Shrestha (Migration)

[2019] AATA 1378

Shrestha (Migration) [2019] AATA 1378 (6 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kapil Shrestha
Mrs Irina Pradhananga
Ms Ireka Shrestha

CASE NUMBER:  1900628

HOME AFFAIRS REFERENCE(S):           BCC2018/4083655 BCC20184083655

MEMBER:Alan McMurran

DATE:6 may 2019

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 06 May 2019 at 2:46pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – termination letter effected by employer – consideration of discretion – no favourable information before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision dated 2 January 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. The delegate cancelled the visa under s.116 (1)(b)) on the basis that the applicant had ceased employment with the approved sponsor for a period exceeding 60 consecutive days. The delegate found that it was a condition of the visa that if the visa holder ceased employment, the period during which the visa holder ceased employment with the sponsor must not exceed 60 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. 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.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Background

5. The applicant is a 35-year-old citizen of Nepal. The second and third named applicants are respectively the applicant’s spouse and child

6. The applicant arrived in Australia as a student in July 2008. The applicant obtained a 457 visa in October 2016. The applicant was employed at the Illinois Hotel at Five Dock in Sydney by an approved sponsor, Ioke Pty Limited (the sponsor) The applicant’s occupation was in the role of Hotel or Motel Manager (ANZSCO 141311).

7. The nomination by the sponsor was approved on 4 August 2017. On 30 August 2017, the sponsor served the applicant with a termination notice, where the employment “has been terminated immediately”. The termination notice provided reasons, as referred to below. The sponsor sent an email to the Department accordingly on 4 September 2017.

8. There is no evidence that the applicant challenged the termination. The applicant says however that he believed his employment “was still active” and that he was merely asked “to take a leave”. The applicant has not worked in the employment with the sponsor since 30 August 2017.

9. On 16 July 2018, the sponsor sent a further email to the Department advising that the applicant’s employment was terminated on 30 August 2017.

10. On 27 November 2018, the Department provided the applicant with written notice of intention to consider cancellation under section 119 of the Act.

11. On 28 November 2018, the applicant responded to the Department advising that “it has come to my surprise because I was under the impression that my employment was still active.” In the same response, the applicant states “I stayed unemployed with no income for 6 months in a hope that I will be invited for the employment”. In his response, the applicant claims he was “treated unfairly” and that the Department should “consider my case as an unfair dismissal”. The applicant asked the Department not to cancel a visa and “allow me some time to find another sponsor”.

12. On 2 January 2019, the Department made a decision to cancel the applicant’s visa under section 116 of the Act. A copy of the notice of decision was emailed to the applicant. The Department’s record shows the email delivery to the stated email address for the applicant was unsuccessful.

13. The applicant however on 9 January 2019 lodged this application for review. The applicant provided a copy of the record of decision with the application. The application also included copies of passport extracts for each of the applicants. It is clear that the applicant had received the Notice of the decision to cancel the visa. There is no information to show that the applicant has attempted to follow up his application as to its progress.

14. The applicant has not provided any further submissions or information to the Tribunal in support of his application. The Tribunal wrote to the applicant on 10 January 2019, acknowledging receipt of the application and which acknowledgement informs the applicant he can provide further information or evidence. The notice asks him to “please do so as soon as possible.”

15. On 28 March 2019, the Tribunal wrote to the applicant under section 359A of the Act, informing him that “failure to have employment by an approved sponsor for the nominated occupation would be the reason or part of the reason for affirming the decision that is under review”. The letter further stated that “there is no information to indicate that he recommenced employment with your sponsor”.

16. The Tribunal’s letter was sent to the applicant’s nominated email address and was delivered without any return notification. The applicant did not respond to the Tribunal’s letter which required a response by no later than 11 April 2019, or if requested, any further extension of time sought. As a result, the applicant lost any entitlement he might otherwise have had to appear to give evidence and present arguments in the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. The Tribunal has proceeded to deal with the matter on the information presently available in the Department’s file[1] and the Tribunal’s case file for this review. Other than the information contained in those files, there is no further information or submissions made by the applicant for consideration.

    [1] BCC 2018/4083655

    Does the ground for cancellation exist?

