Sandhu (Migration)

Sandhu (Migration) [2018] AATA 5275 (27 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gurmeet Singh Sandhu
Mrs Amanpreet Kaur Sandhu
Mr Harman Singh Sandhu
CASE NUMBER:  1719107
HOME AFFAIRS REFERENCE(S):           BCC2017/1956542
MEMBER:Antonio Dronjic
DATE:27 November 2018
PLACE OF DECISION:  Melbourne
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 27 November 2018 at 4:48pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – cancellation of the approval of sponsor as a standard business sponsor – consideration of discretion – purpose of applicant's stay in Australia – ceased employment at sponsoring business – did not seek alternative employment – extent of the applicant's compliance with visa conditions – engaged in work outside of approved nominated position – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Condition 8107
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

This is an application for review of a decision dated 18 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).
The delegate cancelled the visa under s.116 (1)(b) of the Act. The delegate found that the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, namely as a transport company manager, but has carried out work as a truck driver. The delegate found that the applicant had breached condition 8107 which is attached to the applicant’s visa by specifically breaching paragraph 8107(3)(a)(i).
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. The other applicants’ visas were 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 those other visas 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.
Background to the cancellation of the applicant’s visa
The primary decision record of 18 August 2017, provided by the applicant to the Tribunal with the review application sets out the reasons for the delegates’ decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:
·On 6 July 2015, the applicant was granted a Subclass 457 Business (Long Stay) visa;
·The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa (11 March 2015) was Grigora Logistics Pty Ltd;
·Prior to being granted a Subclass 457 visa, the applicant was working for Grigora Logistics Pty Ltd as a truck driver from 18 June 2013 to 1 February 2015;
·The occupation listed for the applicant in the most recently approved nomination for the visa is transport company manager;
·In an interview with departmental officers on 3 March 2017, the applicant has failed to provide reasonable explanation of his role and daily tasks, and any documentary evidence of his role. Based on the site visits conducted by the officers of the Department, the applicant appeared to be only working as a driver to ‘’assist during the busy period. During the interview, the officers noted that the office white board contained information relating to the number of driver visits made to an airport client, with the applicant listed as 10 visits. The applicant stated that his 10 visits were for meetings only and not delivery;
·Based on the three site visits made by monitoring officers and the interview conducted with the applicant, the delegate concluded that the applicant was not completing the majority of duties as approved at nomination stage and that a portion of his role involves making deliveries;
·A notice of intention to consider cancellation (NOICC) was issued 27 July 2017;
·On 10 August 2017, the applicant responded in writing to NOICC;
·On 18 August 2017, the delegate proceeded to cancel the applicant’s visa.
The applicants applied to the Tribunal on 23 August 2017 for review of the visa cancellation and with the application submitted a copy of the primary decision record.
On 21 September 2018, the Department, on the Tribunal request, provided:
·A copy of the Notice of Intention to take action (NOITA) against the applicant’s sponsor - Grigora Logistics Pty Ltd dated 10 May 2017; and
·A copy of the Notice of Decision to cancel the sponsorship and bar Grigora Logistics Pty Ltd from sponsoring more people until 31 May 2020 (dated 31 May 2017).
On 24 September 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it 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 27 November 2018.
On 15 October 2018, the applicant’s representative submitted:
·A copy of the applicant’s statutory declaration dated 10 October 2018, stating that he worked for the sponsoring business from 20 July 2015 to 30 May 2017 and that he has driven trucks on two occasions, only as requested by his employer;
·A copy letter from Grigora Logistics Pty Ltd dated 14 July 2017 signed by Mr Loukas, the Managing Director of the sponsoring business, stating that the applicant’s role was a Company Transport Manager and that he worked on a full time basis from 20 July 2015 to 31 May 2017;
·Copy e-mails sent and received by the applicant as evidence of undertaking duties of a transport company manager (tribunal folios 43-54);
·Copy bank statements from November 2015 to 22 May 2017 as evidence of wages paid by the sponsoring business to the applicant’s bank account;
·Copy Notices of Tax Assessment for the applicant (June 2016)
·Copy Applicant’s Tax Return for 2015-2016 financial year as evidence of wages received from the sponsoring business; and
·Copy of the applicant’s PAYG payment summary for the year ending 30 June 2017.
The applicant appeared before the Tribunal on 27 November 2018 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.
The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the hearing. The tribunal explained why it does not have jurisdiction in respect of the secondary applicants. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with the condition imposed on his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(a)(i) that the visa holder must work only in the occupation that was listed in the most recently approved nomination.
The Tribunal further explained to the applicant that, if satisfied that a ground or grounds for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
The applicant is 31 years of age national of India. He is married and has a child who is 6 years of age and attends school in Australia. In India, the applicant has completed the equivalent of year 12 and did not work. His two brothers and parents still live in India. He married in 2012. His wife is also from India where her parents and sister reside. Neither he nor his wife has any relatives in Australia.
He confirmed in his evidence that he submitted to the Department a statutory declaration dated 9 August 2017 and to the Tribunal a statutory declaration dated 10 October 2018. He confirmed that everything stated in those statutory declarations is true and correct and that he does not want to change or add anything to those declarations.
The applicant first came to Australia in January 2008 as a holder of a Student visa. By 2012, he had completed a Certificate III and IV in Commercial Cookery, Diploma and an Advanced Diploma in Business Management. He obtained a heavy vehicle drivers licence in 2013 and has been working as a truck driver for Grigora Logistics Pty Ltd from 18 June 2013 to 1 February 2015.
On 6 July 2015, the applicant was granted a Subclass 457 visa based on the sponsorship and nomination by an Australian business Grigora Logistics Pty Ltd. He stated that he received a visa grant letter and understood the conditions imposed on his visa by the Department.
