Ranjodh Singh (Migration)

[2019] AATA 3665

Ranjodh Singh (Migration) [2019] AATA 3665 (31 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranjodh Singh

CASE NUMBER:  1900548

HOME AFFAIRS REFERENCE(S):           BCC2018/4214371

MEMBER:K. Chapman

DATE:31 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 31 July 2019 at 7:53pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – failure to attend scheduled hearing – ground for cancellation – ceased employment with sponsor – sponsor ceased operation – consideration of discretion – purpose of stay ceased to exist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 January 2019 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 delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant did not comply with condition 8107(3)(b) of his Subclass 457 visa because he ceased to work in the nominated occupation of Café or Restaurant Manager, in his most recently approved nomination with Thandi Boyz Pty Ltd, for a period exceeding 90 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. The applicant was granted his most recent Subclass 457 visa on 4 March 2016. The standard business sponsor who nominated him in the most recently approved nomination was Thandi Boyz Pty Ltd (now referred to as ‘the sponsor’). According to the delegate’s visa cancellation decision, the Australian Border Force (ABF) conducted a sponsor monitoring site visit on 23 August 2018 which revealed that the sponsor was no longer trading as explained by a Director of the former business.

4. On 5 December 2018, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa on the basis that he failed to comply with condition 8107 of his Subclass 457 visa by ceasing work with the sponsor in March 2018 and not resuming work with the sponsor or an associated entity within 90 days of that time. The NOICC indicates the sponsor ceased trading in March 2018.

5. The applicant did not respond to the NOICC and on 7 January 2019 the delegate cancelled the applicant’s Subclass 457 (Temporary Work (Skilled)) visa. On 8 January 2019, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with his application.

6. On 12 June 2019, the Tribunal wrote to the applicant, via the email address of his authorised recipient provided with the review application, advising that it had considered all of the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 12:30pm on Tuesday 30 July 2019 and advised that if he did not attend the hearing and a postponement was not granted, it may make a decision on the review without taking any further action to allow or enable him to appear before it. On 23 and 29 July 2019 short message service (SMS) hearing reminders were also sent to the mobile phone number provided by the applicant in his review application.

7. No response was received by the Tribunal to its correspondence of 12 June 2019 and the applicant did not appear at the scheduled time and place of the review hearing. The Tribunal notes that no automated error messages were received in relation to its correspondence of 12 June 2019 or the SMS hearing reminders sent on 23 and 23 July 2019. Following careful consideration, the Tribunal is satisfied that the applicant was properly notified of the review hearing by the aforementioned means. Accordingly, the Tribunal finds that the applicant was invited to appear before it in accordance with the statutory requirements, chose not to attend and has lost his right to attend a review hearing. In the circumstances, the Tribunal is satisfied there is no persuasive reason to delay making a decision on the application for review and this matter has therefore been determined on the available documentary evidence.  

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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) of the Act. 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?

10. A visa may be cancelled under s.116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. Condition 8107(3)(b) provides that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant's visa, which was granted on 4 March 2016 and which, but for its cancellation, was valid until 4 March 2020.

11. It is apparent from the delegate’s visa cancellation decision that the Australian Border Force ascertained the sponsor ceased trading in March 2018. Further, it is apparent that the applicant ceased employment with the sponsor not later than March 2018. Additionally, the delegate’s decision reflects that no subsequent approved nomination by an approved sponsor was in effect regarding the applicant. 

12. The Tribunal places high weight upon the above evidence given its official source. Further, there is no evidence before the Tribunal suggestive of the applicant being the subject of an approved nomination by an approved sponsor at the time of this decision. Following careful consideration, the Tribunal finds that the applicant ceased employment with the sponsoring business, Thandi Boyz Pty Ltd, in March 2018 when the business ceased operation. Additionally, the Tribunal finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. The Tribunal therefore finds that the applicant did not comply with condition 8107(3)(b) attached to his Subclass 457 visa.

13. 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 power to cancel the visa should be exercised.

    Consideration of discretion

14. 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’.

15. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

16. The applicant’s most recent temporary Subclass 457 visa was granted on 4 March 2016. The Tribunal considers that the purpose of the applicant’s stay in Australia holding a Subclass 457 visa is to work for an approved business sponsor, being Thandi Boyz Pty Ltd, in the approved nominated occupation of Café or Restaurant Manager. The applicant ceased this employment in March 2018 when the sponsor ceased trading.

