Pathak (Migration)

[2019] AATA 4829

Pathak (Migration) [2019] AATA 4829 (12 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Durga Pathak
Ms Apurba Mainali
Ms Aashirya Pathak

CASE NUMBER:  1903319

HOME AFFAIRS REFERENCE(S):           BCC2018/5039840

MEMBER:Jennifer Cripps Watts

DATE:12 July 2019

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 12 July 2019 at 5:01pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled) – Chef – ceased working for sponsor beyond 90 days – standard business sponsorship cancelled – incorrect advice from migration agent – likely to be nominated for current position – regional area – skills shortage – circumstances beyond applicant’s control – credible witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations (Cth) 1994, Condition 8107

CASES
Ibrahim v MHA [2019] FCAFC 89
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 12 February 2019 made by a delegate of the Minister for Home Affairs (the delegate) 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). 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 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.

4. The applicant appeared before the Tribunal on 12 July 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.  The applicants were represented in relation to the review by their registered legal practitioner and migration agent, Mr Alasdair Dougall.

5. 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

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 8107(3)(b). This condition requires:

   8107If 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):

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

   Facts not in dispute

8. The applicant’s nominator relating to the Subclass 457 visa that is the subject of this review was Narnarayan Sayona Pty Ltd (the sponsor).  Their standard business sponsorship was cancelled under s.140M of the Act on 23 October 2018 and the applicant ceased working there from that date.

9. The applicant’s Subclass 457 visa relating to the sponsorship was granted in April 2015 and would naturally have ceased in April 2019.  At the time of this decision, the applicant has ceased working for the sponsor for in excess of 90 consecutive days.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. It was explained to the applicant at the hearing that, as that ground does not require mandatory cancellation, the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

11. 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’.

12. Mr Dougall provided detailed and informative written submissions prior to the hearing addressing the reasons for the breach together with claims and information relating to the discretionary matters to be considered by the Tribunal.  The applicant was given an opportunity to present oral arguments and, as well as providing a written statement, gave evidence about his background and the circumstances surrounding the cancellation. 

    Background

13. Prior to working for the sponsor, the applicant had gained experience working in various other restaurants including Felix, Peter Doyle’s, Sydney Tower Restaurant and the Victoria Room in Darlinghurst.  The applicant resides in Australia with his wife and baby.  They are currently living in Mudgee in regional New South Wales.  This is because the applicant has found a new sponsor, Kim Currie, owner of The Zin House, which has been awarded one chef hat in the Good Food Awards since 2016 for four consecutive years, at Lowe’s Winery in Mudgee.  He commenced working at The Zin House (after his Subclass 457 visa would have naturally ceased, which was on 14 April 2019) in about May 2019.

14. After the sponsorship of Narnarayan  was cancelled in October 2018, the applicant started to look for a new sponsor and had relied on some bad migration advice from a former migration agent who encouraged and assisted him to lodge a Subclass 187 visa application, then advised the applicant that he could work for the nominating company, Via Dolce in Canberra, which the applicant did, while he was still holding a Subclass 457 via.  But he only worked there for a short while, because he became aware, when he received a letter from the ACT RCB, that by working there while he still held a Subclass 457 visa he was in breach of his visa conditions.  He immediately ceased working for the company that had lodged the nomination application.  He stopped obtaining advice from the former migration agent and in January 2019 engaged Mr Dougall.

15. The applicant continued to search for a sponsor and, in around April or May 2019 found an ad on posted by Ms Currie looking for a chef with fine dining experience, in the salary range of around $65,000 per annum at The Zin House restaurant in Mudgee.  The applicant said Ms Currie had been advertising for a chef for around six months when he applied for the job and had still not found anyone.  The Tribunal accepts that Ms Currie had had no luck finding a qualified and experienced chef with skills commensurate with the fine dining experience The Zin House provides.  This is on the basis that the member has spent a significant amount of time in the Mudgee area and is aware that finding good chefs to work in Mudgee, and keep them, has been for a long time and continues to be a big problem. 

16. Having responded to Ms Currie’s job ad, the applicant met with Ms Currie in Sydney for an interview and she offered him a trial at The Zin House.  He travelled to Mudgee and said he stayed in Ms Currie’s home with her family, including her husband, David Lowe, and Ms Currie’s children, while he did his trial.  Clearly pleased with him, Ms Currie offered him the job of Sous Chef and he has been working at The Zin House now for a couple of months.  The applicant has provided documentary evidence that he has rented a house for his family in Mudgee, on a 12 month lease from June 2019.  The applicant gave oral evidence that he and his wife socialise with Ms Currie and other workers at the restaurant and cellar door and that they are feeling welcome and settled in Mudgee.  The applicant is working at The Zin House full-time, including Friday nights and Saturday and Sunday lunch.

17. On 5 July 2019, Kim Currie was granted Standard Business Sponsor approval, effective until 5 July 2024.  Submissions were made that as soon as she has completed the labour market testing, a nomination application will be made for the applicant in the occupation of Chef.  The Tribunal, on the evidence, formed the view that Ms Currie appears to be highly motivated to retain the applicant as a Chef working for her at the Zin House and to make a nomination application for a Subclass 482 visa as soon as she can.  Mr Dougall said at the Tribunal hearing that she intends to do so once she has completed labour market testing which should be by 22 July 2019. 

18. The Tribunal made its own inquiries, by conducting a cursory search online, and can see that Ms Currie is advertising the position on Seek, Jora and Gumtree.

