Patel (Migration)

[2019] AATA 2748

Patel (Migration) [2019] AATA 2748 (19 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dripenkumar Bharatbhai Patel

CASE NUMBER:  1824304

HOME AFFAIRS REFERENCE(S):           BCC2018/2364999

MEMBER:Peter Emmerton

DATE:19 February 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 19 February 2019 at 2:11pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant not working in the approved occupation – applicant ceased employment with the sponsor – sponsoring business ceased – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 August 2018 made by a delegate of the Minister for Home Affairs 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 Mr Patel had breached paragraph 8107(3)(i) as they were not satisfied that the applicant was working in the occupation listed in the most recently approved nomination. 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. The applicant appeared before the Tribunal on 19 February 2019 to give evidence and present arguments and the Tribunal also heard evidence presented by Mr Rahul Dangwal, a previous Chef at the restaurant.

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

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.

   Does the ground for cancellation exist?

7. 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 3(a)(i) was identified by the delegate, attached to the applicant’s visa. This condition requires that the holder must work only in the occupation listed in the most recently approved nomination for the holder.

8. Following the provision of additional information in writing by the holder and their representative, the Tribunal was made aware that the holder had not worked in the nominator’s business since February 2018. The Tribunal also notes that the cessation of the business in March 2018 and the holder’s employment in February 2018, pre-dates the visa cancellation date of 16 August 2018 by approximately 6 months and the review application made to the Tribunal on 21 August 2018 was similarly approximately 6 months following the business closing.

9. As a result of the fore-mentioned information regarding the cessation of employment, provided by the review applicant and their representative, in writing on 18 February 2019, the Tribunal formed a preliminary view that 3(a)(ii)(B) was breached. This was explained to Mr Patel, as was the fact that the Tribunal had not made a decision at this point in time.

10. The Tribunal placed before Mr Patel that this visa condition which requires the visa holder to meet the following condition ‘- must work only in a position in the business of the sponsor or an associated entity of the sponsor’ had become the dispositive issue. The Tribunal asked Mr Patel if he understood that this was now the dispositive issue, he replied that he did understand. The Tribunal asked Mr Patel if he could demonstrate compliance with this visa condition as the business was no longer operating and therefore he was no longer working in a position in the business of the sponsor or an associated entity of the sponsor.

11. The Tribunal asked Mr Patel if he would like to comment or respond to the information regarding the breach of this condition.

12. He was unable to demonstrate to the Tribunal that he satisfied the requirements of 3(a)(ii)(B) as he was not working in the nominator’s business or associated entity and had not been since 18 February 2018. Mr Patel stated that the business had ceased operating in March 2018. He also stated that he was aware that a breach had occurred but that it was not as a result of his actions. The Tribunal agreed with him that the business closure was a matter outside of his control.

13. Mr Patel explained that as a result of his visa conditions he is not entitled to work and is currently being assisted by his brother’s family in whose home he is living. Mr Patel stated that when his employment ceased he had hoped the owner, as he had indicated, would open another business but this has not occurred.

14. 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

15. 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’.

    Purpose of the visa holder’s travel to Australia

16. The visa holder was granted the visa for the purposes of working for an approved sponsor, Mr Mexican SA Pty Ltd, in a skilled occupation, Café and Restaurant Manager, ANZSCO 141111. Information obtained by the Departmental Officer after conducting an interview with the sponsor on 1 February 2018 provided evidence that the visa holder was performing unskilled duties such as cleaning, food service and food preparation. These were tasks outside the duties of the nominated position. The Tribunal accepts the oral evidence given at the hearing by both Mr Patel and Mr Rahul Dangwal, that the visa holder’s principal tasks aligned with the nominated occupation. Mr Patel agreed that approximately 15% of his day to day work may have been non-aligned activity. The Tribunal gives this little weight in its decision.

    Extent of compliance with visa conditions

17. Evidence provided by the visa holder at the hearing, coupled with written submissions prior to the hearing and the Tribunal’s appreciation that small restaurants require a degree of flexibility in the tasks normally performed by the Manager on top of their core duties when staff issues or busy periods arise, lead it to the conclusion that Mr Patel had endeavoured to comply with the conditions of his visa.

