Sidhu (Migration)

[2018] AATA 5721

Sidhu (Migration) [2018] AATA 5721 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kirandeep Singh Sidhu

CASE NUMBER:  1804115

HOME AFFAIRS REFERENCE(S):           BCC2017/4424233

MEMBER:Cathrine Burnett-Wake

DATE:7 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 07 December 2018 at 11:12am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) –ceased employment with sponsor – exceeded 90 consecutive days  – Customer Service Manager ANZSCO 149212 – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 359A, 359C, 360(3), 363A
Migration Regulations 1994, Schedule 8, Condition 8107

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 February 2018 made by a delegate of the Minister for Home Affairs 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 first named applicant (the applicant) ceased employment with his sponsor and therefore breached condition 8107(3)(b). 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. On 23 October 2018 the Tribunal wrote to the applicant pursuant to s.359A and s.359(2) of the Act, inviting comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the applicant’s sponsorship by Rockiron Pty Ltd and the grant of the Subclass 457 visa on 5 August 2014. The applicant was informed that his Subclass 457 visa was subject to condition 8107 – a work restriction which required in part that he must not cease to be employed by his approved sponsor and that if he ceased employment the period must not exceed 90 consecutive days. The applicant was informed that the Tribunal had information indicating he ceased being employed by his sponsor on or before February 2016 and he had therefore not worked for her sponsor for more than 90 consecutive days as at the date the delegate cancelled his visa. The Tribunal informed the applicant that there was no information to indicate that he had recommenced employment with his sponsor and recent checks indicated that there were no new relevant business nominations approved in respect of the applicant since his visa was cancelled in February 2018. The Tribunal explained the relevance of this information and the consequences. The applicant was also invited to provide further information in relation to factors that would be taken into account if the Tribunal found that there was a ground to cancel his Subclass 457 visa.

4. The invitation was sent to the last email address provided in connection with the review and the applicant was advised that, if the comments and/or information were not provided in writing by 7 November 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and/or further information and he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicant has not provided a response or comments, or provided information, within the prescribed period and no extension has been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. As a result, a hearing that was set down for 14 December 2018 for the applicant to appear before the Tribunal to present evidence and arguments has been cancelled.

6. The Tribunal is satisfied that the invitation to comment and provide information was correctly sent to the last email address provided in relation to the review application. The Tribunal also notes that the email enclosing the invitations has not been returned to sender as undeliverable. The Tribunal is satisfied that the applicant was properly informed that a nonresponse may result in the Tribunal proceeding to a decision on the information before it. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain comments or further information.

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

8. 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?

9. 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 attached to the applicant’s visa. Of relevance in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.

10. The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 5 August 2014 on the basis of a nomination by Rockiron Pty Ltd (the sponsor) for the position of Customer Service Manager ANZSCO 149212.

11. On 23 January 2018, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) by the Department, stating that it appears that the applicant had ceased employment with the sponsor effective February 2016, which indicates that he is in breach of paragraph 8107(3)(b) of condition 8107 attached to the visa, because he appears to have ceased employment with the sponsor for a period exceeding 90 consecutive days.

12. On 30 January 2018, the applicant wrote to the Department in response to the NOICC. The applicant outlined in his response that he had resigned from his position with Rockiron Pty Ltd on 9 February 2016 as his employer had not been paying him on time, and because he had not been paid for the period 7 October 2015 through to 8 February 2016. A copy of the response was inserted into the delegate’s decision record.

13. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment and has not done so since the cessation of his employment in February 2016.  On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b). 

14. 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

15. 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’.

16. The Tribunal has taken into account all of the evidence before it. The only document the provided by the applicant in support of his review, was a copy of the Department’s decision. The Tribunal notes that the applicant was invited in October 2018 to provide information in relation to the factors addressed below. However he did not respond to that invitation.

17. As detailed above, the applicant claimed, in response to the NOICCs issued by the Department that he left employment because his employer had not paid wages on time and had because had had not been paid for a several month period. The applicant claimed he endured financial hardship because of the late and non-payments resulting in ‘severe depression and mental agony’. Further, the applicant claims that when he attempted to raise the grievances with his employer, that no action was taken to address them and that the employer harassed him a lot during this time.

18. The purpose of the 457 visa is for an applicant to work on a temporary basis (usually for up to 4 years) for an approved sponsor in an approved occupation. Since ceasing employment with Rockiron Pty Ltd in February 2016, there is no evidence before the Tribunal to demonstrate that he has been able to secure another nomination.  The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list and that if an applicant had been unable to secure an approved nomination then this meant the applicant was not able to fulfil the purpose of the 457 visa and this weighs strongly in favour of cancelling the visa.

19. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted his most recent 457 visa was to work in the occupation of Customer Service Manager for Rockiron Pty Ltd, that purpose ended in February 2016 (based on his letter to the Department in response to the NOICC, and as outlined in the Department’s decision record) when the applicant ceased working for that company. The information on file indicates, approximately 22-months has passed and no evidence has been provided to demonstrate that he has been able to secure another approved nomination with another employer under the 457 visa programme.  Additionally, according to the checks the Tribunal undertook, and as referred to in the s359A letter sent to the applicant, there were no new relevant business nominations approved in respect of the applicant since he left employment and since his visa was cancelled in February 2018.

20. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for his approved sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa. 

21. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(b) the applicant has complied with visa conditions.

22. The Tribunal has also considered the circumstances in which the ground for cancellation arose. The Tribunal accepts that the applicant ceased employment with his approved sponsor due to late and non-payment of wages. However, in this case, the ground for cancellation arose 90 days consecutive after the applicant ceased employment with the sponsor as he was unable to secure another nomination within the 90 day period. The Tribunal notes there is no corroborative evidence that since he left employment that he has secured sponsorship by a standard business sponsor who has been able to have a nomination application approved on his behalf.  The Tribunal finds that these circumstances weigh in favour of cancelling the applicant’s visa.

23. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled.  However, corroborative evidence pertaining to claimed financial hardship has not been provided, nor has any information been submitted to the Tribunal pertaining to the applicant’s current mental health.

24. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if he does not continue to hold visas to remain lawfully in Australia or refuse to depart voluntarily. The applicant will not have to immediately depart Australia if the visa is cancelled and can apply for further Bridging E visas. If the visa is cancelled the applicant will be affected by s.48 of the Act and will have limited options for applying for substantive visas onshore without the intervention of the Minister.

25. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation. 

26. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant on the basis of the evidence before it has generally complied with visa conditions and has been cooperative with the Department. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor 22 months ago. The applicant can, should he wish to do so, make an application offshore for a Subclass 482 visa should a nomination in relation to him be approved in future.

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

    DECISION

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

    Cathrine Burnett-Wake
    Member