Shrestha (Migration)

[2019] AATA 1379

Shrestha (Migration) [2019] AATA 1379 (3 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ranjit Shrestha
Mrs Radhika Shrestha

CASE NUMBER:  1837703

HOME AFFAIRS REFERENCE(S):           BCC2018/4180708

MEMBER:Alan McMurran

DATE:3 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 second named applicant.

Statement made on 03 May 2019 at 2:32pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no response to s 359A letter – not entitled to appear before the Tribunal – ground for cancellation – ceased employment with sponsor – employment terminated – consideration of discretion – no favourable information before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359A
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 18 December 2018 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 90 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 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. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

   Background

4. The applicant is a 34-year-old citizen of Nepal. The second named applicant is the visa applicant’s spouse.

5. The applicant first arrived in Australia as a student on 10 September 2009. The applicant was granted a 457 visa in the occupation of Cook on 31 March 2015, sponsored by The Coast Bar and Restaurant Pty Ltd (“the sponsor”) located on the Central Coast in New South Wales and pursuant to a sponsorship agreement made under an approved nomination on 22 January 2018.

6. The sponsor wrote to the Department on 28 June 2018 advising that the nominee was on “unpaid leave” from 22 January 2018 until 1 July 2018. The sponsor further advised by letter to the Department on 4 July 2018, that the applicant “ceased employment” with the sponsor on 1 July 2018. No reasons were provided for either of these circumstances.

7. On 19 November 2018, the Department sent to the applicant a notice of intention to consider cancellation of the applicant’s visa. The applicant disputed the notice, conceding however that in November 2018 he had found alternative employment, not with the sponsor. On 18 December 2018, the applicant’s 457 visa was cancelled. On 21 December 2018, the applicant sought review of that decision.

8. The Tribunal wrote to the review applicant on 27 December 2018 stating that the applicant could provide material or written arguments in support of his application to the Tribunal and should do so as soon as possible.

9. On 28 March 2019, the Tribunal again wrote to the applicant who had not responded, again inviting him to comment or respond in relation to particulars of information which were provided to him under section 359A of the Act. The applicant was required to respond by no later than 11 April 2019, or by the same date to seek an extension of time. The applicant did not respond and lost any entitlement he might otherwise have had to appear in the Tribunal and to give evidence and present arguments.

10. 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.

    [1] BCC 2018/4180708

11. The applicants were represented in relation to the review by their registered migration agent.

12. 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

13. 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.

    Does the ground for cancellation exist?

    S.116 (1)(b) - non-compliance with conditions

14. 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.

15. In this instance condition 8107 attached to the applicant’s visa. This condition requires that the visa holder must work only in the occupation listed in the most recently approved nomination for the visa holder.[2] It also requires the visa holder to commence work within 90 days after the granting of the visa, and that if for any reason the holder ceases employment, the period during which he ceases employment must not exceed 90 consecutive days.[3]

    [2] 8107(3)(a)

    [3] Ibid at (3) (aa) (ii) and (3) (b).

16. The Tribunal has had regard to the two letters from the sponsor, referred to above. These letters have not been disputed by the applicant, and the letter from the sponsor dated 28 June 2018 sets out that the applicant was on “unpaid leave” from 22 January 2018 to 1 July 2018.[4] The letter does not specify any reason for the asserted “leave” or why it is that without commencing work, the visa applicant might have accumulated such an entitlement. The Tribunal is satisfied on that evidence, which the applicant does not expressly dispute, that he did not commence work within 90 days from the granting of the visa.

    [4] DIBP file at ff 1-2.

17. In the notice of intention to consider cancellation from the Department, dated 19 November 2018, the letter makes reference to the correspondence received from the sponsor. In reply to the notice, by email on 23 November 2018, the applicant says that “towards end of June I had a dispute with my employer over my working shift and working hours”. The applicant’s response also says that he took off 5 or 6 days from work following which he “resume our normal duties and my employer might not have remember to send you email back advising you that I was working with them (sic)”.[5] These statements are not supported by the employer and contradict the information in the employer’s earlier letters, and no further explanation was forthcoming from the applicant.

