Paras (Migration)

[2018] AATA 2736

Paras (Migration) [2018] AATA 2736 (11 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paras Paras

CASE NUMBER:  1714786

HOME AFFAIRS REFERENCE(S):           BCC2017/1480073

MEMBER:John Cipolla

DATE:11 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 July 2018 at 10:45am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Ceased working for sponsor – Breach outside of visa applicant’s control – Business shut down – Applicant seeking sponsorship from another business – Decision under review set side

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 July 2017 made by a delegate of the Minister for Immigration and Border Protection 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 failed to comply with condition 8107 attached to his visa as he ceased working for his sponsoring business on 14 November 2016 and did not return to work for the sponsoring business within 90 consecutive days of ceasing employment.

3. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. 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?

6. 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) which requires that if the visa holder ceases employment the period during which the visa holder ceases employment must not exceed 90 days.

7. Recourse to the decision record of the Department makes reference to the standard business sponsor who nominated the applicant in the most recently approved nomination for him Mahalakshmi (WA) Pty Ltd (the sponsor). The decision record indicates that on 12 December 2016 the sponsor advised the Department in writing that the applicant had ceased employment with them effective 14 November 2016. The delegate noted that neither the applicant or the sponsor informed the Department that the applicant had returned to work or an associated entity, within 90 consecutive days of ceasing employment and hence the delegate found that the applicant was in breach of the requirements of condition 8107(3)(b) attached to his subclass 457 visa.

8. The decision record also indicates that the applicant was served with a Notice of Intention to Consider Cancellation (NOICC) of his visa on 6 June 2017 and that the applicant and his representative responded to the NOICC in correspondence dated 10 June 2017 and 14 June 2017.

9. The applicant provided a statement in response to the Departments NOICC which is dated 10 June 2017 and contained at folio 13 of the Departmental file. The applicant noted that his Subclass 457 visa was granted to him on 31 October 2016. The applicant stated that at the time of the visa grant in October 2016 he was visiting India and that he called his employer to inform him that he would commence work once he returned back to Australia from India. The applicant advised that on 1 November 2016 his employer sent him a letter stating that he had prepared a roster for full-time shifts and that the applicant would be commencing work from 2 January 2017. The applicant returned to Australia from India on 16 November 2016 and went to meet with his employer. He was once again advised by his employer at the time that he would be commencing employment from 2 January 2017. The employer advised the applicant that he had some temporary staff working for the business at that point in time, who would be finishing up in December 2016, and that he needed time to release these temporary staff so that he could commence the applicant in full-time employment. The applicant advised that on 2 January 2017 he reported to work and found that the restaurant had been shut down. The applicant contacted the employer who informed the applicant due to unforeseen circumstances he had to close the restaurant operations and could not offer the applicant the position of employment with the business.

10. The applicant asked the delegate to consider these factors before proceeding to cancel his visa. The applicant noted that at the time of the visa grant on 31 October 2016 he was in India and that on 14 November 2016 he was in India and had not even commenced his employment and questioned how he could have ceased employment that he had not even commenced. The applicant reiterated that on 1 November 2016 he was sent a letter by his sponsoring employer advising that he will be commencing duties and employment from 2 January 2017. This was further confirmed directly by the applicant’s employer upon his return from India to Australia on 16 November 2016. The applicant stated that after meeting with his employer on 2 January 2017 (the day he was advised he would be commencing full time employment) that he came to learn that the business was in external administration and had ceased operations.

11. The applicant advised that after he came to learn of the closure of the sponsoring business he took active steps to find another nominating business to sponsor him. The applicant noted that he had always maintained lawful status in Australia and had no intention to breach visa conditions or to stay unlawfully in Australia at any point in time. The applicant noted that his former employer had been dishonest toward him and that the dishonesty and closure of the business was something completely outside his control.

12. The evidence before the Tribunal at review indicates that the applicant’s subclass 457 visa was granted on 31 October 2016 and valid to 31 October 2020 and that he was sponsored by Mahalakshmi (WA) Pty Ltd.

13. As noted the delegate’s decision record indicates that the sponsor advised the Department on 12 December 2016 that the applicant ceased employment with them on 14 November 2016.

14. The applicant has pointed out that he was not in Australia at that time and that he was overseas in India. Movement records indicate that the applicant was not in Australia between the visa grant and 14 November 2016, the date in which his visa was meant to have ceased. Indeed movement records show the applicant departed Australia on 28 October 2016 and re-entered Australia on 16 November 2016.

15. The review applicant has claimed that he was advised by his sponsor that he was to commence employment on 2 January 2017 and a copy of the letter from the sponsoring business has been provided to the Tribunal at review. On the day that the applicant was due to commence employment, 2 January 2017, he found out that the sponsoring employer was in external administration.

16. The evidence before the Tribunal indicates that the applicant was cancelled for breach of condition 8107(3)(b) on the basis that he had ceased work for more than 90 days. However the evidence before the Tribunal indicates that the applicant never commenced employment for the sponsor and was not in breach of condition 8107(3)(b), and on that basis the ground for cancellation under s.116(1)(b) does not arise.

17. In retrospect the applicant would likely have been in breach of condition 8107(3)(aa) which requires that the applicant must commence work within 90 days after arrival in Australia, but this potential ground for cancellation of the applicants visa was not put to the applicant in a NOICC.

18. The evidence before the Tribunal indicates that even if the applicant was in breach of condition 8107(3)(aa) that the facts before the Tribunal clearly indicate that this breach was outside the control of the applicant, and the evidence before the Tribunal indicates that the applicant is now the subject of a new approved nomination.

19. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    John Cipolla
    Senior Member