Singh (Migration)

[2019] AATA 3626

Singh (Migration) [2019] AATA 3626 (21 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jagmeet Singh

CASE NUMBER:  1906398

HOME AFFAIRS REFERENCE(S):           BCC2018/5454171

MEMBER:Jennifer Cripps Watts

DATE:21 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 August 2019 at 9:13am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – position not genuine – sponsorship cancelled – business no longer operating – sponsor sanctioned – applicant unsuccessful in finding sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 rr 2.43, 457.223, Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 March 2019 made by a delegate of the Minister for Home Affairs (the delegate) 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)(g) on the basis that a prescribed ground for cancelling the visa applied, namely, that the position associated with the nominated occupation was not genuine: r.2.43(1)(kb)(iii). 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 18 March 2019, the applicant applied for review of the decision to cancel his visa and provided the Tribunal with a copy of the delegate’s decision.  On 6 June 2019, the Tribunal invited the applicant to attend a scheduled hearing on 16 July 2019.  On 2 July 2019, a letter was sent to the applicant, under s.359(2) of the Act, requesting that he provide certain documentary information by 16 July 2019.  By email dated 8 July 2019, the applicant requested more time to provide documents and asked that his hearing date be extended.  The Tribunal considered the request and, on the basis that the applicant still had another week before his hearing, did not grant the request to postpone the hearing.  On 12 July 2019, written submissions were received from the applicant’s migration agent, attaching additional documents.  The applicant was given an opportunity to provide additional documents after the hearing.

4. The applicant appeared before the Tribunal on 16 July 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. 

5. The applicant was represented in relation to the review by his registered migration agent, Mr Muhammad Iqbal Chaudhry.

6. 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

7. 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)(g). 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.

8. The Subclass 457 visa that is the subject of this review was granted to the applicant on 1 November 2016, for four years, on the basis of an approved nomination by R & A Restaurants Pty Ltd (the sponsor) to work in the nominated occupation of Cook (ANZSCO 351411).  In the online visa application form, dated 12 September 2016, the applicant indicated that the base annual salary would be $54,900.

9. The 457 programme was repealed in March 2018.  Before that and for any ongoing or already approved nominations, among other things it was a requirement that a company nominating a person for a Subclass 457 visa be an approved standard business sponsor.  When the sponsor’s standard business sponsorship was cancelled on 16 November 2018, they ceased to have an approved nomination as a consequence of the cancellation.  The applicant was informed of this in writing by Australian Border Force (ABF) on 19 November 2018, and also that because he no longer had an approved nomination in place relating to his 457 visa, his visa may be cancelled.

10. On 1 February 2019, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) by the Department.  He responded to the NOICC and the information provided by the applicant to the Department in response, on 26 February 2018, has been considered.

11. Prior to the Tribunal hearing, on the evidence that had been provided by the applicant to the Department, and information contained in the delegate’s decision, it was not clear to the Tribunal when the applicant had worked for the sponsor and in what location at the relevant times.  Additional information from the applicant was requested.  In the Tribunal’s letter under s.359(2) of the Act, sent to the applicant sent on 2 July 2019, it was requested that the applicant provide the following:

    a.PAYG statements for the financial years ending 2016, 2017 and 2018 from all employers you worked for during those years;

    b.Australian Tax Office Assessment notices for the financial years ending 2016, 2017 and 2018;

    c.A signed copy of the contract of employment between the applicant and the sponsor, R & A Restaurants;

    d.Payslips that were issued to the applicant by R & A Restaurants Pty Ltd during the period of his employment with them; and

    e.Information demonstrating whether any nominations have been applied for, refused or granted relating to his Subclass 457 visa.

12. A response was due by 16 July 2019, the day of the hearing.  On 12 July 2019, the applicant provided the following documents:

    a.Written submissions dated 9 July 2019 from Mr Chaudhry

    b.The applicant’s Australian academic qualifications

    c.Three electronic lodgement declaration forms, all signed by the applicant on 23 September 2018, tax file number xxxxx5519 in which he declares:

    i.2018 taxable income, $14,784

    ii.2017 taxable income, $41,158

    iii.2016 taxable income, $  8,640

    d.Tikka N Talk Indian Restaurant employment contract dated 15 February 2019, signed by Mr Vicky Passi, Director

13. The sponsor’s standard business sponsorship was cancelled after adverse findings were made by the Department on 16 November 2018 on the basis of information and evidence gathered during sponsor monitoring by ABF.  The sponsor was sanctioned for 60 months, from 2018 to 2023.  While the applicant claims that he worked for the sponsor up to around the end of 2018, in the delegate’s decision it is noted that evidence ‘gathered during the sponsor monitoring audit to the Sponsor … indicates that the sponsor is no longer operating a business, since at least 6 June 2018’.

