Pradhan (Migration)

[2018] AATA 5682

Pradhan (Migration) [2018] AATA 5682 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bidhan Pradhan
Ms Moneeka Joshi

CASE NUMBER:  1717929

HOME AFFAIRS REFERENCE(S):           BCC2017/1844648

MEMBER:Alan McMurran

DATE:2 Nov 2018

PLACE OF DECISION:  Sydney

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 02 November 2018 at 3:12pm

CATCHWORDS
MIGRATION – cancellation – Temporary Work (Skilled) visa – Subclass 457 – no genuine intention to work in nominated occupation – Chef – non-compliance with visa condition for extended period – substantial breach – lack of information – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, r 2.43

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 9 August 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).

2. The delegate cancelled the visa under s.116 (g) on the basis that the delegate was not satisfied that the applicant, as a holder of a 457 visa, continues to have a genuine intention to work in the nominated occupation of chef. The delegate considered other relevant factors including:

a.     the purpose of the applicant’s travel to and stay in Australia,

b.    the extent of compliance with any conditions of the visa,

c.    the degree of hardship that may be caused

d.    past and present behaviour towards the Department

e.    any international obligations that may be breached, and

f.   any other relevant factors

Having considered the above factors, on balance, the delegate was not satisfied the weight of evidence was in favour of making a decision not to cancel the visa.

3.    The issue on review similarly is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.    The applicant is a Nepalese citizen who arrived in Australia on 4 August 2007 on a student visa. The applicant met his wife in Australia whom he married in August 2009 and who is the second named applicant.

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.

6.    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.

7.    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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

8.    The applicants appeared before the Tribunal on 13 August 2018 to give evidence and present arguments. The Tribunal received oral evidence from Bidhan Pradhan and Moneeka Joshi. The hearing was conducted without an interpreter. The Tribunal explained the purpose of the hearing to the applicants who appeared to understand. The Tribunal did not detect any issues that arose as a consequence of the hearing being conducted in the English language, and the applicants did not raise any concerns in that regard.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 (g).

2. 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)(g) - prescribed ground

3. A visa may be cancelled under s.116 (1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43 (1)(kb)(ii) is relevant.

4. The regulation specifies that a prescribed ground exists where in the case of the holder of a Subclass 457 Temporary work (Skilled) Visa that, despite the grant of the visa, the Minister is satisfied that the holder has ceased to have a genuine intention to perform the occupation.

5. There is no definition of what particular facts, matters or circumstances might lead to the conclusion that the visa holder’s intention has “ceased”. The Tribunal must therefore have regard to the objective facts relevant to the applicant and the circumstances surrounding the applicant’s failure to continue in the stated occupation.

   The Hearing

6. Prior to the hearing, the applicant did not provide any documents or make any submissions.

7. The Tribunal had available to it the information on the Tribunal’s file and the Department’s file. That information included a copy of the Department’s cancellation consideration, reasons for decision, the applicant’s email of 16 July 2017 in response to receipt of an intended cancellation notice, a copy of the applicant’s IELTS test report and extract from a PAYG salary summary from Woolworths Ltd dated 29 June 2017.

8. The Tribunal was concerned at the lack of information and the fact the applicant may not fully appreciate the importance of the hearing process. The hearing confirmed the Tribunal’s view that the applicant had not considered what further information might be available and that he was not fully aware of what the outcome might or could be following the hearing.

9. The Tribunal explained to the applicants that if the ground for cancellation were made out, it still had to consider how to exercise its discretion in the circumstances of this particular case.

10. The Tribunal notes that the applicant appeared unaccompanied at the hearing other than by the second named applicant and did not have formal submissions or documents to tender and relied only upon his own recollection and statements in answer to questions from the Tribunal.

11. Prior to coming to Australia, the applicant studied commerce for one year at a university in Nepal. The applicant studied hospitality in Melbourne at the Holmes Institute for one year, and then enrolled in a cookery course at the Imperial College in Melbourne in 2008, completing a course in 2009 and obtaining an Advanced Diploma in Hospitality.

12. In 2010, the applicant obtained a bridging visa with work rights, and found some casual employment as a cook. He was working at an Indian restaurant in Melbourne, which closed sometime in 2011. The applicant said at hearing that when the restaurant closed, he did not have sufficient experience as a cook to enable him to obtain a substantive visa.

13. The second named applicant applied for and obtained a student visa to study business management in Melbourne in 2011, and the applicant was granted a visa as a secondary applicant in that application. He obtained some casual work as a private security guard and worked in that capacity in the period from 2012 to 2014, while the couple were living in Melbourne.

