Singh (Migration)

[2019] AATA 6043

Singh (Migration) [2019] AATA 6043 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Umarjit Singh
Mrs Harmandeep Kaur
Miss Tanvir Kaur Shoker
Master Mehtaab Singh Shoker

CASE NUMBER:  1914042

HOME AFFAIRS REFERENCE(S):           BCC2019/756698

MEMBER:Antonio Dronjic

DATE:19 December 2019

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 19 December 2019 at 10:57am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – business ceased trading – purpose of visa no longer exist – 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 30 May 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 first named applicant (the applicant) breached condition 8107(3)(b) of Schedule 8 to the Migration Regulations 1994 (the Regulations), 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 secondary 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 the second named applicants’ 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 the secondary applicants.

   Background to the cancellation of the applicant’s visa

4. The decision record of 30 May 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 16 November 2015, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 16 November 2019;

   ·The standard business sponsor who most recently nominated the applicant to work as a cook was Eko International Pty Ltd (the sponsor);

   ·On 31 October 2016, the sponsoring business advised the Department that the business has ceased trading and was no longer operating;

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

   ·On 2 May 2019, the applicant responded to NOICC;

   ·On 30 May 2019, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa.

5. On 19 November 2019, the Tribunal wrote to the applicants advising them that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend a hearing on 18 December 2019.

6. The applicants appeared before the Tribunal on 18 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. 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 applicants.

8. 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.

9. The applicant is 38 years of age and a national of India. He is married and has two underage children (ages three and one). His two sisters are Australian citizens. His parents and one sister live in India. Prior to arriving in Australia as the holder of a Student visa in May 2009, he completed the equivalent of year 12 in India and worked at his father’s farm. He claims that the property in India is all held under his father’s name.

10. The applicant’s wife has a brother in Manila. Her parents also live in India. Prior to arriving in Australia, the applicant’s wife completed the equivalent of year 12 and two years of nursing course. She worked at a hospital in India a nurse for four years.

11. After arriving in Australia, the applicant enrolled in a Certificate IV in commercial cookery course which he completed in 2013. The applicant was granted a Subclass 457 visa on 16 November 2015, based on the sponsorship and nomination made by Eko International Pty Ltd. This entity operated a restaurant in Melbourne. The applicant confirmed in his evidence that he received a copy of a Subclass 457 visa grant letter from the Department which contained an explanation of the conditions imposed on his visa and that he read and understood the letter.

12. The Tribunal asked the applicant when he commenced a full time employment at the sponsoring business. The applicant gave evidence that in 2013 he worked at the sponsoring business as a casual cook but never commenced a full-time employment. After his visa was granted in November 2015, the owner of the restaurant (Mr Gurpreet Singh) told the applicant of his intentions to renovate the restaurant. In January 2016, the applicant went to the restaurant only to find out that the business was sold to a new owner. The applicant contacted Mr Gurpreet Singh and was told that the sponsoring business will open a new restaurant within the next six months. 

13. The Tribunal asked the applicant if he informed the Department that he did not commence his employment at the sponsoring business and he answered that he did not.

14. The applicant gave evidence that in April 2016 he was offered employment at a restaurant located in town of Millicent, South Australia. The applicant claims that this restaurant lodged the nomination application with the Department nominating him for the position of a cook. He was told by his lawyer that the Department did not make any decision on this nomination application because this restaurant from Millicent was banned from sponsoring overseas workers for a period of three years. The applicant confirmed in his evidence that he did not commence working at Millicent restaurant.

15. The applicant gave evidence that in March 2017 he applied for a permanent residency under the regionally sponsored migration scheme (RSMS) but was not successful with this application.

16. The applicant stated in his evidence that, soon after his Subclass 457 visa was cancelled, in February 2017, he was granted a bridging visa ‘E’ which did not have no work condition (8101) attached. From that time he is and has been working as an Uber driver. He did not work in Australia as a cook since the visa cancellation took place. The applicant’s wife is employed on a full-time basis as a factory worker in Melbourne.

