Sindhu (Migration)

[2019] AATA 5501

Sindhu (Migration) [2019] AATA 5501 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vikas Sindhu

CASE NUMBER:  1902390

HOME AFFAIRS REFERENCE(S):          BCC2018/4065347

MEMBER:Antonio Dronjic

DATE:29 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 August 2019 at 11:47am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 90 days – occupation of Cook – new business owners ceased employment contract – new employer nomination approval delayed – visa expired during review process – closure of the 457 program – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 2; Schedule 8; Condition 8107; r 2.12

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Rani & Ors v MIMA (1997) 80 FCR 379
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Tien & Ors v MIMA (1998) 89 FCR 80
Vishnumolakala v Minister for Immigration [2006] FMCA 1209         

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 January 2019 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 applicant breached condition 8107(3)(b), as the period during which the applicant ceased employment exceeded 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 to the cancellation of the applicant’s visa

4. The decision record of 31 January 2019 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 20 June 2015, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 20 June 2019;

   ·The standard business sponsor who most recently nominated the applicant to work as a cook was Jamil Karadsheh (the sponsor);

   ·On 18 June 2018, the applicant ceased his employment with the sponsoring business;

   ·A notice of intention to consider cancellation (NOICC) was issued on 16 January 2019;

   ·On 31 January 2019, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 1 March 2019 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 11 June 2019, 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 August 2019.

6. On 26 August 2019, the applicant’s representative submitted:

   ·A copy of the applicant’s response to the NOICC;

   ·A copy of the notification of cessation of employment letter sent by the sponsor to the Department;

   ·A copy of the employment agreement between the applicant and HD MPonds Pty Ltd dated 10 July 2018;

   ·A copy of the applicant’s skills assessment letter dated 13 May 2019 as evidence that he has satisfactorily completed skills assessment for the occupation of a chef;

   ·Submissions outlining the applicant’s immigration and work history (Tribunal folios 29-31); and

   ·A copy of the sponsorship approval letter for HD MPonds Pty Ltd dated 14 December 2018.

7. The applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

8. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. 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 a condition of his visa. Specifically, condition 8107, to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicant.

9. The Tribunal further explained to the applicant that, if satisfied that the ground 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.

10. The applicant is 32 years of age and a national of India. He is married and has a child who is eight months old. His father and brother live in India and neither he nor his wife has any relatives in Australia. Prior to arriving in Australia as the holder of a Student visa in July 2008, he completed a Bachelor of Commerce degree in India. He stated that he did not work in India. He married in 2005. His wife has also completed a Bachelor of Commerce degree and worked as a cashier at a bank in India.

11. From July 2008 to late 2015, the applicant completed several hospitality related courses in Australia, including a Certificate IV in Commercial Cookery and Diploma in Hospitality. He also worked on a casual basis as a cook during his studies. His wife is currently employed as a bookkeeper.

12. He was granted a Subclass 457 visa on 20 June 2015, based on the sponsorship and nomination made by Jamil Karadsheh who operated the restaurant Rustica Cucina at Beaumaris, Victoria (the restaurant). He commenced full-time employment as a cook at the restaurant in June 2015. He gave evidence that he was hoping to obtain permanent residency in Australia after working for the same employer for more than three years. Instead, on 18 June 2018, he was informed that the restaurant was sold to new owners who were not willing to keep the applicant employed at their business.

13. He managed to find new employment and in July 2018 he commenced working as a cook at Hunky Dory restaurant operated by HD MPonds Pty Ltd. He remains employed by this business as at the day of the Tribunal’s hearing. This business applied for a sponsorship approval in August 2018, but it was not until 14 December 2018 that the application was approved by the Department.

14. The Tribunal enquired as to why the sponsoring business did not lodge a Subclass 482 nomination application with the Department, considering that the business was approved as a business sponsor in December 2018. The applicant gave evidence that the new employer did not lodge a nomination application with the Department because the business was waiting for the outcome of the current review application.

15. The Tribunal explained that it is reviewing a decision made by the Department to cancel his Subclass 457 visa, which would, but for the cancellation, have ceased on 20 June 2019 in any case.  Accordingly, the outcome of any potential nomination application for a different visa subclass would not make it possible to reinstate his Subclass 457 visa. The Tribunal explained to the applicant that as of 18 March 2018 it is no longer possible to apply for a Subclass 457 visa as it has been abolished and replaced with a new temporary working visa.

16. The Tribunal noted that the applicant ceased employment at the sponsoring business on 18 June 2018 and that the Department did not proceed with the cancellation of his visa until 31 January 2019. The Tribunal observed that the applicant had more than 12 months to find an alternate employer that was willing to sponsor and nominate him for the position at its business.

17. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached the condition 8107 that was imposed on his Subclass 457 visa as the period during which he ceased employment exceeded 90 consecutive days and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

18. The Tribunal indicated that it will take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application. It asked the applicant if there is anything else that he wants to raise with the Tribunal.