14. The applicant said at the Tribunal hearing that from when he commenced work with the sponsor he was paid by them for a time into a bank account and then he was paid in cash.  He said that in mid-2017 he was moved by the sponsor from the location for which his visa was granted, Wellington in New South Wales, to another of the sponsor’s restaurants in Brighton-Le-Sands in Sydney, where he continued to work in the nominated occupation for a salary.  The applicant said that when he was moved from Wellington to Sydney he was told by the sponsor that they would amend the details to ensure compliance with the nomination and visa conditions, but he said he later became aware, when he received a letter from ABF in November 2018, that the sponsor did not do this.  There has been no verifiable evidence provided to the Tribunal that the applicant was paid the salary by the sponsor under the terms of the employment contract between them to which the nomination related, relevantly, beyond 6 June 2018.  On the basis of the ABF findings noted in the delegate’s decision, the Tribunal considers that the applicant has not worked for the sponsor beyond 6 June 2018. 

    Does the ground for cancellation exist?

15. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(kb)(iii) is relevant: ‘the position associated with the nominated occupation is not genuine’.

16. On 16 November 2018, a decision was made by ABF to cancel the sponsorship (relating to the applicant’s Subclass 457 visa that is the subject of this review) and a 60 month sanction was imposed, in force up to 16 November 2023.  This is not in dispute.

17. It is acknowledged that the applicant submitted that he had a genuine intention to work in the position for which he was granted the visa in 2016 and that he did commence working for the sponsor in the nominated occupation at their restaurant in Wellington, New South Wales.  The question for the Tribunal is not whether he had a genuine intention before the standard business sponsorship was cancelled, but whether he had, or could have had, a genuine intention after it was cancelled.   

18. The circumstances in this case, on the evidence before the Tribunal, are that from 6 June 2018 the sponsor was no longer actively operating the business, there was no longer an approved nomination relating to the 457 visa from 16 November 2018 and the position (of the applicant relating to his 457 visa) therefore no longer existed.  Practically speaking, in these circumstances, it is difficult to see how an applicant could have a genuine intention to work in a position for a company no longer actively operating a business, that has had its standard business sponsorship cancelled and consequently no longer has an approved nomination.

19. For these reasons, the Tribunal finds that the position associated with the nominated occupation ceased to exist on 16 November 2018 and is not genuine, and the applicant no longer satisfies r.457.223(4)(d)(ii) of Schedule 2 to the Regulations. 

20. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

21. 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’.

22. For reasons already given, the Tribunal’s view is that the sponsor was not operating a business beyond 6 June 2018 and that the applicant ceased work for the sponsor no later than 6 June 2018.  Sponsor monitoring was carried out by ABF and, on the basis of the information obtained, a decision was made by ABF to cancel the sponsor’s standard business sponsorship on 16 November 2018.  This applicant, who was informed of this by ABF and that the nomination had ceased, had 90 days to find another sponsor under condition 8107 attached to his visa.

23. The applicant submits that he put a lot of hard work into obtaining a new nomination.  He says he was almost successful in obtaining a nomination with S N Bhagwati Catering Services Pty Ltd, but ‘the business closed down abruptly’.  He then responded to an ad on Gumtree placed by Tikka N Talk, a restaurant in Young in regional New South Wales, that was looking for a cook.  He says he arranged for them to nominate him and provided a contract of employment with them dated 15 February 2019.  Documentary and oral evidence has been provided by the applicant that satisfies the Tribunal as to these matters. 

24. At the hearing the applicant said he had been told by his former migration agent, by the owner of Tikka N Talk and by an accountant, that Tikka N Talk (which is a company registered with ASIC as VikkyPassi Pty Ltd, ABN 42 626 486 824) had lodged a standard business sponsor and nomination application for him for a Subclass 482 visa.  The applicant said at the hearing that he was not able to provide documents verifying this and the Tribunal checked the Department system during the hearing.  As a result of the search done during the hearing, the applicant was told that it did not appear that VikkyPassi Pty Ltd (trading as Tikka N Talk) had lodged either a sponsorship or nomination application relating to the applicant.  It was explained to the applicant that the Tribunal did not consider his credibility to be in question as to his claim that Tikka N Talk had lodged a nomination application.  However, the information itself was put to him as adverse information, observing the Tribunal’s obligations under s.359AA of the Act.  The Tribunal then offered the applicant a short adjournment to step outside the hearing room and discuss the matter privately with his migration agent to decide whether he wished to respond at the hearing or have more time to respond after the hearing.  They returned to the room and the Tribunal offered the applicant and Mr Chaudhry, who is also a solicitor, the option of Mr Chaudhry responding on the applicant’s behalf, which he did. 