18. It has formed the view that whilst some work was being done outside of the duties of the nominated position, they did not make up the substantive portion of his day to day activity. When the Tribunal asked Mr Patel what amount of his work day involved his non-management duties he stated approximately15%. The Tribunal has formed a view that this is not unusual, nor unreasonable in a small café or restaurant. The Tribunal gives this some weight in his favour.

    Degree of hardship that may be caused to the visa holder and any family members

19. It is evident from the submissions made to the Department and the Tribunal that Mr Patel is passionate about his role and having devoted 3 years to this job, is likely to suffer some financial and emotional hardship as a result of his visa being cancelled. He stated that it would be a disaster for him in his response to the Department’s NOICC.  The NOICC was issued on 7 August 2018, this statement was not repeated at the hearing. He acknowledged the assistance provided to him by his brother in helping with his living costs and went on to say that he was looking forward to returning to India and didn’t want to do anything that might hinder his ability to return to Australia at a later date. He was clearly concerned that a visa cancellation had placed a 3 year ban on the issuance of other visas.

20. The Tribunal notes that being separated from his brother and his family may cause some hardship, it also notes that he will be able to reunite with his parents and extended family in India. No evidence was presented to the Tribunal that Mr Patel had any business interests in Australia. Whilst the Tribunal does not consider this likely to be any greater hardship than for any other person in similar circumstances, the Tribunal gives this some weight in his favour.

    Circumstances in which the ground for cancellation arose

21. The Department formed a view following a site inspection, interview with the nominator and subsequent interview with Mr Patel that he was working outside of his nominated occupation. Mr Patel stated to the Department that this may have been in part as a result of poor communication between the officer and the nominator, as the nominator had poor command of the English language. The Department stated that it was of the opinion that the nominator had been able to communicate effectively by language and associated physical demonstration.

22. The Tribunal has formed the view that the dispositive issue is the breach of 3(a)(ii)(B), as was explained to Mr Patel at the hearing, at which time he was invited to comment or respond to this information. He stated that he understood what was being explained and that he understood and agreed that he was in breach. The Tribunal notes that the breach of 3(a)(ii)(B) was not associated with any action undertaken by Mr Patel. The Tribunal gives this some consideration in his favour.

    Visa holder’s past and present behaviour towards the Department

23. The Department acknowledged that there was no information to suggest that Mr Patel had been uncooperative with the Department or their staff. The Tribunal also notes that it has no evidence before it which might refute the Department’s view. It further observes that the visa holder presented as someone who was aware of his visa conditions, had endeavoured to comply and has continued to do so following the visa cancellation. He appeared to genuinely believe that it was important to do the best he could to comply with the requirements of the visa cancellation process. The Tribunal gives this some weight in his favour.

24. Whether there are persons in Australia whose visas would, or may be cancelled under section 140of the Act

25. It is clear from the circumstances as stated by the visa applicant and the associated records and documentation from the Department and the visa applicant’s submission, that no other person’s would be consequently cancelled. The Tribunal places no weight on this consideration.

    Legal consequences of a decision to cancel the visa

26. The Tribunal notes that Mr Patel had an application for a Regional Employer Nomination (subclass 187) visa) and was granted an associated Bridging Visa A (BVA) at lodgement both of which were cancelled at the time of the Delegate’s decision. It has considered that if It affirms to cancel the current visa this would remain the case. The Tribunal notes that he currently has an E class Bridging visa WE 050. He would become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not resolve his immigration status or voluntarily depart Australia.

27. I have also considered that he would be affected by section 48 of the Act, which may prevent him from applying for further visas while in Australia, and Public Interest Criterion 4013, which may prevent him from being granted a further temporary visa for a specific period. The Tribunal gives this a little weight in his favour.

    Australian international obligations

28. There is no information before the Tribunal that would indicate circumstances that would engage Australia’s international obligations. The Tribunal places no weight on this consideration.

    Any other relevant matters

29. The Tribunal is not aware of any other relevant matters and is therefore unable to place any weight on this consideration.

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

    DECISION

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

    Peter Emmerton
    Member