19. The applicant stated that he has been living in Australia for 11 years, that he likes living in Australia, that he wants a better life for his family and his young child, that he will suffer hardship if he has to return to India as he will have to start all over again and that his family in India will suffer financial hardship as he will no longer be in a position to financially support them.

20. 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

21. 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?

22. 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. The condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 90 consecutive days.

23. As noted above, condition 8107 was attached to the applicant’s visa, which was granted on 20 June 2015, and which, but for its cancellation, was valid to 20 June 2019.

24. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 18 June 2018. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly, the Tribunal finds that the review applicant did not comply with condition 8107(3)(b).

25. 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

26. There are no matters specified in the Act or Migration Regulations 1994 (the 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’.

27. 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) (1979) 2 ALD 634.

    [2]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala 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].

28. 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

29. 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.

30. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a cook on a temporary basis. The applicant ceased his employment on 18 June 2018 because the business operated by the sponsor was sold to the new owners.

31. The applicant decided to remain in Australia. The Tribunal accepts that the applicant managed to find new employment in July 2018. At that time, the applicant’s new employer was not an approved sponsor. Despite lodging the sponsorship application in August 2018, it was not until December 2018 that the Department approved the application.

32. Based on the applicant’s evidence, the Tribunal finds that the prospective employer did not lodge a Subclass 482 nomination application with the Department as at the time of the Tribunal hearing, despite being approved as a sponsor on 14 December 2018.

33. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.

34. The Tribunal further finds that the applicant’s Subclass 457 visa would, but for the cancellation, have ceased on 20 June 2019 in any case.  It follows that the outcome of any potential nomination application for a different visa subclass would not make it possible to reinstate his Subclass 457 visa.

35. 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 is 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 on 18 June 2018.  The Tribunal gives significant weight to this consideration.

    The reason for and extent of the breach

36. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in June 2018. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that nominated him for the position of a cook within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’.

37. In July 2018, the applicant commenced employment as a cook at Hunky Dory restaurant operated by HD MPonds Pty Ltd. At that time, the business was not an approved sponsor. He has continued employment at Hunky Dory restaurant to the present day, despite never being nominated by the business that became an approved sponsor in December 2018.

38. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor that successfully nominated him to work as a cook. The Tribunal finds that the applicant’s failure to commence employment with a new business that successfully nominated the applicant to work as a cook after more than 14 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

39. The applicant lost his job when the business was sold to the new owners. The Tribunal accepts that the circumstances in which the ground for cancellation arose 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.

40. The applicant ceased employment at the sponsoring business in June 2018. The Department did not proceed with the visa cancellation until 31 January 2019. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with an alternative business sponsor who successfully nominated the applicant for the position within their business.

    Past and present conduct of the visa holder towards the Department

41. The Tribunal accepts the applicant’s claims that he has been co-operative with the Department and previously complied with visa conditions.

    Degree of hardship that may be caused to the applicant

42. The applicant submitted that the visa cancellation will cause him hardship as he will not be able to continue working for his current employer and it will restrict his future visa options. He gave evidence that he will suffer hardship because he will have to depart Australia in order to apply for a Subclass 482 visa.

43. He stated that he has been living in Australia for 11 years and that he wants a better life for his family and his young child. He claims that he will suffer hardship if he has to return to India as he will have to start all over again. He claims that his family in India will suffer financial hardship as he will no longer be in a position to financially support them.

44. The Tribunal accepts that the applicant has been living in Australia since July 2008 and has completed various educational courses. It accepts that the applicant would like to stay in Australia with his wife and child. The Tribunal also accepts that his family in India may suffer some financial hardship if the applicant is no longer able to provide financial support to them.

45. The Tribunal does not accept the applicant’s claim that, if required to return to India, he would have to start all over again. The Tribunal has taken into consideration the applicant’s evidence that his father and brother live in India and that neither the applicant nor his wife has any relatives in Australia. The Tribunal considered the applicant’s evidence that both he and his wife completed Bachelor of Commerce degrees in India and that his wife gained work experience in India. The Tribunal is satisfied that the applicant would be able to re-establish himself in India, given his education and work experience obtained in Australia and India.

1. The Tribunal accepts that the applicant may be required to depart Australia in order to apply for a Subclass 482 visa. The Tribunal is satisfied that the applicant will not be prevented by Public Interest Criterion (PIC) 4013 from applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has an approved business nomination in relation to the applicant.

2. Balanced against any potential hardship to the applicant 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.

3. 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.

   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

4. 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.

5. The Tribunal is mindful that s.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 s.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

6. Whilst the applicant’s wife’s visa was 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. The Tribunal notes that the applicant’s wife and child were not included in the review application.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

7. 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).  

8. There is no evidence before the Tribunal that would suggest 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

9. There is no evidence before the Tribunal regarding this matter.

   Other relevant matters

10. Having no evidence to indicate otherwise, the Tribunal accepts the applicant’s claims that he is a person of good character and has obtained a positive skills assessment outcome for the occupation of a chef.

11. 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

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

    Antonio Dronjic
    Member