14. The second named applicant’s visa was due to expire in 2015, and on 1 January 2015 the applicant applied for a 457 Visa, sponsored by a friend who owned a restaurant called Ratatouille. According to the Department’s record, the applicant was granted the visa on 29 September 2015.

15. The applicant said that the restaurant closed in about June 2016, when the owner told the applicant the restaurant was being closed while renovated, but would reopen. The applicant said several months passed, and finally he was told by the owner the business was being sold. In the meantime, the applicant survived on earnings from the second-named applicant packing shelves at Woolworths.

16. The applicant said he was out of work from about the middle of 2016 while he waited to see if the restaurant would open with the new owner. He said he was told in about September 2016 he would not be employed and he began looking for other work. He said he did not tell the Department about his new circumstances and did not appear to be aware that it was mandatory as a condition of the existing 457 visa for him to do so.

17. The applicant said that he spent several months from the middle of 2016 until early 2017 looking for other employment, but could not find a sponsor. He said he made 20 or 30 applications including an application online to work as a cook, and was prepared to travel outside Melbourne to Bendigo and Geelong where he said he was offered a job in a Nepaelse restaurant, but without a sponsorship. He said this went on for several more months, while he searched for work and the second named applicant was working full-time at Woolworths.

18. The Tribunal asked him why he didn’t communicate with his migration agent or inform the Department. The applicant said he thought he would be “fine”, and would eventually find work, but now realised he had made a mistake. He said that he found out in August 2017 his visa had been cancelled as the Department discovered the restaurant had closed and he no longer had a sponsor. He said the agent told him, even though he had not communicated with anybody else. He said he thought his Visa was valid until 2019, so long as he found another job. He said that he did not have the money to pay for advice or another visa.

19. The applicant said he had a friend in Sydney and he and the second named respondent decided to move there in August 2017 as it was cheaper for them to live with a friend they knew in Sydney who could provide cheap accommodation. He said the second named applicant was able to transfer her employment from Woolworths at Preston in Melbourne to Woolworths at Hurstville.

20. The applicant said he received an email shortly after arriving in Sydney (on 9 August 2017) from the representative in Melbourne, as a result of which the applicant visited the Department’s office in Sydney and was interviewed in August 2017. At the same time, on 9 August 2017, the applicant lodged this application for review. The applicant was asked why he lodged the application when he had no sponsor, and he replied that it was because “the employer person had lied to me”.

21. The applicant said that he could have accommodation in Sydney until July 2019 and that he hoped to find work by then. He said he was still unemployed and looking for jobs online, as a cook. He said “no one hires cooks” to sponsor them and it is difficult to find work. It was the applicant’s understanding that all he had to do was find another job in order to solve his problem with the Department. He said he was advised by his agent to wait for the review outcome before formally applying for another sponsorship with a sponsor, if he could find one.

22. At the hearing, the applicant said he had an opportunity for possible employment as a cook at a Nepalese restaurant in Rockdale in Sydney. He said he had been offered a position, and the restaurant owner was prepared to sponsor him. No nomination application however had yet been lodged.

23. The second named applicant also gave evidence and said she would have continued her studies, if the applicant had not been offered the sponsorship and obtained the 457 visa when he did. She said the friend who found the sponsor in the first place had misled them and was unreliable. She said she did not realise up until the visa was cancelled, that her visa would be cancelled as a result of her husband losing his employment, and which was due to no fault of their own.

24. The Tribunal again asked whether they had sought advice and had been made aware of the consequences of the cancellation of the visas. The applicant said no one explained to him that he could not change his employer while his visa “continued”, and which he thought continued until expiry, regardless of any employment. He said he only realised too late that he needed to find another sponsor in order to keep visa rights. He said his agent was too expensive and that was why he did not seek current advice. The applicant said that he cooperated with the Department once he realised it was important and went in for an interview in August 2017, and then applied for this review.

25. The Tribunal explained the provisions in regulation 2.43 and the need to satisfy the genuine intention criterion to avoid cancellation under the Act. The Tribunal put to the applicants that the grounds for cancellation under section 116 appeared to exist, and did they have any comment, to which the applicant repeated it was not his fault and he had good reason to believe he would continue to be paid once the restaurant reopened and that his employment would continue. The applicant said that he had continued to pay tax while he was employed and thought he had been compliant, for at least part of the period of his visa. He had however not complied in the period from early 2016 when he was stood down and then ultimately lost his job.

26. The Tribunal asked him about what hardship he might suffer as a consequence of the cancellation. The applicant responded that he had been in Australia for 11 years and it would be very difficult for him to return to Nepal now. He said that he personally had health problems and got sick with vomiting and diarrhoea and had a dust allergy and hay fever which would be exacerbated if he returned to Nepal. He also said he had a dog now in Australia which he wished to keep and look after. He said his parents would not be happy with him and he would not be welcome back in Nepal. He said neither he nor the second named applicant had ever worked in Nepal and had returned only for a short period after the earthquake in 2015 to see if their families were safe.

