Pothuwila Kankanamge (Migration)

[2019] AATA 3353

Pothuwila Kankanamge (Migration) [2019] AATA 3353 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chamila Asanga Perera Pothuwila Kankanamge
Mrs Madara Harshani Samaranayake

CASE NUMBER:  1708804

HOME AFFAIRS REFERENCE(S):          BCC2016/4135305

MEMBER:Danielle Galvin

DATE:25 March 2019

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 25 March 2019 at 2:13pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – purpose of visa grant – sponsorship approval cancelled – failed to secure alternative sponsorship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223; Schedule 8, Condition 8107

CASES
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 18 April 2017 made by a delegate of the Minister for Immigration and Border Protection 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). The application attached a copy of the delegate’s decision.

2. The first named applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled)(subclass 457) visa was granted on 6 March 2015. The approved standard business sponsor who nominated the visa holder was PREMIUM (OPERATIONS) PTY LTD (PREMIUM). On 3 November 2016 the Department cancelled the PREMIUM’s approval as a standard business sponsor. On 13 February 2017 the Department notified the first named applicant of the Department’s intention to consider cancelling his visa on the basis that he had not complied with a condition of his visa. He was invited to respond to the notification in writing. The delegate found that the first named applicant had advised them in writing on 20 February 2017 that they had resigned from their employer on 7 December 2016 and that a new nomination had been lodged. The delegate found that “The standard Business Sponsorship commenced 13 February 2017 by GENERAL AUTOMOTIVE SERVICE CENTRE PTY LT was refused 17/3/17. As the sponsor was refused the visa holder had no sponsor and their nomination commenced 13 February 2017 was Otherwise Finalised-No Sponsorship 17/3/17.” The delegate further found that as at 17 April 2017 no further nominations had been lodged.

3. The delegate therefore cancelled the subclass 457 visa under s.116(1)(b) because the first named applicant no longer had the benefit of an approved business sponsorship. As a result of this decision, the second named applicant’s (the dependant spouse’s), visa was also cancelled.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. 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.

6. On 30 August 2018 the Tribunal wrote to the applicants inviting them to provide to the Tribunal written comments or a response in relation to the Department’s decision.

7. On 12 September 2018 the applicants’ migration agent requested an extension of time in which to respond to the Tribunal’s request and on 15 October 2018 the Tribunal extended the time in which to comply until 29 October 2018.

8. On 26 October 2018 the first named applicant wrote to the Tribunal advising that he was not informed of the cancellation of the sponsorship on 3 November 2016 and complained that he was not responsible for the sponsorship cancellation. Further, he complained that he was unable to secure the sponsorship of an “accredited” sponsor as they backed out from an arrangement once they discovered that his visa was cancelled. He did not provide any information in relation to the identity of this possible sponsor. The letter reads as if he was of the view that he had been barred for a 3 year period from finding an alternative sponsor as a result of the decision to the cancel the sponsor’s approval. The first named visa applicant concluded by stating that it was not necessary for him to attend a hearing as he appeared to have, mistakenly, assumed that a favourable decision could be made upon the evidence before the Tribunal. The Tribunal notes that this evidence contradicts the evidence provided by the first named applicant in relation to securing an alternative sponsor in GENERAL. The application made in relation to GENERAL was dated 13 February 2017, well within the 3 year bar the first named applicant suggested he was subject to. The Tribunal notes that the first named applicant’s own conduct belies this conclusion and consequently the Tribunal places little weight on the claim that the first named applicant was prejudiced in relation to finding an alternative sponsor.

9. The Tribunal responded by inviting the applicants to attend a hearing on 11 December 2018. The hearing was cancelled at the request of the first named applicant for health reasons and rescheduled for 22 January 2019.

   The hearing

10. The applicants appeared before the Tribunal on 22 January 2019 to give evidence and present arguments.

11. The applicants were represented in relation to the review by their registered migration agent. The representative also attended the Tribunal hearing.

12. The first named applicant provided a history to the Tribunal that he first arrived in Australia as a student. Having qualified as a mechanic he obtained the support and the sponsorship to work for PREMIUM to enable the grant of a 457 visa. The visa was granted on 6 March 2015.The first named applicant stated that he was working with RACV roadside assist under an arrangement with the sponsor. He resigned from this employment on 7 December 2016 as he was concerned that things were not right in the workplace and he feared losing the sponsorship.

