing, the Tribunal summarised the information about the applicant’s visa cancellation and informed him that even if the ground for cancellation is made out, it is not mandatory that his visa be cancelled, and the Tribunal is required to consider discretionary matters and decide whether they weigh in favour of not cancelling his visa.  He was given details of the discretionary matters that would be considered.

9. The Tribunal has had regard to relevant information on the Tribunal and Department files, including information contained in the delegate’s decision, and has considered all relevant matters, together with oral evidence and additional documents provided at the hearing, in making its decision.

   Background

10. The applicant is a citizen of India and arrived onshore holding a Subclass 573 student visa on 1 July 2014.  On 5 April 2018, a nomination identifying the applicant for the occupation of Cook was approved for the White Tank Hotel Pty Ltd (the sponsor).  The applicant responded to an ad on Gumtree for a cook to work for the sponsor in West Wyalong, in regional New South Wales.  He had an interview with the owner, who offered to sponsor him.  The applicant was granted the related Subclass 457 visa as a Cook (ANZSCO 351411) on 30 April 2018 for four years. 

11. The applicant has provided written and oral evidence that, essentially, he reported for work at the sponsor on around 5 May 2018.  He says that the sponsor tried to negotiate down the contracted $54,800 annual salary because he said the business was not doing well.  He said it was proposed that his net income would be $800, instead of $875.  The applicant said the sponsor also wanted him to work seven days a week, which would be in excess of the 38 hours in the employment contract.  The applicant said he was very concerned about both these matters because he did not want to be in breach of his visa by working more than he should and not getting paid in accordance with the employment agreement that formed part of the nomination and visa applications.  The applicant says that when he indicated to the sponsor that he did not agree to work more and be paid less, the sponsor told him that if he didn’t commence work he would report the applicant to the Department.  The applicant says he considered this to be a threat.

12. At the hearing, the applicant said that the gross weekly salary was $1,065, the sponsor told him that they would pay the tax and he would receive $800 a week.  The applicant said he believed this to be around $75 a week less than he should have been receiving after tax.  He was asked if maybe this $75 a week could have been a deduction for room and board, for example, and said that it wasn’t because the job ad on Gumtree indicated that accommodation and food for the Cook’s position was free.  He said he thought he might still have a copy of the job ad.  The Tribunal said there was no need to provided job ad and accepts that the ad said that accommodation and food was included.

13. The applicant said he stayed in one of the sponsor’s rooms, worked there for two days mid-week, doing the lunch and dinner shifts on both days (11:00am to 2:30pm and 5:00pm to 10:00pm) and then told the sponsor that he would no longer work for him under what he claims were terms and conditions not consistent with what was in the employment contract, and less favourable to him.  The applicant said the sponsor asked him to stay on for at least four days as the weekend was coming and he needed a cook.  The applicant did not agree to this and says he left (he thinks on a Thursday) and returned to Sydney.  He says that about two weeks later, the sponsor sent him a brief message on Facebook asking if he was coming back to work and the applicant said that he responded ‘no’.

14. It is noted in the delegate’s decision that, on 22 May 2018, the sponsor notified the Department that the applicant ceased employment effective 14 May 2018. 

15. On 6 March 2019 the Department sent the applicant a Notification of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa, under the general power in s.116(1)(b) of the Act on the basis that he had breached a condition of his visa, namely condition 8107(3)(b) which requires, essentially, that if he ceases employment with the sponsor, it must be for no more than 60 consecutive days (which would have ended on or about 14 July 2018).

16. The applicant responded to the NOICC on 13 March 2019 (and provided the Tribunal with a copy of his email response at the hearing) and confirmed, giving reasons, why he did not start work with the sponsor.  He gave oral evidence at the hearing consistent with the NOICC response.

17. In his email response of 13 March 2019 to the NOICC and oral evidence, the applicant says that since ceasing working for the sponsor (no later than 14 May 2018) he had been looking for a new sponsor and has spoken to many employers, some who wanted him to work for a few months before they would consider nomination, but that he couldn’t work for them because his visa conditions did not allow it.  He said he holds a Bridging Visa E which allows him to work 20 hours a week.  The applicant then went on to say that he had had two interviews and one of the employers was willing to sponsor him but was labour market testing first (for a local applicant) and asked the applicant to wait for a month (which would have been until about mid-April 2019).  The applicant asked, in the NOICC response, to be granted until mid-May 2019 to arrange a new nomination.