27. The second named applicant said that she had continuing employment with Woolworths and also part-time employment two days a week as a dental assistant. She said she would like to continue studies to become a dental hygienist.

28. The applicant said that he had prospects to obtain employment as a security guard with Wilson Security, and he had obtained a security license some time ago. And also he had prospects of employment at the Nepalese restaurant in Rockdale called “The Third Eye”.

29. The Tribunal notes that the applicants did not attempt to provide any information in support of the statements made at hearing, about prospects for further employment, or the current situation, or the situation in Nepal with their families.

30. Having considered all the information presented at the hearing, the Tribunal is satisfied that the ground for cancellation in s.116 ((g) exists. Having heard the applicant’s description of various work he has undertaken and the fact he is looking for whatever work might become available, the Tribunal is satisfied that the applicant has ceased to have a genuine intention to perform the occupation of cook.

31. As that ground does not require mandatory cancellation under s.116 (3), the Tribunal must proceed to consider in the proper exercise of its discretion whether the visa should be cancelled.

    Consideration of discretion

32. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion.

33. 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 (PAM 3) “General visa cancellation powers”.

34. Matters which might weigh in the applicant’s favour include the fact that: –

    a.The applicant lost his employment through no fault of his own;

    b.The applicant did not have sufficient funds to seek proper or adequate advice as to the consequence of losing his employment and of a cancellation;

    c.what advice was received by the applicant was unhelpful and possibly misleading either from the migration representative and/or from his previous employer and those in the community attempting to advise him;

    d.when he became aware of the cancellation, the applicant voluntarily presented himself to the Department for interview and cooperated; the applicant did not attempt to or intentionally hide in the community;

    e.the applicant made this application for review without adequate advice or consideration or understanding of the consequences and without appreciating that there was a need for him to find another sponsor or nominator to have any prospects of obtaining employment and a valid visa and to be able to present that evidence before the review process was completed.

35. Against the exercise of discretion, the Tribunal notes that the applicant has not established any compelling or urgent need to remain in Australia, although it is accepted his family in Nepal might be unhappy about his return.

36. That on its own is not a sufficient reason. The applicant’s non-compliance with his visa condition has continued for an extended period, and notwithstanding his recent cooperation is a substantial breach. Notwithstanding many efforts on his own part, the applicant has been unable to secure other employment or a sponsor to nominate him for another occupation. The Tribunal finds that the applicant has little or no opportunities for other work as he currently presents himself.

37. The applicant was given an opportunity following the hearing to provide evidence to the Tribunal that he had found a new restaurant sponsor, and that opportunity was extended from the hearing date on 13 August 2018 up until the date of this decision. The applicant said that the proposed sponsor, Third Eye, was unable to complete the sponsorship application at the moment, as the owner was attending “the biggest festival season of Nepal” and “didn’t have time to process my nomination as of yet”.

38. The Tribunal responded by letter that comments were to be received by 26 October 2018 supporting either a further extension of time on the basis of an impending nomination application, or details of a new nomination application by another sponsor. The Tribunal had extended time on at least two occasions, without being given any definite response. As at the date of decision, the applicant has been unable to confirm there is any current nomination or nomination pending in favour of the applicant, whether as a cook or for some other occupation.

39. The Tribunal accepts that there will be a degree of hardship in the applicants having to return to Nepal, including taking into account the extent of time already spent in Australia. The applicants however are still relatively young, have no other family or children and in light of their experience may well be equipped to obtain employment on their return. The Tribunal finds there are no international obligations affecting Australia and which might be impacted by a cancellation in this case.

40. The Tribunal has taken into account and carefully considered the matters discussed at the hearing, noting again that the applicants were not assisted by any representation or formal submissions and the Tribunal was not assisted by any supporting documents or evidence corroborating the applicant’s position.

41. The exercise of the discretion must be carefully weighed and the Tribunal has endeavoured to take account of all the matters raised including the applicant’s present circumstances, where he is unemployed due to no fault of his own initially, but where a substantial period has now passed and without the applicant’s employment prospects having improved in any way. The proposed new sponsor has delayed, is not assisting and has not put forward any information to the Tribunal about a proposed sponsorship or nomination, and there is no reason to consider any further extensions of time to allow a propose nomination to proceed.

1. Weighing up all the factors, the Tribunal is not persuaded and finds this is not a case where its discretion should be exercised so as not to cancel the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa be cancelled.

   DECISION

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

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

   Alan McMurran
   Member