REGMI (Migration)

[2020] AATA 3489

REGMI (Migration) [2020] AATA 3489 (6 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shrawan Regmi

Mrs Riya Bhandari Regmi

Master Simon Regmi

Miss Shaima Regmi

CASE NUMBER:  1930433

HOME AFFAIRS REFERENCE(S):          BCC2019/1959824

MEMBER:John Cipolla

DATE:6 July 2020

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 other applicants.

Statement made on 6 July 2020 at 4:26pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – unemployed for more than 60 days – employment terminated after refusing to repay tax and superannuation components of salary in cash – no new sponsor or employment – discretion to cancel visa – visa expired in any case – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140

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 11 October 2019 made by a delegate of the Minister for Home Affairs 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. On 7 May 2018 the applicant was granted a Subclass 457 (Temporary Work (Skilled)) visa. On 11 October 2019 the Departmental delegate decided under s.116(1)(b) of the Migration Act to cancel this visa on the basis that the holder had not complied with condition 8107(3)(b) which requires that if employment with the sponsor ceases, the period in which the visa holder remains unemployed must not exceed 60 consecutive days.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the visa holder on 3 September 2019. The delegate noted that that applicant had been approved to work for the sponsor R and Mannat Pty Ltd and that the sponsor had informed the Department that the visa holder had ceased employment with them on 2 October 2018. The delegate noted that the applicant had not thereafter obtained employment within 60 days as required by condition 8107(3)(b) of his visa, therefore enlivening the grounds for cancellation. The applicant responded to the NOICC. The applicant acknowledged that his visa was terminated by R and Mannat Pty Ltd and that at the time of responding to the NOICC he did not have a current sponsor. The applicant advised that he was terminated on 20 July 2018 and then he was re-hired verbally and then terminated again on 19 August 2018. The applicant stated that during the course of his employment he was the subject of adverse employment practices.  The applicant explained that he was paid a salary but had to repay some of it in cash to his employer to cover the tax component and superannuation component but he refused to pay this and believes this is the reason he was terminated.  The applicant submitted that the employer exploited vulnerable migrants.  The applicant explained that the cancellation of his visa had a huge toll on both himself and his wife and his children. The applicant implored the Department to give him a few months to find another sponsor. 

4. On 11 October 2019 the delegate cancelled the visa holder’s visa. The delegate had regard to the relevant discretionary factors to determine whether or not having regard to these factors the applicant’s visa should be cancelled.  The delegate concluded that the visa should be cancelled.

5. The applicant appeared before the Tribunal on 1 July 2020 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   Does the ground for cancellation exist?

8. 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) which says that if the visa holder ceases employment the period during which the holder ceases employment must not exceed 60 days.

9. The applicant’s employer notified the Department that the applicant ceased employment with them effective 2 October 2018.  At hearing the applicant confirmed that he ceased employment with his employer on 2 October 2018. The Tribunal asked the applicant whether he agreed that the ground for cancellation of his visa existed and he advised that he did not initially understand but since last year he was aware of this.

10. 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 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. The Tribunal discussed with the applicant at hearing the purpose for his travel to and stay in Australia. With regard to his travel history to Australia, the applicant advised the Tribunal that he initially travelled to Australia in 2016 as the holder of a Subclass 457 visa, sponsored to work for a business in Darwin as a cook. The applicant advised that this visa was valid from 20 June 2016 until 9 August 2017 and that the applicant during the time he held this visa changed sponsors and commenced work with the most recent employer R and Mannat Pty Ltd, working as a cook.  The Tribunal noted that the applicant had been granted a Subclass 457 visa to work for this employer on 7 May 2018 which was valid until 7 May 2020.  The Tribunal noted that this visa was for a finite period with the expectation that the applicant would work as per his contract of employment with the sponsoring employer for a two year period. The Tribunal also noted that this visa had now expired and that in the event that the Tribunal decided to set the cancellation aside there would be no visa to reinstate due to its expiration. 

13. The Tribunal noted that the applicant had travelled to Australia to work as a cook and that the objective of the Subclass 457 visa was to meet skills shortages in the Australian community. The Tribunal noted that the applicant had not been employed as a 457 visa holder since the termination of his employment in October 2018 and had not been able to secure a new sponsor since that time.  The Tribunal also noted the abolition of the 457 subclass in March 2018 and its replacement with the Subclass 482 visa. The Tribunal asked the applicant why he had remained in Australia with his young family facing these difficulties and why he had not returned to Nepal where he would at least have family support.  The Tribunal invited the applicant to comment on this. The applicant stated that he had travelled to Australia with his wife and young son, and that his wife had fallen pregnant in Australia and that their daughter was born in 2019. The applicant explained how he was actively looking for a new sponsor during this period without success.

14. The applicant stated that he had a number of work trials that did not work out and that he had been looking for a good employer since he had lodged his application for review with the AAT but it had not worked out. The Tribunal asked the applicant whether he had found a job and he advised that he found one business in Adelaide where there was a prospect or work but that the business had experienced problems as a result of COVID 19. He advised it was a pizza and pasta restaurant. The applicant explained that the position in Adelaide was delayed due to COVID 19 for, at the very least, 6 months.