25. Mr Chaudhry submitted at the hearing, responding to the adverse information on behalf of the applicant that:

    a.On the basis of the information they believe he was misled, in that the applicant was given misleading advice;

    b.The applicant relied on his former migration agent to lodge a new application and now he has lost the chance to make any application:

    c.The Tribunal is asked to consider the applicant’s situation and give him a chance to look for a sponsor and file any other application to assist him;

    d.The applicant is a hard working person trying his best to do the right thing in Australia, according to the rules and regulations of the visa.

    e.The circumstances relating to the applicant relying on the misleading advice and now finding himself in an unfavourable position relating to his visa situation were beyond his control.

26. The Tribunal took this response to the adverse information on board and gave an undertaking not to make a decision in his matter before 19 August 2019, which effectively gave the applicant another month to provide any additional information that he wished to be considered.  None has been provided.

    Background

27. The applicant is a citizen of India who arrived in Australia in 2014 holding a Subclass 573 student visa.  He has provided copies of documents to the Tribunal indicating he completed the following Australian study:

    a.Certificate IV in Commercial Cookery, April 2016

    b.Diploma of Business, November 2016

28. On 1 November 2016, he was granted a Subclass 457 visa for four years, in the nominated occupation of Cook (ANZSCO 351411), nominated by the sponsor, at the Indo-French Restaurant in Wellington, New South Wales.  He ceased working for the sponsor, while still holding the Subclass 457 visa, no later than 6 June 2018, when the sponsor was found by ABF to have ceased operating its business.  The sponsor had its sponsorship cancelled and a 60 month sanction was imposed, to November 2023. 

29. On 1 February 2019, the applicant was given a Notification of Intention to Consider Cancellation (NOICC) of his related Subclass 457 visa and invited to respond.  He responded on 26 February 2019.  He did not appear to dispute the ground for cancellation, but made claims against the discretionary matters that must be, and have been, considered.

30. Mr Chaudhry provided written submissions to the Tribunal prior, dated 9 July 2019, and the Tribunal has given them careful consideration, together with the applicant’s oral evidence and other relevant matters.

    Purpose of the visa holder’s travel and stay in Australia

31. The purpose of the applicant’s stay in Australia was to work for a sponsor in the nominated occupation while he held a Subclass 457 visa.  He was nominated by the sponsor up until the time their sponsorship was cancelled on 16 November 2018.

32. On the evidence, the Tribunal’s view, as stated earlier, is that the applicant ceased working for the sponsor no later than 6 June 2018.  The nomination relating to the applicant’s Subclass 457 visa ceased when the sponsor’s standard business sponsorship was cancelled on 16 November 2019.

33. While the Tribunal acknowledges, and accepts, that the applicant tried to obtain another nomination and appears to have been misled by his sponsor, former migration agent and the owner of the restaurant (Tikka N Talk) that has provided him with an employment contract (dated 15 February 2019), he nonetheless has not managed to obtain a new nomination since the approved nomination ceased.

34. From 16 November 2018, the applicant ceased residing in Australia for the purpose for which the visa was granted.

    Degree of financial, psychological, emotional or other hardship that may be caused

35. The applicant submitted in writing and gave oral evidence that cancellation of his visa will cause him ‘enormous hardship, physically, economically, socially and emotionally’ and that it will take a significant toll on him.  He said he feels he is ‘in limbo’ and that there may be restrictions imposed on further visa applications.  

36. It is accepted by the Tribunal that these are legitimate matters for concern.  However, the Subclass 457 visa the applicant held was a temporary visa and there was always a possibility, if not a likelihood, that he would have to depart Australia when it ceased.

37. While the Tribunal accepts that the applicant claims that he will suffer some hardship, but does accept that the hardship will be ‘enormous’ in the context of his residing in Australia on a temporary, not a permanent, visa for about five years and that he will likely return to his home country if the visa remains cancelled where he speaks the language and is a citizen who has family there. 

    Extent of compliance with visa conditions

38. From 16 November 2018, the position with the sponsor no longer existed because the sponsor ceased to have an approved nomination relating to the applicant’s 457 visa.  Condition 8107 provided the applicant with 90 days to obtain an approved nomination.  The applicant claims that initially he was unaware of the 90 day time period to find a new sponsor.  It is a condition of his visa and the Tribunal’s view is that it is reasonable to expect the applicant to have been aware of his own visa conditions because it is a visa applicant’s responsibility to know what conditions attach to their visa to be sure they comply with the conditions.   In addition, it is reasonable to think the applicant would be aware of the condition that, when holding a Subclass 457 visa, he must have an approved sponsor and that he could not reside in Australia indefinitely holding a 457 visa without a sponsor.

