Sajwan (Migration)

[2018] AATA 1194

Sajwan (Migration) [2018] AATA 1194 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Virendrakumar Singh Sajwan

CASE NUMBER:  1733077

DIBP REFERENCE(S):  BCC2017/3134548

MEMBER:Stavros Georgiadis

DATE:28 March 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 28 March 2018 at 5:50pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Ceased employment with original sponsor – Resignation with original sponsor – Late lodgement of new nomination – Delays out of applicant’s control – Re-approval of sponsor application

LEGISLATION
Migration Act 1958, ss 48, 116, 189
Migration Regulations 1994, r 2.43, Schedule Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 December 2017 made by a delegate of the Minister for Immigration 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) on the basis that the delegate found the applicant was in breach of condition 8107 of his visa as he had ceased employment with the approved Standard Business Sponsor (SBS), The Bombay Bicycle Club Pty Ltd (ATF The Bombay Unit Trust), for more than 90 consecutive days and the delegate considered the factors for cancellation outweighed those not to cancel. 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 appeared before the Tribunal on 26 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Taranpreet Singh Manes who is a current sponsor employer and Director of Tiffinfoods Pty Ltd (ATF The Goodluck Trust) trading as the restaurant known as Taj Tandoor.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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) - comply with conditions 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

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 is attached to the applicant’s visa. This condition requires not more than 90 consecutive days of unemployment with the SBS [8107(3)(b)].

8. The applicant commenced employment on 8 June 2015 with the nominated sponsor, The Bombay Bicycle Club Pty Ltd (ATF The Bombay Unit Trust). The applicant was employed as a Cook. At that time the sponsor was approved as a SBS but this lapsed after the nomination application was made and before a new nomination was approved.

9. The applicant confirmed at the hearing that he gave two weeks’ notice of resignation to The Bombay Bicycle Club Pty Ltd and then ceased employment with that sponsor effective 26 September 2016. He informed the department of this on 7 December 2016. He told the Tribunal when asked, that he though the responsibility for advising the department about this rested with his (former) employer, but subsequently realised otherwise and promptly notified the department.

10. The Tribunal notes that neither the applicant nor the sponsor had informed the department that the applicant had returned to any work with the sponsor, or any associated entity of the sponsor, within 90 days of ceasing employment.  The applicant’s occupation of Cook (ANZSCO 351411) is not an exempt occupation under cl.8107(3A) attached to his visa.  Therefore, in circumstances where he ceased employment for more than 90 consecutive days with the approved SBS, he does not meet the requirements of cl.8107(3)(b) of condition 8107 of his visa.  The visa applicant conceded this at the hearing.

11. 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

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

13. The visa applicant provided reasons in response to the Notice of Intention to Consider Cancellation (NOICC) on 12 December 2017 setting out his view why the visa should not be cancelled. The delegate summarised as follows:

    - The visa holder is subject to a nomination application that has been delayed due to the delayed approval of the proposed sponsor’s SBS application.
    - The visa holder is nominated to an occupation and in an industry which is facing a skills shortage in Australia.
    - After approval of the nomination the visa holder is going to start the duties of Head Chef with a new SBS.
    - The visa holder has otherwise abided by visa condition 8107 since arriving in Australia.
    - Upon cessation of employment with his initial sponsor he has been the subject of the new nomination by his new employer sponsor which was lodged within 90 days.
    - The visa holder has always maintained his health insurance - as required.
    - The visa holder has been under considerable financial pressure whilst waiting for his new nomination to be approved.
    - The cancellation of the visa holder’s visa will put further pressure on him because a review of the cancellation will delay commencement of his employment with his proposed sponsor.
    - Cancellation will also put further pressure on the proposed sponsor as they are already suffering due to the lack of a highly skilled and experienced Head Chef.
    - The cancellation would make the visa holder unlawful and he will have to apply for status resolution so that he can request a review of the decision.  This will further delay the resumption of his job placing him under financial pressure.
    - The visa holder’s new nomination application has been delayed due to the expiry of his proposed new employer’s SBS approval.
    - The proposed sponsor’s new application for SBS approval was refused due to insufficient evidence regarding training benchmarks.
    - The proposed sponsor re-lodged their SBS application which has now been approved.
    - The visa holder’s nomination application was still being processed at the time of the delegate’s decision.
    - The delay in processing the visa holder’s nomination application has been due to circumstances beyond his control.
    - The visa holder resigned from his initial approved sponsor on 26 September 2016.
    - A new nomination in respect of the visa holder was lodged on 25 December 2016, which was within 90 days of cessation of employment with his approved sponsor.
    - This nomination was taken to have never been made as the potential sponsor’s ‘Standard
    Business Sponsor’ application was refused.
    - On 17 September 2017 a nomination application was again lodged by the proposed sponsor for the visa holder to work as Head Chef in that business.
    - On 2 November 2017 the visa holder’s proposed sponsor had their Standard Business
    Sponsor application approved.
    - As at 12 December 2017 the visa holder is a nominee by Nomination application lodged by an approved business sponsor.
    - The visa holder was nominated by an approved business sponsor within 90 days of ceasing employment and has been subject to Nominations applications which have been ‘delayed due to expiry – lodgement – Refusal – re-lodgement and re-approval of the SBS application of the business’.
    - The visa holder informed the department on 7 December 2016 that his employment with
    his original sponsor had ceased.