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 the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

18. The Tribunal invited the applicant to bring to its attention any matter he considers relevant to the Tribunal’s consideration as to whether the visa should be cancelled.

19. The applicant stated that ‘legally’ he could not obtain new sponsorship. The Tribunal explained to the applicant that it is up to prospective employer to apply for approval of business sponsorship to the Department and nominate a particular person to a position within the business.

20. The applicant stated that his future and the future of his family have been spoiled and that he should not be blamed because the sponsoring business ceased trading.

21. 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

22. 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?

23. 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.

24. As noted above, condition 8107 was attached to the applicant’s visa, which was granted on 16 November 2015, and which, but for its cancellation, was valid to 16 November 2019.

25. Based on the applicant’s oral evidence, the Tribunal finds that the applicant ceased employment at the sponsoring business in January 2016 when he learned that the business was sold to a new owner. 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).

26. 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

27. 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’.

28. 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].

29. 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

30. 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.

31. 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 in January 2016 because the business was sold to a different owner and ultimately ceased trading in October 2016.

32. The applicant decided to remain in Australia. The Tribunal accepts that the applicant attempted to find new employment as a cook but was not successful. The Tribunal finds that the applicant’s Subclass 457 visa would, but for the cancellation, have ceased on 16 November 2019 in any case. 

33. 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 in January 2016.  The Tribunal gives significant weight to this consideration.

    The reason for and extent of the breach

34. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in January 2016. 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’.

35. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor to successfully nominate 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 almost three years since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

36. The applicant lost his job when the sponsoring business was sold to different 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.

37. The applicant ceased employment at the sponsoring business in January 2016. Despite receiving notification from the sponsoring business on 31 October 2016 that the business ceased trading and is no longer operating, the Department did not proceed with the visa cancellation until 30 May 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

38. There is no evidence before the Tribunal that the applicant previously breached visa conditions or that he was not co-operative with the Department.

    Degree of hardship that may be caused to the applicant

39. At the hearing, the applicant claimed that the visa cancellation would cause hardship to him and his family and that his future and the future of his family have been spoiled. He stated that it was not his fault that the sponsoring business ceased trading.

40. The Tribunal accepts that the applicant has been living in Australia since May 2009 and has completed a Certificate IV in commercial cookery. It accepts that the applicant would like to stay in Australia with his wife and children. The Tribunal further accepts that the applicant and his family may suffer some hardship if required to return to India.

41. The Tribunal is satisfied that the applicant would be able to re-establish himself in India, given his family composition, education and work experience obtained in Australia and India.

42. 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. 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

43. 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.

44. 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 of the Regulations 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.

45. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as he breached the 8107 condition imposed on his visa. Relevantly, public interest criterion (PIC) 4013(2)(b) of Schedule 4 to the Regulations prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is 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 would be consequential cancellations under s.140

46. Whilst the applicant’s wife’s and children’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 and children.

47. However the applicant’s wife and children were only granted a Subclass 457 visa on the basis of them being the applicant’s family members and it is not an unintended consequence of the legislation that if the applicant's visa is cancelled then his family members’ visas are consequentially also cancelled. In this respect the consequential cancellations will not result in the separation of the applicant from his wife and children and keeps the immigration status of all family members aligned. The Tribunal therefore accords this consideration little weight.

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

1. 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).  

2. While the applicant would prefer to raise his children in Australia because of schooling, greater opportunities and lifestyle, the children are Indian nationals and will have no difficulties travelling to and living in India. It is in the best interests of the children not to be separated from their parents, and if the applicant’s visa is cancelled, children will not be separated from the applicant (their father) or mother (whose visa would also be consequentially cancelled).

3. Accordingly, 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. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol.  

   The impact on any victims of family violence

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

5. The Tribunal has taken into account all of the available evidence in this case. Having considered all the circumstances the Tribunal is not persuaded that it should exercise its discretion not to cancel the visa as it is not satisfied that any of the matters raised by the applicant before this Tribunal either individually or cumulatively, is sufficient for the Tribunal to exercise its discretion not to cancel the visa.

6. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

   DECISION

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

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

   Antonio Dronjic
   Member