Patel (Migration)

[2018] AATA 5452

Patel (Migration) [2018] AATA 5452 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ashishkumar Dashrathbhai Patel
Ms Sweta Jagdishbhai Patel

CASE NUMBER:  1823680

HOME AFFAIRS REFERENCE(S):           BCC2018/2257212

MEMBER:Amanda Mendes Da Costa

DATE:21 November 2018

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 21 November 2018 at 2:25pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no response to s 359A letter – not entitled to appear before the Tribunal – Tribunal declined indefinite adjournment of decision – ground for cancellation – ceased employment with his sponsor for a period exceeding 60 consecutive days – consideration of discretion – purpose of a Subclass 457 visa – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection (2014) 236 FCR 393
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 239 CLR 332
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 14 August 2018 made by a delegate of the Minister for Home Affairs 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(1)(b) on the basis that applicant did not comply with condition 8107(3)(b) attached to his visa because the applicant ceased employment with his sponsor for a period exceeding 60 consecutive days. 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. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

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

5. On 24 October 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to comment on information that it considered would be part of the reason for affirming the decision under review. The particulars of that information included the fact that the applicant ceased employment with his sponsor on or before 21 October 2017 and that on 14 August 2018 being the date his visa was cancelled, he had not worked for his sponsor for more than 60 consecutive days.

6. The Tribunal further invited the applicant pursuant to s.359(2) of the Act to provide information regarding the purpose of his travel to and stay in Australia; the degree of hardship that may be caused by visa cancellation; the circumstances in which the ground for cancellation arose; the applicant’s past and present behaviour towards the Department; Australia’s obligation sunder international agreements; the impact of any cancellation on the victims of family violence.

7. A response to the request for information was due by 7 November 2018.  As at the time of this decision, no response has been forthcoming and in these circumstances s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC (2010) 183 FCR 413.

8. The Tribunal has given consideration to whether it should adjourn the review under subsection 363(1) (b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.  In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It also had regard to the decision in Minister for Immigration and Citizenship v Li (2013) 239 CLR 332 regarding the reasonableness of any request for adjournment and the Federal Full Court decision in Minister for Immigration andBorder Protectionv Singh (2014) 231 FCR 437 which considered this issue, as well as a more recent decision in Kaur v Immigration and Border Protection (2014) 236 FCR 393 where analogous issues were discussed.

9. The Tribunal considered whether, in the circumstances of this case, the information regarding the grounds for the cancellation of the applicant’s visa or reasons why the visa should not be cancelled are likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the informational documents of the applicant.

10. In these circumstances and for the reasons set out in this decision, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes it is uncertain if and when the applicant will provide information in writing as to whether the grounds for the cancellation of the applicant’s visa exist and whether there are reasons why the applicant’s visa should not be cancelled.  The Tribunal is not disposed to delaying making a decision indefinitely.

11. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to address whether grounds exist for the visa cancellation or why the visa should not be cancelled.

12. The Tribunal notes that on 1 July 2018 he Department received an email from the applicant’s migration agent, advising that he would be submitting further information on behalf of the applicant, in response to the Department’s Notice of Intention to Consider Cancellation of the applicant’s visa, dated 31 July 2018.  However, no response was veer sent to the Department.

13. The Tribunal further notes that the applicant did not provide any additional evidence to it with the lodgement of the review application.

14. 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

15. 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?

16. 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 his visa because the applicant ceased employment with his sponsor for a period exceeding 60 consecutive days. This condition requires that if the visa holder ceases employment with the sponsor, the period during which the visa holder ceases employment must not exceed 60 consecutive days.

17. The evidence before the Tribunal establishes that the standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was AUSTKLEEN Pty Ltd (the sponsor) whose nomination was approved on 6 December 2016.  The applicant was nominated in the occupation of café or restaurant manager ANZSCO  141111.

18. The Department’s Sponsoring Monitoring Unit received information from the Australian Securities and Investment Commission that the sponsor was deregistered on 21 October 2017. This information indicates the visa applicant’s employment ceased at least at that time as the sponsor’s business had ceased to operate.

19. The occupation of cafe was restaurant manager is not one specified in the relevant instrument referred to in condition 8107 (3A) to exempt the applicant from having to comply with the requirements of condition 8107 (3)(a)(ii). Therefore, while the applicant continues to hold the subclass 457 visa he can only lawfully work in Australia for either the sponsor or an associated entity.  Departmental records also indicate that since the cessation of his employment, the applicant has not been nominated by an approved sponsor to work for them in a skilled occupation.

20. Based on this information, the Tribunal is satisfied that the applicant has not complied with condition 8107(3)(b) attached to his visa because the applicant ceased employment with the sponsor for a period exceeding 60 consecutive days.

21. 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

22. 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 applicant’s travel and stay in Australia, and whether the applicant has a compelling need to travel to or remain in Australia

23. The applicant was granted the subclass 457 visa on 17 February 2017 for the purpose of working for the sponsor in the position of a cafe or restaurant manager. The applicant ceased his employment with the sponsor on 21 October 2017.

24. There is no evidence before the Tribunal which establishes that the visa holder has resolved this matter by being nominated by an approved sponsor to work for them in a skilled occupation. As such, the applicant’s purpose for remaining in Australia is not in accordance with his subclass 457 visa which is to work for an approved business sponsor and nominated skilled occupation.

    Extent of compliance with visa conditions

25. Since ceasing employment with the sponsor on 21 October 2017, the applicant has not been nominated by an approved sponsor to work for them in a skilled occupation. Based on this evidence, the applicant is not complied with condition 8107(3)(b) attached to his Visa because he ceased has employment with the sponsor for a period exceeding 60 consecutive days

26. There are no other known instances of non-compliance with visa conditions by the applicant.

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

27. As the applicant has not provided a response to the departments either the Department’s notice or the Tribunal’s request for information, the Tribunal is not aware of any specific information relevant to the degree of hardship that may be caused to the applicant and any  family members. However the Tribunal does acknowledge that visa cancellation may cause the applicant some degree of hardship in making arrangements to depart Australia and notes that in this respect, he has been residing in Australia on a temporary visa since his initial arrival on 29 June 2013.

28. The Tribunal acknowledges that the cancellation of the applicant’s visa and his return to India is likely to affect his wife (Sweta Pagishbhai Patel) but has no material before it regarding the personal circumstances of the applicant’s wife or family.

    Past and present behaviour of the applicant towards the Department

29. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Consequential cancellations under s.140 of the Act

30. The Tribunal finds that the cancellation of the applicant subclass 457 visa would result in the consequential cancellation of the subclass 457 visa of the applicant’s wife by operation of law, under s.140 of the Act.

    Mandatory legal consequences

31. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained.  There is no suggestion that he will be detained indefinitely.  The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to an exclusion period in relation to some future visa applications.  There are no provisions in the Act which prevent the applicant from making a valid application without the Minister’s intervention.

    International obligations including non-refoulement

32. There is no evidence and the applicant does not claim that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

    Conclusion

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

    DECISION

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

35. The Tribunal has no jurisdiction with respect to the second named applicant.

    Amanda Mendes Da Costa
    Member