13. The first named applicant stated that he had worked on a part time basis for PREMIUM. .He stated that he was performing work and not being paid. However, following the hearing the first named applicant submitted an unverifiable payslip allegedly from PREMIUM which states that he did receive payment. The payslip is further referred to in paragraph 20 of this decision. The first named applicant stated that he then went in search of another sponsor. The Tribunal notes that this claim is inconsistent with his claim that he felt barred for a 3 year period to do so. Nonetheless, at the time of his resignation he had not secured that sponsorship. As stated above Premium‘s sponsorship rights had been cancelled by the Department on 3 November 2016 prior to the departure of the first named applicant.

14. On 13 February 2017 the applicants were advised in writing that the Department intended to cancel their visas for failing to comply with condition 8107(3) of the first named applicant’s visa. On 13 February 2017 the Department acknowledged in writing the application to become a standard business sponsor and nomination from GENERAL AUTOMOTIVE SERVICE PTY LTD (GENERAL). The first name applicant had referred to this nomination, although it does not appear by name, in the response to the Department’s invitation on 20 February 2017. The nomination was made by GENERAL 102 days after the cancellation of the PREMIUM’s sponsorship approval. The first named applicant submitted a copy of the Department’s decision with their application for review and was therefore aware of the department’s decision and the reasons given for it.

15. On 20 February 2017 the agent for the applicants confirmed the lodging of a new application for the first named applicant requesting the cancellation process to be halted.

16. The first named applicant stated that he found a new sponsor in GENERAL. Departmental records, as referred to in the Department’s decision, reveal that GENERAL’s application for approval to act as such was refused on 17 March 2017 together with the associated nomination to sponsor the first named applicant. The first named applicant stated that he had worked for a few weeks for the GENERAL but was not paid for this work.

17. On 17 March 2017, GENERAL made a second application for approval to be a standard business sponsor. Ultimately, on 6 February 2018 that application was also refused. The Tribunal has no information about any other nominations.

18. The first named applicant stated that he lived on his savings during this time and did not work. The first name applicant stated that given the length of time that he has been in Australia he would like to stay.

19. At the conclusion of the hearing the applicants were given the opportunity to provide any further material upon which he relied by 28 February 2019.

    Post hearing

20. On 28 February 2019 the current agent for the applicants sent to the Tribunal what appears to be a payslip dated 15 August 2016 for a pay period from 25 July 2016 to 7 August 2016. The identity of who prepared the document was not provided however, the ABN number of the original sponsor was listed at the head of the document. The document however, is not on any form of letterhead and does not identify any particular superannuation fund when referring to superannuation payments. The applicants also sent a letter dated 26 February 2019 stating that the GENERAL lodged 2 nominations on 13 February 2017 and 17 March 2017 and argued that given that there was a new nomination in place the visas should not have been cancelled during the processing of the nomination. Further the Tribunal notes that the cancellation of the visas occurred on 18 April 2017 after the refusal to approve the GENERAL as an approved sponsor. The Tribunal notes that there has been no information submitted as to any other proposed sponsors.

21. 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

22. 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) when the visa holder has not complied with a condition of the visa. 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?

    s.116(1)(b) - non-compliance with conditions

23. 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 case the relevant condition is 8107(3) which states that if the relevant visa was a Subclass 457 visa that was granted on the basis that the holder met the requirements of subclass 457.223(2) or (4) then the visa holder is required not to cease such employment for more than 90 consecutive days ( 8107(3)(b)).

24. As previously noted the first-named applicant’s subclass 457 visa had been granted on 6 March 2015 and PREMIUM was the nominator. PREMIUM’s approval to act as such was cancelled on 3 November 2016. The first-named applicant had given evidence that they resigned from the first sponsor on 7 December 2016 without securing another sponsor. On 13 February 2017 the Department wrote to the first-named applicant advising him of its intention to cancel his visa. On the same date a nomination application was received from GENERAL. Both were refused on 17 March 2017. On that day GENERAL made a further application to become a sponsor and nominate the first named applicant which was also refused on 17 April 2017. As at 17 April 2017 no other nominations had been lodged.102 days had passed from 3 November 2016 to the date of the visa cancellation, a period exceeding 90 consecutive days.

25. For these reasons the Tribunal is satisfied that the ground for cancellation in subsection 116(1)(b) exists. The Tribunal must now consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

26. 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’

    The purpose of the first-named applicant’s travel to and stay in Australia

27. The Tribunal finds that the first named applicant was issued a subclass 457 visa on 6 March 2015 to enable him to remain in Australia and work for her sponsoring employer PREMIUM as a mechanic.