19. 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. This condition requires that if the visa holder ceases employment, this can only be for a maximum of 60 consecutive days before the visa holder is then in breach of the visa condition.

20. The Tribunal is satisfied on the information before it that the sponsor served the applicant with an employment termination letter on 30 August 2017.[2]

    [2] DIBP case file f 13

21. The termination letter makes allegations that the applicant has “been taking money from the safe without head office approval” and that “as a result safe’s monies have been missing frequently”. The letter further asserts that “you were caught playing Pokies whilst on the duty” and accuses the applicant of “repeated misconducts”. For these reasons the employment was “terminated immediately” in accordance with “company policies”. The letter is signed by Christian Hardin, as General Manager for the sponsor hotel.

22. On 28 November 2018, the Department received a reply to the Notice of intention to consider cancellation, which it is convenient to set out in full, as it contains the only submissions received from the applicant:

    “Dear case officer

    I received your email on 27 November 2018 at 1:39:05 pm, regarding the notice of intention to consider cancellation of Temporary Business Entry (class UC).

    It has come to my surprise because I was under the impression that my employment was still active. Because my employer has not been formally terminated and no such notice has been given by my sponsor till date. I was under the impression that the employer wants me to take a leave and despite of my multiple attempt to find out if I still have the shift, I was unable to obtain the clear answer form the employer.

    I stayed unemployed with no income for 6 months and in the hope that I will be invited for the employment. I started facing a financial hardship. I am a father for 2.5 year old child and have a partner which I need to support. Therefore, I started looking for a part-time employment until I receive a formal termination notice from my employer. This is a matter of a fair trading now that I come to know I don’t have an employment via Department of Home Affairs intention to cancel my visa notice.

    Why I think the ground(s) for cancellation does(do) not exist

    I understand that my obligation is to notify Department of home affairs if there are any change of circumstances including termination of my employment by the sponsor. It is not clear till date that I have been terminated. You could request a sponsor and check with them if they have followed a proper protocol of terminate an employee. The statement of my employer on my last communication was, I was instructed to take a leave. Interpretation of take a leave in not a formal termination. I have not received any emails, text message or written documents that suggest that I have been formally terminated from my nominated occupation.

    I have other staff members currently facing the similar issues where they have not been informed about their employment status and instead were told to take a leave.

    Why I think my visa should not be cancelled

    I have been treated unfairly by the employer. I have always been loyal and hard-working employee and never deserve to be treated this way. Because I was not given enough information and was never clear on my employment status, I suffered from 6 months of significant financial loss. I am a temporary residence which means I must still pay for my family health insurance, rent, child fees and all other household related cost. I am currently working part-time which barely supports my family now. Visa cancellation means it will impact me and my family financially and mentally.

    I would like you to consider my case as an unfair dismissal and sponsor has not fulfil its obligations by doing the rightful.

    A further request you to not to cancel my visa and allow me some time to find another sponsor.”(sic)

23. The Department wrote to the sponsor by email on 14 December 2018, requesting evidence that the applicant was formally notified of the termination of his employment on 30 August 2017.

24. On 14 December 2018, the sponsor replied by email attaching a copy of the termination letter dated 30 August 2017, sent to the applicant to a Rockdale address. The Tribunal notes the Rockdale address used by the sponsor was different to the address used by the Department, and to which the Department sent its Notice of intention to consider cancellation by registered post.

25. There is no other evidence before the Tribunal to show what transpired between the applicant and the sponsor. It is clear however and the Tribunal is satisfied on the available evidence that the termination was effected by the sponsor on 30 August 2017. It is not a matter for the Tribunal to determine whether or not the termination was “unfair”, but only whether or not it occurred, and if so when it occurred.

26. The Tribunal places little weight on the applicant’s comment that he thought his employment was “still active”. This was said by him more than 12 months after the termination by the sponsor, and where the applicant had not attended the workplace in that period. It is not credible that the applicant thought his employment was “still active” after such a lengthy period of absence.

27. The applicant concedes he was not being paid, and did not attend the hotel for any shift after 30 August 2017. The Tribunal also finds that it was not reasonable for the applicant to consider that he was “on leave”, when the nomination had been approved on 4 August 2017, and the employment under the approved nomination had only then commenced.