14. The Tribunal has considered the following relevant factors, having regard to the departmental guidelines and also matters raised by the applicant in his response to the NOICC, the written submissions of 19 March 2018 and the oral evidence before the Tribunal.

    The purpose of the visa holder’s travel and stay in Australia

15. The Tribunal considered whether the visa holder has a compelling need to travel to or remain in Australia. The purpose of the applicant’s travel is to fill a skills shortage and work in Australia for an approved sponsor (SBS) in a skilled occupation.  The relevant background is summarised in the delegate’s decision and set out below.

16. The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is THE BOMBAY BICYCLE CLUB PTY LTD ATF THE BOMBAY UNIT TRUST (the sponsor) whose nomination was approved on 24 February 2015 for the applicant to work for that sponsor in the occupation of Cook (ANZSCO 351411).

17. The reason why the applicant wished to continue to remain in Australia was on the basis of working for a new approved sponsor once his nomination application was approved. As aforementioned, the initial sponsor for the visa, THE BOMBAY BICYCLE CLUB PTY LTD ATF THE BOMBAY UNIT TRUST, had advised the department in writing that the applicant ceased employment with effect from 26 September 2016.  It follows that the purpose for which the visa was granted to the visa holder ended from 25 December 2016 - being 90 consecutive days after the visa holder ceased employment with that sponsor.

18. On 25 December 2016 a new 457 nomination application was lodged by an Australian employer TIFFINFOODS PTY LTD trading as Taj Tandoor restaurant in the Adelaide CBD for the visa holder to work in the occupation of Chef (ANZSCO code: 351311). The SBS had lapsed for the new sponsor and therefore the nomination lodged on 25 December 2016 was deemed otherwise finalised on 29 August 2017 as the new sponsor’s SBS application was refused.

19. On 17 September 2017, approximately one year after the visa holder ceased employment with the original sponsor for the visa, a new 457 nomination application was lodged by TIFFINFOODS PTY LTD for the visa holder to work for that business in the occupation of Chef (ANZSCO 351311). However, that nomination was subsequently refused on 2 November 2017. Following this, on 7 November 2017 a further 457 nomination application was lodged by TIFFINFOODS PTY LTD for the visa holder to work in the occupation of Chef (ANZSCO 351311).

20. The Tribunal notes the delegate’s comments that “a 457 Temporary Work (Skilled) visa holder can only commence working for a new employer once a new 457 nomination application has been approved, not just lodged - therefore, as has been the case since 26 September 2016, while the visa holder remains in Australia holding a 457 Temporary Work (Skilled) visa, he continues to not be able to lawfully work for any new employer in order to financially support himself while he continues to live in Australia.” 

21. The Tribunal notes the comments made at the time of the delegate’s decision that it was “not known how long it may take for this new 457 nomination application to be processed or indeed whether or not it will end up being approved. It is not in line with the purpose of the visa that beyond 90 days from ceasing employment, a client continues to hold a 457 Temporary Work (Skilled) visa for an extended period of time further to keep looking in Australia for another sponsor or to wait the outcome of a new 457 nomination application that has been lodged outside of that 90 day period, they can do that from overseas.” The delegate also noted the time the new nomination application was lodged was 407 days after ceasing employment which an extended period of time and therefore applied little weight to this consideration as being in the visa holder’s favour.

22. However, the Tribunal notes that since the delegate’s determination, the visa applicant has been granted working rights under a Bridging visa E and since 12 January 2018, has been employed full-time as Head Chef for TIFFINFOODS PTY LTD trading as Taj Tandoor at the Rundle Street, Adelaide restaurant. The Tribunal has taken into consideration that the nomination application was approved on 8 January 2018, being just 2 weeks after the delegate’s decision of 21 December 2017.  From the visa applicant’s current employment  circumstances with an approved sponsor, the Tribunal gives this substantial weight as favouring the applicant when considering the purpose of the visa.

    The extent of the visa holder’s compliance with any conditions subject to which his visa was granted.

23. The applicant submits that other than the admitted breach of condition 8107 in the circumstances described above, there is no evidence before the Tribunal or the department that he has not complied with visa conditions.  The Tribunal accepts that the visa holder has not complied with condition 8107 attached to his 457 Temporary Work (Skilled) visa, but that he has otherwise been compliant and co-operative.  The Tribunal accepts, for example, his submission that he has maintained health insurance whilst on his Subclass 457 visa - in compliance with condition 8501.

