PATEL (Migration)

[2019] AATA 3715

PATEL (Migration) [2019] AATA 3715 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bhaumik Maheshbhai PATEL

CASE NUMBER:  1900866

DIBP REFERENCE(S):  BCC2018/4469240

MEMBER:Kate Millar

DATE AND TIME OF

ORAL DECISION AND REASONS:          5 April 2019 at 10:21 am (SA time)

DATE OF WRITTEN RECORD:                29 July 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review.

STATEMENT MADE ON 29 JULY 2019 AT 4:32PM

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – sponsor ceased operation – consideration of discretion – purpose of stay ceased to exist – wage entitlement dispute – lack of contact with the Department – decision under review affirmed

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

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 January 2019 to cancel the applicant’s Subclass 457 Temporary Business Entry (Class UC) visa under the Migration Act 1958 (the Act).

2.    At the hearing on 5 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. These are reasons for decision, delivered in Adelaide at 10.21 am.  The file number is 1900866. 

2. You are a citizen of India and you held a subclass 457 visa. This is an application for a review of a decision dated 9 January 2019, made by a delegate of the Minister for Home Affairs to cancel that 457 Temporary Work (Skilled) visa under section 116 of the Migration Act 1958. The delegate cancelled the visa on the basis that you had not complied with a condition of your visa, being a condition that if you cease work, the period that you cease work does not exceed 60 days. The issues in this case are whether the ground for cancellation is made out and if so, whether your visa should be cancelled.

3. Under section 116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. In this case, the grounds include that set out in section 116(1)(b), which exists where a visa holder has not complied with a condition of his or her visa. If satisfied, a 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 can include matters of government policy.

4. In this case, condition 8107 attached to your visa.  This condition requires, among other things, that if you cease work, the period during which you cease work employment must not be more than 60 days.  In this case, your sponsor notified the department that you had ceased work and you do not dispute that you ceased work from 11 June 2018.  The decision of the delegate records, and you agree today, that you did not have a nomination approved in relation to any other sponsor from that date and you did not return to work for your existing sponsor. 

5. It follows that at the time of the delegate’s decision on 9 June 2019, you had ceased employment for more than 60 days and you were in breach of condition 8107 clause 3. For these reasons, I am satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), I have to consider whether the visa should be cancelled.

6. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion.  I have had regard to the circumstances of your case, including matters raised by you and the matters in the department’s procedures advice manual and we worked through those in the hearing. 

7. You have told me you started work with your sponsor in 2015 as a trainee and your subclass 457 visa was approved to work for that sponsor in January 2017.  You told me that you initially received a training wage and when you started work you were told that you had to repay any amounts above that, including any tax and superannuation. 

8. In support of that, you have provided an email from your employer with an attached payment schedule which has total salary paid, for example, as $855.69, a base salary of $500, a fuel allowance of $33.69 and then there is a column that says, “On top of base salary (has to return) $322” on two occasions, once, an amount of $8 and on other occasions $546.  You said that continued for a period, but in your written submission, you have also said your employer was requesting for your wages to be repaid through an arrangement where it was paid into a BankSA account and then was also withdrawn by your employer.

9. You said you objected to this and your employment was terminated suddenly without any consideration of your contractual terms.  In your written submission, you have said that the reason given was a downturn in the economic performance of the company.  However, you said that was not the case. 

10. In looking at the individual factors raised by the policy, the first is the purpose of your travel and stay in Australia and whether you have a compelling need to travel to or remain in Australia.  You held a temporary work visa; the purpose of this visa is to fill temporary skill shortages in Australia and you have not worked since at least 11 June 2018.  When you finished work you did not seek or secure another sponsor and you have not been in Australia for the purpose for which the visa was granted from June 2018 until your visa was cancelled.

11. In regard to any compelling reasons to remain in Australia, I acknowledge you have been in Australia for a long period of time.  You said you first came as a student in 2008.  You studied and obtained a Bachelor of Information Technology and you started an MBA but did not complete it because you moved to South Australia to start work for your sponsor.  When I raised whether there were compelling reasons to remain, you said that you want to remain in Australia and obtain permanent residency to help you support your family in India. 

12. I am satisfied you have been in Australia for some time, which requires careful consideration.  I am not satisfied that this of itself and your desire to support for family in India amount to compelling reasons to remain in Australia. 