18. At the Tribunal hearing, he was asked who this employer was and said it was Volcano’s (referring to the 22 July 2019 letter provided at the hearing). 

19. The applicant was asked at the hearing whether any nomination applications have been made for him since he ceased working for the sponsor and said none has.  He was asked if he has made any visa applications and confirmed that he has not.  The Tribunal is satisfied, on the evidence before it, that there is no nomination or nomination pending, or refused nomination on review relating to the applicant’s Subclass 457 visa that is the subject of this review.  It has now been more than a year since the 60 day period during which the applicant was entitled to find a new sponsor ceased (on 14 July 2018).   

    Does the ground for cancellation exist?

20. 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) attached to the applicant’s visa. This condition requires that ‘…if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days’.

21. On the evidence, the Tribunal is satisfied that the applicant, on his own evidence contained in the response to the NOICC and oral evidence at the hearing, ceased employment with the sponsor no later than 14 May 2018, which is about a year and two months ago and clearly more than 60 consecutive days in condition 8107(3)(b) attached to his Subclass 457 visa.

22. For this reason, 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. As mentioned earlier, the applicant was told that the discretionary matters (below) would be considered and the Tribunal discussed information relevant to these matters with the applicant in detail at his hearing.

    Purpose of the applicant’s travel and stay in Australia and need to remain in Australia

25. The purpose of the visa holder’s stay in Australia was to work for the sponsor in the nominated occupation.  His visa was approved for this purpose, for four years, on 30 April 2018.  He says he worked for the sponsor for two days and ceased working for the sponsor, no later than 14 May 2018, two weeks after the visa grant.  This is not in dispute. 

26. It is acknowledged that the applicant claims that the sponsor sought to vary the terms of his employment contract and that applicant says he found the sponsor’s manner threatening when he said he would inform the Department if the applicant did not commence and continue to work for him.  The Tribunal told the applicant that it accepts that he says he perceived this as a threat, but that it is the responsibility of the sponsor to report such a matter to the Department.

27. Other than to say that he wishes to have his visa back, so that that he ‘can have a lifeline’ for his future, the applicant made no claim and provided no evidence indicating he has a need to remain in Australia.  He has resided in Australia as a student and then Subclass 457 visa holder for about five years.  He said before he came to Australia, in 2014, he lived with his family in India, he had completed a Diploma of Quality Engineering and that he worked part time as a clerk.  The applicant confirmed at the hearing that he is not married, has no children and is not in a relationship with anyone in Australia, nor does he have any family here, apart from a cousin.

    Extent of compliance with visa conditions

28. The applicant has not complied with condition 8107(3)(b).  He provided evidence that ceased working for the sponsor after only working for him for two days, no later than 14 May 2018.  He has ceased working for the sponsor for more than 60 consecutive days, and at the time of this decision for over a year.  While it is not suggested that the applicant has been otherwise non-compliant with his visa conditions in Australia, the non-compliance with condition 8107(3)(b) is a significantly long period of time and given that the sole purpose for him residing in Australia while holding a 457 visa was to work for the sponsor (or another approved sponsor), on this basis the extent of his non-compliance is considered by the Tribunal to be very substantial.

    Degree of financial, psychological, emotional or other hardship that may be caused

29. The applicant has provided the Tribunal with no claims or information indicating that he will suffer any financial, psychological, emotional or other hardship if the visa is cancelled.  He gave oral evidence at the hearing that he wishes to stay in Australia and pursue sponsorship with Volcano’s.  This is accepted as the applicant’s stated and preferred option.  It is acknowledged that the applicant may experience some level of inconvenience if his visa is cancelled and he needs to, for example, return to his home country.

30. The applicant gave oral evidence at the hearing that he has completed a commercial cookery course, a hospitality diploma and an Advanced Diploma in Business in Australia.  He said that he also has a Diploma of Quality Engineering awarded to him in 2011 in India.