24. The Tribunal places some weight in the applicant’s favour, on the fact that the applicant has not compounded his position by not complying with any additional conditions of his visa in any manner knowingly.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship).

25. The applicant had indicated he would be caused hardship if the visa were to be cancelled as he would be under considerable financial pressure whilst waiting for a new nomination to be approved.  He added that the cancellation of his visa would place further pressure on him because the review of the cancellation would cause a delay in commencing his employment with his new proposed sponsor. The applicant added that the cancellation would make him unlawful in Australia and he would thus have to apply for status resolution through a review of the decision that would further delay the resumption of his job, causing him added financial pressure. However, the Tribunal places little weight on this submission given he has since 12 January 2018, already commenced employment with his new sponsor.

26. The Tribunal accepts that through his work in Australia the visa applicant has been able to send funds to support his family (spouse and two children) in India as well as his extended family there including his elderly father (of 90+ years) who is cared for by the applicant’s spouse. The Tribunal has had regard to the circumstances that apart for a period of two years from 2012-2014, the visa applicant has since 2003, held a number of positions in the cookery industry in the Middle-East (to 2010) and in Germany (until 2012) and thereafter, in Australia.  The Tribunal accepts the applicant’s submission that as a result, he has built a reputation and fostered contacts in the food industry which have acted to assist him to secure work as a Head Chef in those locations, but that this is not the case in his home area in India, due to his prolonged absence from there abroad.

27. The visa applicant’s new sponsor also presented at the hearing to give evidence in support of the application.  Mr Manes submitted to the Tribunal that cancellation of the visa would place pressure on his business as the sponsor’s other Director / Partner, Mr Sukhwinder Singh had been undertaking the Chef duties but had departed the business from the end of 2016 to pursue other business interests. His evidence is that the business employs some 15 to 20 employees (depending on seasonal factors) and would likely need to substantially reduce its menu options or otherwise close down if they could not secure the visa applicant.  The submission is that since the time of the departure of the former Chef, the restaurant has been adversely affected due to the lack of a highly skilled and experienced Chef.  Mr Manes added that finding and securing an appropriately skilled and experienced Head Chef, like the applicant, in the location of the business was very difficult and he has had to fill the role intermittently with other staff until the visa applicant was secured as Head Chef.

28. The Tribunal has given some weight to these submissions and the evidence from the current sponsor, in particular the adverse consequences likely to be sustained to this business in Australia. These act in support of the application in the visa applicant’s favour.

    The circumstances in which the ground for cancellation arose.

29. A number of relevant circumstances have been outlined earlier but in addition, the Tribunal notes the ground for cancellation arose (90 consecutive days after non-employment with the sponsor by 25 December 2016) because the applicant had resigned his employment. The visa applicant told the Tribunal that this had occurred against a background where his employer had required him to work excessive hours of between 12 and 15 hours a day, 5 days per week and would not yield on this. He told the Tribunal that his employer had also retained $500.00 (without his authority) from his pay for migration matters and that he was threatened that $5,000.00 would be so retained from his wages in total. The submission is that the visa applicant was brought to the point of resignation because of his dissatisfaction and threats from his employer. The Tribunal accepts that the visa applicant was in a vulnerable and disempowered position in light of the circumstances as it considers the applicant would not likely have resigned his employment unless the situation was one of disharmony. The Tribunal places weight of the circumstances of the applicant’s resignation with the original sponsor which act as favourable to the application.

30. The Tribunal has had regard to (inter alia) submissions as to other circumstances in which the grounds for cancellation arose:

    - The proposed sponsor’s new application for SBS approval was refused due to insufficient evidence regarding training benchmarks.

    - The visa holder’s new nomination application had been delayed due to the expiry of his new employers SBS approval.

    - The proposed sponsor re-lodged the SBS application which was subsequently approved.

    - The visa holder’s nomination application was still being processed at the time of the delegate’s decision of 21 December 2017, but was approved some two weeks after the delegate’s decision.

    - The delay in processing of the visa holder’s nomination application was due to circumstances beyond the applicant’s control, noting that the nomination approval by the department was made some 12 months after the application lodged.

31. The Tribunal accepts that the applicant was nominated by an approved business sponsor within 90 days of ceasing employment with his original sponsor and has been subject to Nomination applications which have been ‘delayed due to expiry, lodgement, refusal, re-lodgement, and re-approval of the SBS application of the business’. The Tribunal accepts the applicant’s submission that substantial delays were outside his control, but on the other hand, places weight on the factor that some of the applications made by him or his sponsor were refused as they could not at the material times, meet the required criteria.