15. The Tribunal asked the applicant how he had been surviving financially since he lost his employment, and the applicant advised that his wife had been working as a food service assistant and had been undertaking some work in a Subway franchise but was not currently employed. He advised that he and his wife were deriving some support from friends.

16. The Tribunal gives this consideration some weight in favour of the visa cancellation.

17. The Tribunal considered the extent to which the applicant had complied with visa conditions. The evidence of the applicant was that he had complied with the conditions attached to his 457 up until the point of his termination on 2 October 2018.

18. The applicant gave evidence, as noted above that his employer forced him to repay the tax and superannuation components of his salary in cash, something he refused to do and that this led to the termination of his employment.  The Tribunal asked the applicant whether he reported his employer to Fair Work or to the Department and he advised he did not. The applicant then as noted has attempted to pursue alternative employment and an alternative sponsorship without any success. The Tribunal finds that the applicant’s failure to comply with condition 8107(3)(b) of his Subclass 457 visa was attributable to him being terminated by his sponsoring employer on 2 October 2018. The Tribunal finds that the applicant’s failure to comply with this condition was beyond his control, and the Tribunal gives some weight to this consideration in favour of not cancelling the visa.

19. The Tribunal discussed with the applicant at hearing the hardship that may be caused to he and his family as a consequence of the cancellation of the his visa. The applicant stated that the cancellation will have a big impact on the family. The applicant stated that his son is used to life and living conditions in Australia and that his daughter who was born in Australia on 13 August 2019 is also used to Australia. The applicant stated that if his visa was cancelled and he had to go home to Nepal he would experience financial problems and he would also have difficulty finding work.  The applicant stated there were greater opportunities available to him in Australia. He also stated that because of COVID 19 there were no flights to Nepal.

20. The Tribunal notes that the grant of a Subclass 457 visa is for a finite period of up to four years and that there may be a prospect beyond that visa of permanent residence, but this is not guaranteed. The Tribunal notes that the cancellation of the applicant’s visa for breach of condition 8107, as a consequence of him terminated by his sponsoring employer, has caused him and his wife hardship and stress, and the Tribunal gives this consideration some weight against visa cancellation.

21. With regard to the circumstances in which the ground for cancellation arose the Departmental delegate noted that the evidence before them indicated that the sponsoring employer had notified the Department that the applicant ceased employment with them on 02 October 2018. The Tribunal notes that the circumstances in which the ground for cancellation arose were beyond the visa applicants control because he had been terminated. However, the applicant had 60 days from the cessation of employment to find a new sponsoring employer and the evidence before the Tribunal indicates that as at the hearing date 1 July 2020 the applicant had not been able to successfully find a new sponsoring employer willing and able to take him on. The legislative regime envisages a period of 60 days and does not provide an open-ended invitation to an applicant to find an alternate sponsor beyond that time. The Tribunal gives this consideration weight in favour of cancelling the applicant’s visa.

22. The evidence before the Tribunal indicates that the applicant’s past and present behaviour towards the Department has been cooperative and the Tribunal gives this consideration some weight against visa cancellation.

23. The Tribunal notes that the applicant has a dependent wife who is a secondary visa applicant along with two dependent children who have been subject to the automatic cancellation of their visas under section 140 of the Migration Act. The Tribunal gives this consideration little weight in favour of visa cancellation.

24. The Tribunal has had regard to the fact that the applicant may be liable to be detained under section 189 of the Migration Act or indeed removed under section 198 of the Migration Act and that he will be subject to section 48 of the Migration Act limiting his options to apply for further visas to Australia. The Tribunal gives this consideration little weight against visa cancellation.

25. There is no evidence that has been provided to the Tribunal which would lead to the Tribunal finding that it would be in breach of Australia’s non-refoulement obligations if the applicant was removed from Australia. The Tribunal gives this consideration some weight in favour of visa cancellation.

26. The applicant provided evidence at hearing indicating that the cancellation of his visa for breach of condition 8107 was due to him being terminated by his employer. The applicant also provided evidence that during the time of his employment he believes he was subject to abuse in terms demands to repay the taxation and superannuation component of his salary, something he refused to do. The Tribunal notes that overseas employees are vulnerable to abuse and raised with the applicant whether he reported the actions of his employer to the Department or to Fair Work, unfortunately for ensuring probity in the system he did not.

27. The Tribunal has considered all of the relevant discretionary considerations both singularly and cumulatively. The Tribunal notes that the grant of a Subclass 457 visa leads to temporary residence for a period of up to 4 years to work for a sponsoring employer in Australia. The evidence indicates that 5 months into the visa the applicant was terminated by his sponsoring employer. The evidence before the Tribunal indicates that since October 2018 to date the applicant has failed to find an alternative sponsoring employer. As noted the legislation envisages in condition 8107(3) that if the holder ceases employment with the sponsoring employer (for any reason) the period which the applicant ceases employment must not exceed 60 consecutive days. The evidence before the Tribunal indicates that in the 60 consecutive days since the cessation of his employment the applicant has not been able to seek work with a new sponsoring employer.  The Tribunal having regard to the relevant discretionary considerations finds when those considerations are cumulatively considered that the applicant’s visa in the circumstances of this case should be cancelled.

28. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

30. The Tribunal has no jurisdiction with respect to other applicants.

    John Cipolla
    Senior Member