Ramanvir Singh (Migration)

[2020] AATA 1574

Ramanvir Singh (Migration) [2020] AATA 1574 (30 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ramanvir Singh

CASE NUMBER:  1813163

HOME AFFAIRS REFERENCE(S):          BCC2018/562160

MEMBER:Nicola Findson

DATE:30 April 2020

PLACE OF DECISION:  Perth

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

Statement made on 30 April 2020 at 5:35pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 90 days – discretion to cancel visa – circumstance outside applicant’s control – closure of sponsor’s business – sponsor’s promise of job in new business did not eventuate – treatment for stress and depression – difficulty in getting new job – no work to date of review decision – plans for further study – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 May 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 applicant provided to the Tribunal a copy of the delegate’s decision.  It records that the applicant was sponsored by Shree Guru Gobind Pty Ltd. He was granted a Subclass 457 visa on 6 January 2016 to work in the nominated occupation of Café or Restaurant Manager.  Condition 8107 was attached to the visa.  This condition requires the applicant to work in the occupation listed in the approved nomination and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.  The Department was informed that the applicant had ceased employment with his sponsor on 31 July 2017.

3. On 6 April 2018, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa.  The applicant responded to the NOICC on 15 April 2018.  He did not dispute that the ground for cancellation existed.  He indicated in his response that, among other things, the loss of his job had caused him a great deal of stress and he had been unable to find alternative employment.    

4. On 2 May 2018, the delegate cancelled the visa under s.116(1)(b). The delegate found that the applicant had not complied with condition 8107 and was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa

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

6. The applicant appeared before the Tribunal on 2 October 2019, to give evidence and present arguments.

7. 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

8. 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?

9. 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 attached to the applicant’s visa. It relevantly requires the applicant to work only in the occupation listed in the most recently approved nomination and, unless subclause (3A) applies, to only work in a position in the business of the sponsor, or an associated entity of the sponsor. Also, condition 8107(3)(b) requires that if the applicant ceases employment, the period during which he ceases must not exceed 90 consecutive days.

10. At the hearing, the applicant confirmed to the Tribunal that he started working for the sponsor in 2016.  He confirmed that he ceased that employment in July 2017.  The reasons he ceased working for the sponsor are discussed in more detail below.

11. On the evidence before it, the Tribunal finds the applicant ceased employment with his sponsor in July 2017.  He has not returned to work for the sponsor since that time.  The Tribunal finds the applicant has ceased employment for a period of more than 90 consecutive days.  He is therefore in breach of condition 8107.

12. For these reasons, the Tribunal is satisfied that the ground cancellation in s.116(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

13. 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’.

14. At the hearing, the Tribunal discussed with the applicant the circumstances identified in the Department’s guidelines, and all other relevant matters.  The following is a summary of the oral evidence provided at the hearing.

15. The applicant told the Tribunal that he had originally come to Australia as a student in July 2014.  He said that after completing two semesters of a Master of Business Administration, which he found very difficult, he changed his course of study to a Diploma in Management and attained this qualification in six months.  He said that he was granted a Subclass 457 visa in January 2016, and that he had worked for his sponsor as a Restaurant Manager from that date until 31 July 2017. 

16. The applicant indicated that the circumstances leading to the breach were due to factors beyond his control.  He told the Tribunal that his employment had been going so well his sponsor had actually lodged a nomination application in relation to him, which if approved would have enabled him to remain in Australia on a permanent basis.  The applicant told the Tribunal that the nomination application was refused in June 2017, and although his sponsor sought a review of the refusal decision, he was so upset about this decision that he took two or three weeks off work at about that time.  He said that when he returned to work, he became aware that the sponsor’s business was not going well and would have to close.  He said his employer told him that he wanted to open another restaurant and to employ him in that new business.  The applicant told the Tribunal that despite these assurances, he became very stressed and depressed when the sponsor’s business closed and at the uncertainty of his situation.  He said that “going from a good job with a good salary to absolutely nothing” made him feel “very low”. He said he returned to India to spend time with his mother from 2 September to 21 October 2017, during which time he was diagnosed with, and treated for, depression.  When he returned to Australia, in October 2017, the applicant’s sponsor told him that things were “not financially good” and that he would not be opening another restaurant.    

17. The applicant indicated to the Tribunal that his mental health remained very fragile after he arrived back in Australia.  He said he consulted a General Practitioner, who prescribed him medication and referred him to a psychologist, but he did not have the funds to continue with any treatment.

18. The applicant told the Tribunal that about a month after he returned to Australia, at his mother’s urging to do something about his situation, he started looking for another sponsor.  However, he found it very difficult to get work over the holiday season and at a time when there was much uncertainty about changes proposed to be made to the Subclass 457 scheme. He said he applied for jobs at several Indian restaurants around Perth, but was ultimately unsuccessful in finding any work.

19. The Tribunal observed that there are strict requirements that attach to Subclass 457 visas, which are clearly set out in visa grant notifications.  The applicant, by way of response, indicated that he did not appreciate that he only had 90 days to find another sponsor.  He said that an agent had arranged his visa and that he had not had regard to the conditions outlined in the paperwork. 

20. The applicant said he had not worked at all since he ceased working for his sponsor, and has therefore been unemployed in Australia from July 2017 to present.  When asked how he was supporting himself, he told the Tribunal that he relies on support from his mother and brother, who is an Australian permanent resident. He told the Tribunal that after his visa was cancelled, he had received advice from a migration agent to the effect that the Department would seek a bond from him, if he applied for work rights while on his Bridging visa.  He said that this advice, coupled with the fact that he had no money, informed his decision not to seek to work rights.