28. As stated above PREMIUM lost approved sponsorship status on 3 November 2016. The first named applicant did not secure the sponsorship of an approved sponsor thereafter as the two applications by GENERAL were unsuccessful. The visa cancellation occurred following the refusal of the last of the applications by GENERAL. Consequently the Tribunal finds that the purpose for the grant of the subclass 457 visa to the first named applicant ceased to exist from 3 November 2016.

29. The Tribunal finds that this evidence favours the exercise of the discretion to cancel the visa.

    Circumstances of the visa cancellation

30. The cancellation process was triggered by the fact that PREMIUM’s sponsorship approval was cancelled. The further attempts to secure sponsorship with GENERAL were unsuccessful. The Tribunal is not persuaded by the claims that the first named applicant felt that he had been barred from seeking alternative sponsorship for a 3 year period following the cancellation of PREMIUM’S approval as an application was made by GENERAL to be a sponsor well within this timeframe. Further, the first named applicant claimed that he was uncomfortable in the workplace at PREMIUM as he felt that things were not right and therefore resigned. He gave further oral evidence that he was not being paid for work he had performed. As a result of his decision to resign the first named applicant was without the benefit of a valid sponsor for a period of time in excess of 90 consecutive days. The first named applicant had expressed his distress that he was not informed of the cancellation of PREMIUM’s sponsorship approval. However, the Tribunal notes that the first named applicant resigned in any event and had not secured an alternative approved sponsor before doing so and thereby put themselves in the precarious position of not having a sponsor in support of their visa. This evidence favours the exercise of the discretion to cancel the visa.

    Compliance with visa conditions

31. On the evidence before the Tribunal the first named applicant has not complied with condition 8107(3) of his visa. Whilst there has been no further evidence of non-compliance with any other condition of the visa the evidence before the Tribunal is sufficient to favour the exercise of the discretion to cancel the visa.

    Degree of hardship

32. The first named applicant stated that if his visa were to be cancelled he would have difficulty in obtaining work in Sri Lanka and he would have to start all over again. He advised that his wife is pregnant and that his first agent had not warned him of the risks of his circumstances. However, the first named applicant did not provide evidence of this claim. The Tribunal notes however that the condition was part of the visa and therefore places little weight on this claim.

33. The first applicant advised that his wife and co-applicant is pregnant and in the event that his visa was cancelled she too would face the cancellation of her visa. However, the first named applicant did not provide any evidence in support of this contention and had obtained skills in Australia that could be utilised upon his return. The Tribunal notes that he stated that he has not been working and therefore the Tribunal can discern no greater hardship in terms of working prospects if the visa were to be cancelled. No evidence was submitted as to the prejudice that would be suffered by his pregnant wife if his visa were to be cancelled.

34. The Tribunal finds that the evidence favours the exercise of the discretion to cancel the visa.

    Past and present behaviour to the Department

35. The Tribunal does not have any evidence before it of the first named applicant not cooperating with the Department. However, in light of the evidence before the Tribunal little weight is given to this consideration.

    Other cancellations

36. .Pursuant to section 140 of the Act if the first-named applicant had his visa cancelled it follows that his dependant wife’s visa would also be cancelled. The first-named applicant gave evidence that his wife is pregnant. Whilst the cancellation of the visa will be a change in circumstances the Tribunal has no evidence before it of any particular hardship to be faced by the applicants. The Tribunal finds that the evidence before it therefore favours the exercise of the discretion to cancel the visa.

    International obligations

    There is no evidence before the Tribunal so as to suggest that Australia is in breach of its International obligations. There is no evidence of an entitlement to a protection visa nor that the impending birth of the applicants’ first child would alter the outcome in this case.

    The applicants may be subject to detention under section 189 and removal under section 198 of the Act. However, they could temporarily retain their bridging visas in order to remain in the community lawfully to finalise their affairs prior to departure.

    The Tribunal therefore finds that the evidence favours the exercise of the discretion to cancel the visa.

    Conclusion

37. Based on the evidence before it and taking into account all the relevant circumstances, on balance, the Tribunal finds that the reasons for exercising the discretion not to cancel the applicant’s subclass 457 visa do not outweigh the reasons to cancel the visa. In considering the circumstances as a whole the Tribunal concludes that the visa should be cancelled

    DECISION

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

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

    Danielle Galvin
    Member