He commenced his full time employment as a company transport manager in July 2015. He gave evidence that the business provided warehousing and transportation services. In 2015, the business employed eight to 10 full time employees including the applicant. The business operated 12-13 trucks and had four full time drivers and seven or eight drivers engaged as subcontractors. He maintained in his evidence that he worked as a truck driver only on two occasions and only upon requests being made by the business owner. The applicant stated that the business did not keep any log books containing information as to who and when drove trucks.
He ceased employment at the sponsoring business on 18 August 2017. He gave evidence that the Department’s officers told him that he can no longer work for this business and should find an alternative business sponsor in Australia.
He stated that on 30 August 2017, he was granted a bridging visa E that did not contain work limitations. I enquired if he re-commenced employment at Grigora Logistics Pty Ltd and the applicant responded that he did not because the Department cancelled their sponsorship approval approximately at the same time his visa was cancelled. He further stated that he lodged an application for permanent visa with the Department in July 2017 and is still waiting for the Department’s decision on this application.
I asked if he commenced employment with another sponsoring business since 30 August 2017 and the applicant stated that he did not. He stated that his wife operates a cleaning business and provides for the family and that he decided to take care of his son.
The Tribunal raised additional issue with the applicant. The Tribunal informed the applicant that another ground for cancellation may be applicable in this case as prescribed by s.116 (1)(g). 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)(l)(IV) is relevant. (The sponsor has been cancelled or barred under section 140M of the Act).
The Tribunal’s Oral Invitation to Comment on or Respond to Information:
In accordance with s.359AA of the Act, the Tribunal informed the applicant that there was information before the Tribunal obtained from the Department that would be the reason or part of a reason for affirming the decision that is under review. The information was:
The Department made two unannounced site visits to the business premises of the sponsoring business, on 19 and 25 January 2017. On both occasions they did not find any employees at the premises. Doors were closed and nobody was there. No staff members were available for the interview. The officers contacted the business owner Mr Loukas by telephone and were told that you and Mr Papavasileiou were both on the road driving trucks, declaring that it was a busy period for the business and all employees were driving to help out.
Based on the information obtained from the Department, the Grigora Logistics Pty Ltd sponsorship was cancelled on 31 May 2017 and the business was barred from sponsoring another person until 31 May 2020.
The Tribunal explained why this information is relevant to the current review and consequences if the Tribunal relies on this information. The Tribunal clarified with the applicant that he understood the information, its relevance to the Tribunal’s decision and consequences of the Tribunal relying on the information. The Tribunal then invited the applicant to comment on or respond to the information and informed him that he could request additional time to do so.
The applicant stated that he is not seeking additional time to provide his comments on or response to the information. He stated that Mr Loukas only stated that he was ‘on the road’ and did not state that he was driving trucks on these two occasions. He stated that he remembers that he was with clients on 19 and 27 January 2017. He further stated that during the interview he had with the officers of the Department on 3 March 2017, he admitted to driving trucks on two occasions on request of his employer.
I explained to the applicant that, based on the evidence before me, I am satisfied that the grounds for cancellation in s.116(1)(b) and 116(1)(g) are made up and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
I invited the applicant to state if there any matters he wants me to take into account in considering whether the visa should be cancelled.
He stated that he came to Australia when he was 19 years of age, that there is no future if he and his family go back to India as it very difficult to find employment in India, that his son was born in Australia and is attending school and that it will be very difficult for his son to adjust to life and schooling in India.
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
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 grounds set out in s.116(1)(b) and s.116(1)(g). If satisfied that the ground or grounds 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?
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 was attached to the applicant’s visa.
This condition, inter alia requires that the applicant must work only in the occupation listed in the most recently approved nomination for the holder. In this matter, the applicant was nominated to work as a transport company manager and the associated business nomination was approved by the Department on 11 March 2015.
Based on the evidence before it, including the oral evidence from the applicant and his statutory declaration of 10 October 2018, I am satisfied that, at least on two occasions, the applicant worked for the sponsoring business as a truck driver.
Based on the applicant’s oral evidence and the Departmental records, I am satisfied that Grigora Logistics Pty Ltd sponsorship approval was cancelled by the Department on 31 May 2017. Accordingly, a ground prescribed in r.2.43 (1)(l)(iv) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116 (g) exists.
As neither of the grounds stated above 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
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’.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 at [55]
Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.
The purpose of the visa holder’s travel to and stay in Australia
The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Grigora Logistics Pty Ltd as a transport company manager on a temporary basis.
The applicant ceased employment at the sponsoring business on 18 August 2017, being the same day his visa was cancelled by the Department. Despite being granted a bridging visa E with no work limitations on 30 August 2017, the applicant did not re-commence employment at Grigora Logistics Pty Ltd. Nor he commenced employment with another Australian business as of the time of my decision. He decided to look after his son instead and rely on the income generated by his wife who operates a cleaning business in Australia. I have also taken into consideration the fact that the applicant’s visa would, but for the cancellation, ceased on 6 July 2019.
As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor in August 2017. I give significant weight to this consideration.
The reason for and extent of the breach
The applicant’s visa was subject to 8107 condition. I am satisfied on the evidence before me that the applicant was aware of the condition imposed on his Subclass 457 visa.