39. Other than the non-compliance with condition 8107, there is no evidence before the Tribunal that the applicant has otherwise been non-compliant with his visa conditions. 

    Circumstances in which the ground of cancellation arose

40. The sponsor had their standard business sponsorship cancelled on 16 November 2018 resulting in their approved nomination ceasing, relating to the applicant’s Subclass 457 visa.  The Tribunal is satisfied that this was beyond the applicant’s control. 

    Past and present behaviour of the visa holder towards the Department

41. There is no information before the Tribunal that the applicant has been uncommunicative or unco-operative with the Department.

    Consequential cancellations under s.140

42. There are no dependent applicants who hold a 457 visa because they are members of the applicant’s family unit and it follows that there will be no consequential cancellations if the applicant’s visa is cancelled. 

    Mandatory legal consequences, including unlawfulness and detention

1. If the visa is cancelled, the applicant will become an unlawful non-citizen and, if he does not depart voluntarily, he may be detained under s.189.  Under s.48 of the Act, he would be unable to lodge another visa application, with some limited exceptions. A three year re-entry ban will apply if the visa is cancelled.  If the applicant applies for a new temporary visa that he is entitled to apply for, he can ask the Department to set aside the re-entry ban, if there are compassionate or compelling circumstances to put it aside and grant the visa.

   International obligations, including refoulement

2. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

3. 'Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103].  It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

4. The applicant has not made any claim or provided any evidence indicating that he cannot return to his home country, India, because he would be subject to a risk of harm.  The Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.

   Any other relevant matters

5. In response to the adverse information relating to the applicant’s status regarding a pending nomination approval, he believes he was misled and given misleading advice.  He says he relied on his former migration agent to lodge an application and has now lost the chance to make an application and, on that basis, requested that the Tribunal give him a chance to look for a sponsor and file another application.  He said he is a hard working person who has been trying to do the right thing in Australia. 

6. As the applicant had asked for extra time to provide documents prior to the hearing, and Mr Chaudhry had also asked for more time for the applicant to find a sponsor when responding the adverse information put at the hearing, the Tribunal wrote to the applicant the day after the hearing and informed him as a matter of fairness an undertaking was to make a decision no earlier than 16 August 2019, during which time he could provide additional documentary evidence (giving him a further month).  No additional evidence was provided.

7. While it is accepted that the applicant seems to have relied on some bad advice and misleading information, it is nonetheless now around nine months since he ceased working for the sponsor.  Given that the proposed new sponsor, Tikka N Talk, does not have a standard business sponsor or nomination approval or application pending with the Department, the contract of employment entered into between Tikka N Talk and the applicant and dated 15 February 2019 is given limited weight in the circumstances.

8. Through Mr Chaudhry, the applicant has stressed that the cancellation of his visa, as a consequence of the cancellation of the sponsor’s standard business sponsorship, was beyond the applicant’s control.  He asks to be given a chance to look for a sponsor by finding in favour of him when considering discretionary matters.   

9. Condition 8107 that attaches to the applicant’s Subclass 457 visa effectively provided him with a period of 90 consecutive days after ceasing employment with the sponsor to obtain an approved nomination.  From the date the approved nomination relating to the applicant’s 457 visa ceased, on 16 November 2018, a period of about nine months has passed. The Tribunal considers this to be a significant period of time, given that condition 8107 stipulates 90 days.  It is accepted by the Tribunal that the applicant has made attempts to find a sponsor to lodge a nomination for him, however he has been unsuccessful.  It is acknowledged that the applicant appears to have been misled by his former migration agent. It is acknowledged that the applicant has submitted that 90 days is an unreasonably short period of time to find a new sponsor.  Even if the Tribunal was to agree, nine months is not considered by the Tribunal to be an ‘unreasonably short period of time’ to obtain a new nomination, including an additional month given to the applicant by the Tribunal after his hearing. 

10. It is noted  by the Tribunal that, where an applicant has a new sponsor or a reasonable prospect of one being approved in the near future (but beyond the 90 day period), discretion may, and often is, exercised to balance all considerations and make a favourable decision.  The Tribunal has been mindful of this, in the circumstances of this case, when considering discretionary matters and reaching its decision.        

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

    DECISION

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

    Jennifer Cripps Watts
    Member