    [5] Ibid at f 13

18. The applicant says that he had “issue” with the sponsor on 15 and 16 September 2018, which he was unable to resolve, and he then “stopped working” for the sponsor from 15 September 2018. The applicant sought to confirm this in a further letter from the sponsor (undated) and which the applicant provided with a follow-up email from him on 27 November 2018. The sponsor’s letter[6] sets out that the applicant “is no longer an employee” and that “He continued to work with us through to the 15 September 2018”.

    [6] DIBP file at f 16

19. The Tribunal is not satisfied as to the integrity of this information, given the contradictory statements from the employer in the employer’s earlier two letters (referred to above), and places little weight on the information from the visa holder. The visa holder could have provided information including wage records, payslips and tax returns together with any other correspondence with the sponsor and himself, or statements such as statutory declarations from others who might have witnessed his employment and corroborated his comments or a more fulsome statement from himself explaining the employment circumstances with the sponsor, which are contradictory. No such information or explanation has been forthcoming, notwithstanding invitations to the applicant for him to provide further information and make submissions.

20. The Tribunal notes that but for the emails from the visa applicant on 23 and 27 November 2018, he has provided no further information either to the Department or to the Tribunal. The Tribunal finds it is satisfied the visa applicant has had an opportunity to further explain the circumstances with his sponsor both as to the commencement of his employment and the termination, and given the unsatisfactory nature of the visa holder’s response by email, the Tribunal finds it is satisfied and gives weight to the information provided by the sponsor that the employment was terminated on 1 July 2018.

21. The Tribunal finds that a period greater than 90 days has elapsed in the period since 1 July 2018. Whether the applicant resumed some employment with the sponsor to work for a short period “through to 15 September 2018” is uncertain, and the Tribunal is not persuaded that was in fact the case. On the available evidence, the Tribunal is satisfied that more than 90 days has elapsed without the applicant resuming employment with the sponsor.

22. The applicant has not sought to provide any further information. The applicant has said in his email that he is seeking another sponsor and nomination, however the Tribunal notes that since 18 March 2018, no further 457 applications may be made, following the termination of the 457 visa scheme and its replacement with the 482 visa scheme. The Tribunal has noted the comments of the delegate in the cancellation decision, which states that a nomination application under the new 482 TSS scheme was refused on 11 December 2018 by the Department, and that no new approved nomination has been secured by the applicant.

23. 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

24. 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’.

25. The factors for consideration generally are:

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

    ·extent of compliance with his visa conditions

    ·any degree of hardship that may be caused

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

    ·past and present behaviour

    ·consequential cancellations

    ·mandatory legal consequences

    ·international obligations of Australia

    ·any family or business ties, and

    ·any other relevant matters

26. 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.

27. 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 (cook) and approved in the nomination by the sponsor. Following from the applicant’s email correspondence of 27 November 2018, the Tribunal is also satisfied the applicant was aware that he must resume his employment with the sponsor within 90 days of having ceased that employment.

28. 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 cook for a period in excess of 90 days, 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.

29. 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.

30. 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.

31. The circumstances surrounding cancellation following his employment termination have been touched upon by the applicant in his email, where he refers to an “issue” with his employer over work shifts. That however is not explained, and the Tribunal is not in a position to determine whether the issue was initiated by the applicant or someone else. It may be that the applicant simply chose to leave his employment following an argument or dispute he was unable to resolve. Nonetheless, there is simply no evidence to show whether the circumstances were beyond the control of the applicant and whether or not it was possible for him to resume his employment with the sponsor in the nominated occupation and to have resolved “the issue”. The Tribunal can therefore place little weight upon the surrounding circumstances of the termination of the employment in considering the exercise of its discretion.

32. 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.

33. 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 a discretion in favour of the applicant not to cancel the visa.

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

    DECISION

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

36. The Tribunal has no jurisdiction with respect to the second named applicant.

    Alan McMurran
    Member