31. The applicant said he lives alone in Pendle Hill and pays $110 a week.  There is no evidence before the Tribunal that he cannot terminate this arrangement.

32. There seems to be no reason why the applicant, with his qualifications, and work experience gained in both Australia and India, would not be able to pursue a career in his home country.

    Circumstances in which the cancellation arose

33. The Tribunal has had regard to the circumstances as they have been explained in writing by the applicant and in his oral evidence at the hearing, that the sponsor’s business was not doing well and was not in a position to pay the agreed salary and that it was suggested to him that he would have to work seven days a week.  While the Tribunal does not suggest that the applicant was not credible, there is simply no verifiable information before the Tribunal to confirm this occurred.

34. The applicant confirmed at the hearing that he did not contact the Department to inform them of the change to his circumstances after ceasing employment with the sponsor because he was afraid they would cancel is visa.  He said he did not report the sponsor to the Department for the claimed changes to the terms and conditions of his employment.

35. On this basis, the Tribunal is not convinced that it can reliably be said that the circumstances of the ceasing of the applicant’s employment with the sponsor was beyond the applicant’s control or that his not complying with condition 8107(3)(b) by securing a new sponsor or returning to work for the sponsor or associated entity within 60 days was beyond his control.   

    Past and present behaviour towards the Department

36. There is no evidence before the Tribunal that the applicant has been unco-operative in his dealings with the Department.

    Whether there would be consequential cancellations under s.140

37. No other person was granted the Subclass 457 visa that is the subject of this review as a dependant of the applicant and the Tribunal is satisfied that there will be no consequentially cancellations under s.140 of the Act if the applicant’s visa is cancelled.

    Mandatory legal consequences

38. The Tribunal has considered what legal consequences will follow if the visa is cancelled. The applicant currently holds a Bridging Visa E with work rights, 20 hours a week. Provided the applicant complies with his visa conditions up to the time his cancelled visa expires, he will not be subject to detention. The applicant will be affected by s.48 of the Act if the visa is cancelled, meaning that if he wishes or is entitled to apply for another Australian visa he will, with limited exceptions, need to do so offshore.  

39. The Subclass 457 visa was a temporary visa (replaced in March 2018 by the 482 visa) and, when granted, and acknowledging it may be possible for a 457 visa holder to apply for permanent residency, no offer or guarantee is held out of additional temporary or permanent visas being granted when the 457 visa ceases. The Tribunal gives limited weight to the mandatory legal consequences of cancellation of the temporary visa as they are the intended consequences of legislation.

    International obligations, including non-refoulement and best interests of children

40. The applicant has made no claims, nor has he provided any information or evidence to indicate that he would be at risk of harm if he was to return to India.

41. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

42. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

43. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. . The direct consequence of a temporary visa cancellation is removal of the applicant, not deportation.

    Other relevant matters

44. The Tribunal, referring to the applicant’s response to the NOICC, accepts that he has been trying to find a new nomination.  However, despite his efforts, and acknowledging that the applicant has explained why he has found it difficult to find a new sponsor, he has not found one.  Even though Volcano’s has said they would be willing to sponsor him in the future, the applicant has not provided the Tribunal with information suggesting that a new nomination application has been made or that approval of a nomination is imminent.   His employment ceased with the sponsor in May 2018, more than a year ago.  The Tribunal considers this a more than ample amount of time, well beyond the prescribed 60 days (which ceased on 14 July 2018), for the applicant to have found a new sponsor.

45. Condition 8107(3)(b) states that the period during which the holder ceases employment (with the sponsor) must not exceed 60 consecutive days.  The Tribunal’s view is that it would not have been the intention of this condition that ’60 days’ should be interpreted to mean an applicant may remain onshore indefinitely holding a Subclass 457 visa, not working for the sponsor, until they can arrange something else.  The Tribunal gives significant weight to the period of time beyond the 60 days that the applicant has remained in Australia holding a Subclass 457 visa while not working for the sponsor, from July 2018 to March 2019 when the visas was cancelled.

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

   DECISION

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

   Jennifer Cripps Watts
   Member