13. In regard to the extent of compliance with visa conditions, there is nothing before me that you have otherwise failed to comply with the conditions of your visa. 

14. In looking to the degree of hardship that might be caused by cancelling your visa, you have talked about the financial hardship to yourself and to your parents if your visa is cancelled.  You said your parents have been supporting you since you ceased work, a period of approximately nine months.  When I look at the potential financial hardship, you do have a Bachelor qualification in Information Technology and at 28-years-of-age, you would have some prospects and some skills with which to find work if you were to return to India.

15. You said the wages are much lower there and you would have to start on a commencing wage, which I accept.  And so, I do accept it would cause you a degree of financial hardship if you were to return.

16. In looking further at the circumstances in which the ground of cancellation arose, you allege that your previous sponsor expected you to repay your tax and your full pay, including superannuation and if you did not agree with this, your employer threatened to have your visa cancelled.  You said the sponsor interfered with your personal life and wanted to have conversations with you in the presence of your mother when she was visiting and that the employer’s communications with you through your wife was a factor in the breakdown of your marriage and you are now divorced.  Your ex-wife has returned to India.

17. You spent some time telling me about what you did after your employment ceased.  You said you contacted a migration agent within a week and you were advised to seek documents to apply for a subclass 489 visa.  You said you contacted your employer but they did not provide you those documents.  You said you were not aware of the condition, 8107, attached to your visa and required you not to cease work for more than 60 days.  You have also said that you contacted, by phone, the Fair Work Commission and you said you told the Fair Work Commission that your sponsor was demanding money from you.  They said that they would send an email, but you did not hear anything further back.

18. I do not accept that that would be the case.  If you rang the Fair Work Commission and told them about those circumstances, I do not accept that they would not pursue that further or ask you for further information.  I also do not find it convincing that you would not have followed up, in a period of at least seven months, what action had been taken to get your documents.  So, I do not accept that the telephone contact with Fair Work occurred.

19. I also find it difficult to accept that you acted in a timely manner with seeking advice on what should happen if you cease employment, or you were not advised or did not know of that requirement to not to cease work for more than 60 days.  As noted by the delegate, you were advised on at least two occasions that that was a condition of your visa in correspondence that was sent to you and you also had contact with a migration agent after your employment ceased.

20. In looking at your past and present behaviour towards the department, it also was concerning that you did not contact the Department of Immigration when you had concerns about how your sponsor was acting or to advise that your employment ceased.  I appreciate that people can be very concerned about potential consequences of contacting immigration, but it does seem to me that you pursued a number of avenues, or say you pursued a number of avenues, but these did not include getting advice from the department about what the next steps might be. 

21. You said that this is a miscommunication or a breakdown in communication, however, I consider it was an obvious step, and given your education and your level of English language skills that it could have been taken. 

22. In looking at whether there would be consequential cancellations under section 140 of the Act, you told me that your wife was in Australia on a visa  as a secondary applicant to your visa, but that she has since returned to India.  While there would be a consequential cancellation, a she has returned to India I do not think that weighs in favour either way; cancelling or not cancelling your visa.

23. I have looked at whether there are mandatory legal consequences of cancelling your visa.  If your visa is cancelled, there are only certain types of visa you can apply for from within the migration zone, from within Australia.  I refer to section 48 of the Act and regulation 2.12.  You can apply for other visas, including a further work visa, from offshore if you meet the criteria for the grant of the visa.

24. In looking at whether any international obligations would be breached as a result of the cancellation, I asked you if there were any reason that you were not able to return to India and your concerns related to the financial impact on you and your family.  That does not indicate any international obligations, including non-refoulement and the best interests of the child, would be breached as a result of the cancellation.

25. Taking all of those matters into account and having looked at the information in front of me, I appreciate you have been in Australia for a long period of time and that you were relying on the income from working in Australia to support your family in India.  I also appreciate that you are alleging that the sponsor has acted in contravention of the Act.

26. However, balancing that against the purpose for which your visa was granted, your lack of contact with the Department of Immigration, that you have family support if you were to return to India and you have qualifications with which you could re-establish yourself in India, I have concluded that your visa should be cancelled, having considered all of the circumstances as whole.

27. As a result, my decision today is to affirm the decision to cancel your subclass 457 or temporary work visa.   

    DECISION

    30.      The Tribunal affirms the decision under review.

    Kate Millar
    Senior Member