21. The Tribunal observed that the temporary work visa granted to the applicant was granted to enable him to work in a nominated position and occupation with his approved sponsor.  It observed that in circumstances where he was no longer working in that position or with that sponsor, the purpose for the visa no longer existed.  The Tribunal asked the applicant why in these circumstances he had remained in Australia and whether there was any reason why he should continue to remain. The applicant told the Tribunal that he came to Australia for a legitimate purpose; to give himself a better future; and that “spoiling his stay” was not his doing.  He said he hoped to engage in further study in Australia, if his visa cancellation is set aside.  He said he had commenced enrolling in a cookery course before he received the NOICC from the Department.  He also said that his brother is in Australia, and his mother visits Australia frequently, and so he would like to remain here.    

22. The Tribunal asked the applicant if he would suffer hardship if the visa remained cancelled.  The applicant told the Tribunal that he came to Australia for a better future and that there is no future for him in India.  He said he has lived in Australia for several years and has adapted to life here.  He said he would feel like he was starting from zero if he returned to India.  He said he was concerned he would not be able to find work in India, given that he had been unable to do so after he graduated with a Bachelor Degree in Electrical Engineering and prior to him coming to Australia.  He also said he would like to be in a position to support his mother, rather than continue to take help from her. 

23. The Tribunal explored whether there was any reason why he could not return to India.  No matters not already mentioned were raised.

24. The Tribunal has considered the applicant’s purpose for remaining in Australia.  As discussed with the applicant at the hearing, a Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal finds that the purpose of the applicant’s stay in Australia, when granted his visa, was to work in the nominated position for Shree Guru Gobind Pty Ltd. However, this purpose no longer exists as the applicant ceased working for the sponsor in July 2017.  The Tribunal finds that the purpose of the visa is no longer being served by the applicant’s presence in Australia, and indeed has not been served for some time.  The Tribunal has had regard to the applicant’s evidence that he wishes to remain in Australia to undertake further study.  However, this is not the purpose of a Subclass 457 visa, its purpose being to fill a temporary shortage in skilled employment.  The Tribunal has considered the applicant’s evidence that he came to Australia to give himself a better future; because his brother is resident here; and that the breach of the visa condition arose not through any fault of his, but because his sponsor ceased operating.   The Tribunal is not persuaded that these claims, or the applicant’s claim that he would like to study further, constitute a compelling need for him to remain in Australia.  The Tribunal considers that this factor weighs in favour of cancelling the visa.   

25. The Tribunal has had regard to the evidence before it as to the hardship that may be caused if the visa is cancelled.  It has also considered the potential psychological hardship that the applicant will face if the visa is cancelled, in light of his evidence that he has been diagnosed with depression in the past and did not have the funds to continue treatment for it. On the evidence, the Tribunal has difficulty accepting that the applicant will face hardship outweighing his current circumstances if the visa is cancelled.  In the Tribunal’s view, the applicant does have employment prospects in India given that he holds a university qualification from India as well as a qualification attained in Australia, and he has experience working in Australia. The Tribunal acknowledges that the applicant feels he has an obligation to support his mother, but it is unable to reconcile the hardship described in this regard against his evidence that he has not worked in Australia for well over two years, relying on loans and support from his mother and brother.

26. The Tribunal recognises that the applicant has spent a considerable period of time in Australia as a student and subsequently.  The applicant’s evidence is also that his brother is resident in Australia, and his mother spends significant time as a visitor in Australia.  It follows that the Tribunal accepts that the applicant will have connections with Australia and an outcome that requires him to depart Australia will be a source of great disappointment to him.  The Tribunal has had regard to the applicant’s evidence that losing his job and his visa has negatively impacted his mental health.  In the circumstances of this case, the Tribunal attributes some weight to this factor, which would weigh against the cancellation of the visa.

27. The Tribunal has considered the circumstances in which the ground for cancellation arose.  The Tribunal is satisfied that the applicant’s employment ceased because his sponsor closed down the business.  It accepts that this circumstance was outside the applicant’s control and he would have continued to work for the sponsor if he had the choice.  It also accepts that he did make attempts to secure sponsored employment.  However, it notes that it has been well over two years since he ceased employment with Shree Guru Gobind Pty Ltd, and he has not worked at all since that time.  The Tribunal has had regard to the applicant’s claim that a migration agent gave him advice that he would need to pay a bond to apply for work rights while holding a bridging visa. However, the Tribunal is of the view that the applicant has had significant time since the Department’s decision to cancel his visa in May 2018, to secure sponsored employment, as the subject of an approved nomination, and, he has not been able to do this. The Tribunal considers that this factor weighs in favour of the cancellation of the visa.

28. The Tribunal considers that, other than the breach of visa condition 8107, there is no information before the Department which suggests that he has not complied with other conditions, and there is no information about his past and present behaviour towards the Department which would weigh against him.  However, the Tribunal does not find that either of these matters weigh against, or in favour, of the cancellation of the visa. 

29. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.  The Tribunal acknowledges that current global circumstances, that being the pandemic of Covid-19, may impact on the applicant’s ability to depart Australia if his visa is cancelled.  However, it does note that the applicant is able to apply for a bridging visa to enable him to remain in Australia until he is able to return to his home country.  The Tribunal gives these consequences some weight against the cancellation of the visa.

30. The Tribunal has carefully considered and weighed all of the relevant circumstances of the applicant in this case. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa

    DECISION

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

    Nicola Findson
    Member