17. The Tribunal notes that the delegate’s visa cancellation decision refers to the applicant making an application for a Regional Sponsored Migration Scheme Subclass 187 visa, and an associated nomination application being made, on 8 December 2018. There is no evidence before the Tribunal as to the status of these applications, nor is there evidence that the applicant has obtained any approved nomination.  

18. The Tribunal considers it a matter of significance that the applicant has not yet obtained a current approved nomination with an approved sponsor. It is worth pausing to reflect that there is no evidence of the applicant having engaged in approved sponsored employment since March 2018, a period of approximately 16 months at the time of this decision.

19. The Tribunal considers that the applicant has had a lengthy period of time in which to seek alternate employment opportunities and become the subject of an approved nomination by an approved sponsor, he could pursue other visa options offshore, he has not worked for an approved sponsor with an approved nomination for a significant period of time, and it is inconsistent with the purpose of the Subclass 457 visa to allow him to remain in Australia pending the pursuit of other visa options. Following careful consideration, the Tribunal considers that the purpose of the applicant’s stay in Australia is no longer extant given the aforementioned matters. On balance, the Tribunal finds that this factor weighs strongly in favour of cancelling the applicant’s visa.

20. As previously outlined, the Tribunal has found that the applicant breached condition 8107(3)(b) of his visa as the period during which he ceased employment with the sponsor exceeded 90 days. The Tribunal notes there is no evidence before the Tribunal that the applicant has failed to comply with visa conditions other than 8107. Following careful consideration, the Tribunal finds that the extent of the applicant’s compliance with visa conditions weighs moderately in favour of cancelling his visa given the centrality of compliance with condition 8107 to the purpose of the grant of the Subclass 457 visa.

21. Regarding the applicant’s past and present conduct towards the Department, there is no evidence before the Tribunal to suggest that he has not been cooperative in his dealings with them. The Tribunal finds that this circumstance weighs moderately against cancelling his visa.

22. The Tribunal has also had regard to the circumstances of the visa cancellation. It is apparent that the applicant ceased employment with the sponsor as they stopped trading. The Tribunal is prepared to accept that the ground for cancellation did not arise due to the applicant’s actions. The Tribunal finds that the circumstances in which the ground for visa cancellation arose weighs moderately against cancelling the applicant’s visa given his actions are not related to the closure of the sponsoring business.

23. The Tribunal has also considered the hardship that may be experienced if the applicant’s visa is cancelled and whether there is any compelling need for him to remain in Australia. There is no evidence before the Tribunal that the applicant has a compelling need to remain in Australia or that he will face any hardship if his visa is cancelled. Following careful consideration, the Tribunal finds that the aforementioned matters weigh neither in favour of, nor against, the cancellation of the applicant’s visa in the circumstances.

24. The Tribunal notes there is no evidence of any secondary visa holders that would receive consequential visa cancellations pursuant to s.140 of the Act if the applicant’s visa is cancelled. This matter weighs neither in favour of, nor against, the cancellation of the applicant’s visa in the circumstances.

25. With respect to the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant does not hold a valid visa he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make further visa applications in Australia and he would be liable to removal from Australia. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s visa given they are the intended consequences of legislation.

26. In relation to the consideration of Australia’s international obligations, there is no evidence before the Tribunal that any such obligations would be breached as a result of the applicant’s visa being cancelled. For completeness, the Tribunal notes there is no evidence before it to suggest that there would be any breach of Australia’s non-refoulement obligations if the applicant’s visa is cancelled. Accordingly, the consideration of Australia’s international obligations weighs neither in favour of, nor against, the cancellation of the applicant’s visa.

27. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there is any other circumstance weighing either in favour of, or against, cancellation of his Subclass 457 visa.   

    CONCLUSION

28. The Tribunal has carefully reflected upon the factors both against, and in favour of, cancelling the applicant’s Subclass 457 visa. As outlined above, the Tribunal notes that some factors weigh against cancellation of the visa. These factors must be carefully balanced with those in favour of the visa cancellation. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

29. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should be cancelled.

    DECISION

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

    K. Chapman
    Member