28. Taking into account all the circumstances available on the information to the Tribunal, the Tribunal finds that the applicant ceased his employment on 30 August 2017, and did not resume employment with the sponsor for a period in excess of 60 days. The applicant has conceded as much in his response where he acknowledges he remained unemployed for 6 months and suffered consequent financial hardship. The applicant has not produced evidence of any dispute with the employer that was raised directly with the sponsor or with the authority (Fair Work Commission). Since receipt of that letter, the applicant has made no further contact with the Department, or with the Tribunal.

29. 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

30. 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’.

31. The factors for consideration generally are:

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

    b.extent of compliance with his visa conditions

    c.any degree of hardship that may be caused

    d.circumstances surrounding the cancellation and whether these were beyond the visa holder’s control

    e.past and present behaviour

    f.consequential cancellations

    g.mandatory legal consequences

    h.international obligations of Australia

    i.any family or business ties, and

    j.any other relevant matters

32. The Tribunal has already noted that there is very little information available to it about the applicant or his present circumstances. This is so, notwithstanding invitations for him to provide information and make submissions.

33. The Tribunal is satisfied that the applicant was aware of the conditions attached to his visa and that it was necessary for him to work only in the occupation listed (hotel manager) and approved in the nomination by the sponsor. Following from the applicant’s response of 28 November 2018, the Tribunal is also satisfied the applicant was aware that he must resume his employment with the sponsor within 60 consecutive days of having ceased that employment.

34. The applicant came to Australia as a student, following which he was able to secure employment and a 457 visa. The circumstances of that employment as made known to the Tribunal are referred to above. It is further clear from that evidence that the applicant has not complied with his visa conditions, as he has not resumed employment with his sponsor in the occupation of hotel manager and in fact has not secured any other employment or successful nomination and visa approval. The Tribunal cannot attach any weight to consideration of these factors in favour of the visa applicant.

35. The Tribunal is satisfied that the circumstances of cancellation may result in some degree of hardship which would automatically follow from the dislocation occasioned by having to return to Nepal. The applicant has been in Australia for a period of approximately 10 years and in which time he has no doubt established ties to the community. There is however no evidence in this regard and no information available about how the applicant might be affected, or what hardship might be caused, and the Tribunal cannot place a great deal of weight on these considerations. The applicant is still a young man with considerable skills and education, which might assist him upon returning to his native Nepal.

36. The applicant has not provided any information about his spouse or her circumstances and the fact her visa is cancelled as a result of the consequential provisions in section 140 of the Act. The Tribunal notes it has no information before it or evidence provided concerning the past or present behaviour of the applicant (or his spouse) or how they both might be affected by cancellation. The Tribunal is not aware of any family or business ties established by the applicant or his spouse in Australia. No evidence is provided as to any difficulty or particular circumstance which may confront the applicants upon return to Nepal, other than unspecified financial and mental considerations, and little weight can be attributed where there is no information provided.

37. The circumstances surrounding cancellation following his employment termination have been touched upon by the applicant in his email, where he refers to believing he was on leave. That however is not explained, and the Tribunal is not in a position to determine the issues surrounding the applicant’s termination from his employment by the sponsor, nor to consider any of the allegations made either by the sponsor or by the applicant. It is clear however that the applicant did not resume his employment with the sponsor in the nominated occupation, and there is no evidence of any attempts made by the applicant to resolve the issue, take appropriate action or seek advice, or to find alternative employment with another sponsor. The Tribunal can therefore place little weight upon the surrounding circumstances of the termination of the employment in considering the exercise of its discretion.

38. There are no international obligations of which the Tribunal is aware which might be impugned by a decision to cancel the applicant’s visa. Nor have any other relevant matters been drawn to the Tribunal’s attention.

39. Having carefully considered all of the information available and referred to in these reasons following a review of the Department’s file and the Tribunal’s file, and the fact no further information has been provided by the applicant and where he was provided with a reasonable opportunity to do so, the Tribunal finds there are no matters or circumstances upon which it might rely to exercise its discretion in favour of the applicant not to cancel the visa.

40. Considering the circumstances as a whole, the Tribunal concludes that on the weight of the evidence, the visa should be cancelled

    DECISION

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

42. The Tribunal has no jurisdiction with respect to the other applicants.

    Alan McMurran
    Member