The applicant conceded in his evidence that, after he was granted a Subclass 457 visa and nominated to work as a transport company manager, he worked as a truck driver for the sponsoring business on two occasions. In his statutory declaration of 10 October 2018, he stated that he worked as a truck driver on the request of his employer.
During the telephone conversation, the applicant’s employer, Mr Loukas informed the Department that on 19 and 25 January 2017 the applicant was ‘on the road’ declaring that it was a busy period for the business and all employees were driving to help out. The applicant denied in his evidence that he was driving trucks on 19 and 25 January 2017, when the Department made unannounced site visit at the business premises and could not find any employee working at the premises.
I note that the applicant was previously engaged by the same business as a truck driver from June 2013 to February 2015. I find it difficult to accept that the applicant drove truck on two occasions only since he was granted a Subclass 457 visa. In his statutory declaration, the applicant stated that he drove trucks if he was requested to do so by his employer.
I consider the non-compliance to be significant, as the temporary business entry scheme is predicated upon a visa holder being employed by an approved business sponsor in an approved nominated position.
Circumstances in which ground of cancellation arose
Whilst I accept that the circumstances in which the ground for cancellation arose under s.116(1)(g) (prescribed grounds under r.2.43) are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased. However, I find that the circumstances in which the ground for cancellation arose under s.116(1)(b) ( breach of 8107 condition) were brought about by the applicant, and were not beyond his control.
Past and present conduct of the visa holder towards the department
There is no evidence before me that the applicant previously breached visa conditions. I am satisfied that he has been co-operative with the Department.
Degree of hardship that may be caused;
I have taken into consideration the applicant’s evidence that in India, he had completed the equivalent of year 12 and that his siblings and parents live in India. The applicant claims that the visa cancellation would cause hardship to himself and his family. He stated that he came to Australia when he was 19 years of age, that there is no future in India because it is very difficult to find employment. He gave evidence that that his son was born in Australia and is attending school and that it will be very difficult for his son to adjust to life and schooling in India.
I accept that the applicant has been living in Australia since 2008 and that both he and his family have established ties to the Australian community. I have taken into consideration the applicant’s evidence that neither he nor his wife have blood relatives in Australia.
Considering his family composition, formal education completed in India and Australia and his work experience gained in Australia, I do not accept the applicant’s claim that he will not be able to re-establish himself in India.
I accept that the applicant’s son is attending school in Australia and has been living in this country since birth. I accept that the applicant’s son may have some difficulties adjusting to a different education system in India. However, I am not satisfied that the visa cancellation would cause significant hardship if the child’s studies in Australia were disrupted. I consider that the purpose of a Subclass 457 visa is not to enable family members to study in Australia.
Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.
I am satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would
result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the
Act which prevent the person from making a valid visa application without the Minister’s
Intervention
The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
The Tribunal is mindful that Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.
Whether there would be consequential cancellations under s.140
Whilst the applicant’s wife’s and son’s visas were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his wife and son.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
Based on the evidence before me, I am not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.
The impact on any victims of family violence
There is no evidence before the Tribunal regarding this matter.
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. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.
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.
Antonio Dronjic
Member

[2018] AATA 5275

27 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies