Monga (Migration)

[2017] AATA 614

Monga (Migration) [2017] AATA 614 (18 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Raman Monga
Mrs Pooja Arora
Mr Ritvik Monga

CASE NUMBER:  1612624

DIBP REFERENCE(S):  BCC2016/1611438

MEMBER:R. Skaros

DATE:18 April 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 18 April 2017 at 11:43am

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Sponsor went into liquidation – Applicant advised Department – Further employment in regional area – New employer obtained business sponsorship – Nomination approval pending – Consequential cancellations would cause family hardship

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 348

Migration Regulation 1994, Schedule 2 cl 457.223(2), r 2.12

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 5 August 2016 made by a delegate of the Minister for Immigration 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 visa under s.116(b) on the basis that the applicant did not comply with condition 8107 imposed on his 457 visa.

3. The applicant provided a copy of the delegate’s decision record to the Tribunal.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicants were represented in relation to the review by their registered migration agent.

6. The applicants appeared before the Tribunal on 6 February 2017 to give evidence and present arguments. 

7. 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.

8. 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

9. 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(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?

10. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. Of relevance is 8107(3), which provides:

    (3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)      the holder:

    (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)      unless the circumstances in subclause (3A) apply

    (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor.

    …..

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days

    …………

11. The Tribunal is satisfied on the evidence that 8107(3A) does not apply in this case.

12. The applicant was nominated by Varpreet Batra Pty Ltd (the sponsor) in the occupation of Restaurant Manager. The applicant was granted the Subclass 457 visa on the basis of that nomination on 15 June 2013 for a period of 4 years.

13. The Department received information, as detailed in the decision record, that the sponsor went into liquidation on 16 March 2016 and ceased trading. Consequently, the applicant’s employment with the sponsor ceased effective from 16 March 2016. Information in the decision record also indicates that on 17 March 2016 Mr Monga advised the Department that he ceased employment with the sponsor. 

14. The applicant confirmed at the hearing that he ceased employment with Varpreet Batra Pty Ltd in March 2016. He also confirmed that no other nomination in relation to him had been approved and that the period during which he ceased employment with the sponsor had exceeded 90 days.

15. As more than 90 consecutive days have passed since the applicant ceased the relevant employment, the Tribunal finds that the applicant did not comply with condition 8107(3)(b) that was imposed on his 457 visa. 

16. 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 power to cancel the visa should be exercised.

    Consideration of discretion

17. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

18. The Tribunal has had regard to the submissions made to the Department in response to the notice of intention to consider cancellation, the submissions made to the Tribunal and the applicant’s oral evidence at the hearing.

19. The Tribunal has first considered the purpose of the visa holder’s travel and stay in Australia. As indicated by the written submissions, the applicant travelled to Australia as the holder of a student visa. He completed qualifications in hospitality and commercial cookery after which he applied for, and was granted, a Graduate Temporary visa, Subclass 485. The applicant was granted the Subclass 457 visa, which is the subject of this review, on 15 June 2013 for a period of 4 years, on the basis of an approved nomination by Varpreet Batra Pty Ltd. Varpreet Batra Pty Ltd used to operate the Indian Harbour restaurant where the applicant had been nominated to work as a Restaurant Manager.   

20. The applicant ceased employment with Varpreet Batra Pty Ltd as a result of the sponsor going into liquidation on 16 March 2016. It was submitted to the Department that another company, Nanotek Technologies Pty Ltd, which purchased Indian Harbour restaurant was interested in maintaining the applicant’s employment and had lodged a nomination in relation to him on 27 June 2016. At the time of the delegate decision to cancel the applicant’s visa the nomination was pending. That nomination was refused on 24 January 2017.

21. Prior to the hearing the Tribunal received a copy of an acknowledgement letter for a nomination application in respect of the applicant made by Trident Hospitality on 1 February 2017 and a copy of an employment agreement. At the hearing the applicant gave evidence that he signed the employment agreement with Trident Hospitality Pty Ltd and intends to work in their restaurant in Blayney NSW upon approval of the nomination. 

22. The representative submitted, in reference to a Deloitte Access Economics report conducted on skills shortages, that there was a shortage of skills in the hospitality industry in NSW, and that the applicant had the skills and qualifications to fill the position of Cook for which he has been nominated by Trident. 

23. The Tribunal has considered the evidence and submissions. The Tribunal considers that the purpose of the 457 visa is to work for an approved business sponsor in an approved occupation. As some time had passed since the hearing, the Tribunal accessed the Department’s records to check the progress of the nomination. The records indicated that Trident Hospitality was approved as a standard business sponsor on 11 March 2017. The nomination in relation to the applicant is still be pending and may take some time to process. 