1. The Tribunal has considered that the applicant was represented by a Migration Agent throughout the application processes.  The Tribunal has given consideration also to the circumstances that the Visa Entitlement Verification Online (VEVO) online service is provided by the department for visa holders to check visa details and conditions of their visa.  The Tribunal accepts the position that visa holders are responsible to inform themselves from such available resources and otherwise, of visa conditions applicable to them, know what the visa conditions mean, comply with the visa conditions during their prescribed period of stay, and be aware of the consequences of any visa condition breach.  This includes relevantly, condition 8107 which impacts on the applicant’s eligibility to continue to hold the 457 Temporary Work (Skilled) visa.

   The applicant’s past and present behaviour towards the department.

2. The applicant told the Tribunal that he thought his sponsor would advise the department that he had ceased employment and only realised a short time later that he should advise of this himself.  He said that upon realising this, he informed the department on 7 December 2016 of his resignation of 26 September 2016 - being within 90 days after leaving employment.  The Tribunal accepts that there is no evidence that applicant has been uncooperative with the department and therefore, give some weight to this consideration in the visa applicant’s favour.

   Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

3. The Tribunal accepts the oral evidence that the applicant has family in India including a spouse and two children.  There is no evidence of any relationship breakdown in Australia or suggestion of any relationship breakdown as a result of family violence.  The visa applicant continues to support his family in India by sending financial resources to them from his work in Australia.

4. The applicant confirmed when asked, that there are no other family members or other persons in Australia whose visas may be consequently cancelled along with his. This was corroborated by the departmental records, of no persons in Australia whose visas would, or may, be cancelled under s140 of the Migration Act 1958 as a consequence of the applicant’s visa cancellation. The Tribunal places no weight to this consideration as favouring the applicant.

   Whether Australia has international obligations that would or may be breached as a result of cancelling the applicant’s visa.

5. The Tribunal notes that the applicant has been able to travel freely from and to Australia to India on several recent occasions.  After hearing from the applicant on this factor, the Tribunal accepts that the circumstances of this case are not such that it would engage Australia’s international obligations. 

6. The Tribunal finds that the cancellation of the applicant’s visa would not lead to a breach of Australia’s international obligations. The Tribunal places no weight to this consideration as favouring the applicant.

   Other relevant factors / legal consequences

7. At the time of the delegate’s decision if the visa were to be cancelled the applicant would have become an unlawful non-citizen and liable for detention under s189 and removal under s198 of the Migration Act if he did not voluntarily depart Australia. However, the applicant has since applied for and been granted a Bridging Visa E (on 8 January 2018) allowing him to regularise his visa status and reasonable time to arrange any departure from Australia. He also has had work rights reinstated allowing him additional financial resources from work with his new sponsor. The adverse consequences to the new sponsor have already been discussed and considered.

8. The Tribunal notes that if the applicant intends to return to Australia in the future, he does not need to retain the subject visa in order to do so.  He may apply for a new visa in line with any new purpose for returning to Australia.  This is because where the applicant’s visa is cancelled under the stated grounds, this will not incur any penalty under Public Interest Criterion 4013 to prevent him from applying from overseas for a new visa once he has established his eligibility.

9. The Tribunal places weight on the circumstances that in addition, section 48 of the Act means that the visa holder will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visa applications, causing inconvenience and additional financial strain. This in turn would place further pressure on the new sponsor’s business financially which until recently, has already suffered due to the lack of an appropriately skilled and experienced Head Chef. The Tribunal places some weight to this consideration as favouring the applicant.

   s116(3) Matters to be considered for reasons when visa must be cancelled under s.116

10. Regulation 2.43(2) makes a visa cancellation mandatory if either:

    3.1. The Foreign Minister has personally determined that the visa holder is a person whose presence in Australia:

    ·is, or would be, contrary to Australia's foreign policy interests, or may be directly or indirectly associated with the proliferation of weapons of mass destruction or ....

    ·if the person holds a 'relevant visa' (any of the following 050, 070, 200, 201, 202, 203, 204, 449, 785, 786, 866), that their presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

11. No such determination has been made by the ‘Foreign Minister’ in respect of either alternative above and the Tribunal accepts that this is the case.  The Tribunal also accepts that no assessment has been made by the ASIO in respect of:

    ·Reg. 3.2, the visa holder has been assessed by ASIO to be directly or indirectly a risk to security within the meaning of s4 of the ASIO Act.

12. Having regard to all the available evidence before it discussed, overall the Tribunal considers there have been a number of developments since the delegate’s decision of 21 December 2017 which serve to act as additional factors which act in favour of the applicant’s visa not being cancelled, as balanced against those factors that weigh towards cancelling the visa. 

13. Considering the circumstances as a whole, the Tribunal concludes, on balance, that the visa should not be cancelled.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Stavros Georgiadis
    Member