19. The applicant presented at the hearing as a credible person who gave spontaneous and cogent evidence.  He admitted the breaches relating to his Subclass 457 visa and did not seek to represent that he did not breach his visa conditions.  He did not dispute that he had breached his visa by not remaining employed by the sponsor for more than 90 days.  He explained why the breach occurred when he went to work for Via Dolce in Canberra in December 2018 when he had made the Subclass 187 application, because he was advised and assisted by his former migration agent to engage in the behaviour constituting the breach, and the Tribunal is inclined to believe him.

    Discretionary matters

    Purpose of the visa holder’s travel and stay in Australia

20. The purpose of the applicant’s stay in Australia was to work for a sponsor in the nominated occupation while he held a Subclass 457 visa.  He was nominated by, and worked for, the sponsor up until the time they went into liquidation in October 2018, a matter entirely beyond the applicant’s control.  While the purpose of working in Australia for the sponsor has remained the same, to work as a Chef, the circumstances are that the applicant ceased working for the sponsor for a period of more than 90 days.  He has not remained in Australia strictly in accordance with the original purpose of his visa.

21. However, now that Ms Currie has been granted a standard business sponsorship and the applicant is currently employed by her until she lodges the nomination for him, which it is expected she will do on or around 23 July 2019, the Tribunal is satisfied that the applicant is not being enabled to remain onshore indefinitely without any reasonable prospect of obtaining a nomination, as there appears to be only a very remote chance, if any, that Ms Currie will not be making the nomination application.

    Extent of compliance with visa conditions

22. The applicant ceased employment with the sponsor in October 2019 and had 90 days to obtain an approved nomination.  Both written and oral submissions have been made that the applicant’s former migration agent advised him to lodge a Subclass 187 visa application, which he did on 12 December 2018.  The applicant was told by his former migration agent that he could commence work with the nominating sponsor, Via Dolce in Canberra.  The applicant now knows, having obtained reliable migration advice from his current migrant agent, that in doing so he breached his Subclass 457 visa conditions.   On 8 January 2019 the applicant received a natural justice letter from the Department  It said he was working in breach of his visa conditions and that Via Dolce is a limited service ice-cream shop that was being developed into a full service restaurant. 

23. When the applicant became aware that the advice he had been getting was not good advice and he was working in breach of his Subclass 457 visa conditions, he ceased working at Via Dolce and returned to Sydney.

24. The applicant consulted with Mr Dougall in January 2019 and was told, among other things, that the Subclass 187 visa application to work for Via Dolce would have no prospect of success because of the nature of the business (limited service, which is a caveat against the occupation of Chef) and that the cancellation of his Subclass 457 visa was inevitable.  The applicant attempted to contact his former agent for an explanation and a refund of fees paid, but had no success as his calls went unanswered even, he said, when he rang from a different number.  Emails were exchanged between the applicant and his former migration agent and are on the Tribunal file.

25. While the applicant relied on poor migration advice, he did nevertheless breach a condition of the Subclass 457 visa by ceasing to work for the sponsor for more than 90 days and working at Via Dolce, for a short period in late December 2018 through to early January 2019.  However, he ceased worked with Via Dolce as soon as he became aware of this and also withdrew the 187 application and sought reputable migration advice straight away.

    Degree of financial, psychological, emotional or other hardship that would be caused

26. If the visa is cancelled, it is not, in the Tribunal’s view, unreasonable to think that the applicant, his wife and child, who are citizens of Nepal, could not return there to live.  However, it is accepted that it could cause fairly significant hardship.  The applicant has resided in Australia for over 10 years and has gained much experience and a good local reputation in his chosen field, as a chef.

27. The applicant has secured a job as a sous chef in regional New South Wales with an award winning restaurant and in June 2019 he and his wife committed to a 12 month renewable lease on a residential property in Mudgee, with a weekly rental of $380.  While this may not have been entirely wise in circumstances where the applicant’s visa status has not been resolved, the applicant has committed himself professionally and financially to live and work in the regional area of Mudgee, where his skills as a chef (with experience in fine dining) are in short supply.

    Circumstances in which the ground of cancellation arose

28. The sponsor had their standard business sponsorship cancelled in October 2018.  The Tribunal is satisfied that this was entirely beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the Department

29. There is no information before the Tribunal that the applicant has been uncommunicative or unco-operative with the Department.

    Consequential cancellations under s.140

30. If the applicant’s visa is cancelled, the visas of his wife and child will also be cancelled under s.140 of the Act.  The Tribunal is satisfied that if the visas are cancelled, there is no reason to think the family unit would be separated as a direct result of the cancellation.

    Mandatory legal consequences, including unlawfulness and detention

31. If the visa is cancelled, the applicant will become an unlawful non-citizen and, if he does not depart voluntarily, may be detained under s.189.  Under s.48 of the Act, he would be unable to lodge another visa application, with some limited exceptions. 

    International obligations, including refoulement

32. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the suiis Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

33. 'Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103].  It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

34. The applicant has not made any claim or providing any evidence indicating that he cannot return to his home country, Nepal, because he would be subject to the risk of harm.  The Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.

    Any other relevant matters

35. The Tribunal is satisfied that the applicant is highly likely to have a nomination made for him by the end of July 2019 to work in the occupation of Chef for standard business sponsor, Ms Kim Currie of The Zin House in Mudgee, a regional area in New South Wales where the Tribunal believes there is a skill shortage for qualified and experienced chefs.  

36. On balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

37. 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.

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

    Jennifer Cripps Watts
    Member