24. The Tribunal is concerned that without an approved nomination the applicant would not be able to fulfil the purpose of the 457 visa and has considered whether the applicant can go offshore to await the outcome of the nomination and apply for a 457 visa.

25. In response to why he could not go offshore, the applicant submitted that if he, his wife and young son had to depart Australia now it would cause emotional and financial hardship. The applicant stated that they had established a home and strong community links in Australia. They have been living in Australia for 11 years and are used to the Australian culture. He has a car and furniture and would not get much money if he had to sell his belongings straight away. He has had to take out a few loans and wants to pay off his debts. He stated that his wife is working and has been financially supporting the family. If they returned to India now they would have to start from zero. His son was born in Australia and attends the local primary school and it would be difficult for his son to return to India.

26. The Tribunal accepts that returning to India now would cause emotional and financial hardship for the applicant and his family. The 457 visa was granted to them for a period of 4 years, until 15 June 2017, and they had an expectation that they would be allowed to remain in Australia until that date. The applicant’s loss of employment after working for the sponsor for 2 ½ years appears to have been somewhat unexpected and, as considered below, was not a circumstance over which the applicant had any control.

27. The applicant has submitted, and the Tribunal accepts, that he has made every effort to comply with the conditions of his visa. A nomination in relation to the applicant was lodged shortly after the 90 day period, and while that nomination was not ultimately approved, the applicant was promptly able to secure other employment in the occupation of Cook, which the Tribunal accepts is consistent with his qualifications and skills.

28. The applicant has maintained that his intention of remaining in Australia is to work for an Australian business in his skilled occupation. The Tribunal accepts that the applicant’s intentions, and the fact that he has a nomination from an approved sponsor pending, align with the purpose of the 457 visa.

29. The Tribunal gives weight to the combination of the above circumstances in favour of not cancelling the 457 visa.

30. The Tribunal has next considered the extent of the applicant’s compliance with visa conditions and conduct towards the Department. Other than the applicant’s non-compliance with condition 8107, there is no evidence before the Tribunal that the applicant has breached any other conditions of the visa. In relation to the breach of condition 8107, it was submitted that the applicant had secured a position prior to the 90 days and provided the relevant documentation to his then representative prior to the 90 days ceasing. The Tribunal accepts that the applicant had made efforts to comply with the conditions of his visa. There is also no evidence before the Tribunal to suggest that the applicant’s conduct towards the Department has not been satisfactory. The Tribunal gives some weight to these considerations in favour of the applicant.

31. The Tribunal has considered the circumstances in which ground of cancellation arose. The breach of visa condition 8107(3)(b) arose because the applicant could not secure another nomination within 90 days of ceasing employment with his former sponsor. The Tribunal acknowledges that the applicant did not resign from his employment with the former sponsor but had to cease that employment due to the sponsor going into liquidation. The Tribunal accepts that this was a circumstance beyond the applicant’s control and accepts the applicant’s submission that he made efforts to secure alternative employment within 90 days. The Tribunal gives weight to these considerations in favour of the applicant.

32. The Tribunal accepts that the applicant’s spouse and child’s visas would be consequentially cancelled under s.140 of the Act if the applicant’s Subclass 457 visa. It was submitted that the applicant’s spouse works in Australia and contributes to household expenses. The Tribunal accepts that if the spouse’s visa is consequentially cancelled she would not be able to remain in Australia to work and this would place further pressure on the family’s already difficult financial circumstances. The Tribunal gives some weight to these considerations in the applicant’s favour.

33. The Tribunal has also considered the consequences of cancellation. If the visa is cancelled the applicant will be affected by s.48 of the Act and will only be able to apply for limited types of visas onshore as provided for in r.2.12. None of the visas prescribed in r.2.12 appear to be relevant to the applicant’s circumstances. If the visa is cancelled the applicant will not be able to apply for a Subclass 457 visa onshore and would have to depart Australia to make the application. While the consequences of cancellation are those intended by the legislation and would generally not carry much weight, in this case, the Tribunal has accepted that the applicant and his family would experience hardship if they had to to travel offshore to lodge the 457 visa. For these reasons, the Tribunal gives some weight to the limitations that would result from the visa cancellation.

34. The applicants have not claimed, and there is no evidence to suggest, that any international obligations would be breached as a result of the cancellation. The Tribunal accordingly gives no weight to this factor in its considerations.

35. Having considered the evidence overall, the Tribunal is of the view that the circumstances in favour of not cancelling the visa outweigh those in favour of cancelling the visa.  For these reasons, the Tribunal concludes that the visa should not be cancelled.

    DECISION

36. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    R. Skaros
    Member