Singh (Migration)

Singh (Migration) [2019] AATA 4186 (15 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kirpal Singh
CASE NUMBER:  1901708
HOME AFFAIRS REFERENCE(S):           BCC2018/4134124
MEMBER:Antonio Dronjic
DATE:15 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 15 August 2019 at 2:00pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – sponsor terminated employment – established own business – no pending nomination application – implied adjournment request to lodge new nomination application – Tribunal declined indefinite adjournment of decision – purpose of visa not fulfilled – breach of no work condition on Bridging visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 363
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection (2014) 236 FCR 393
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li (2013) 239 CLR 332

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 24 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).
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 60 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.
Background to the cancellation of the applicant’s visa
The decision record of 24 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 13 December 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid for the period of four years;
·     The standard business sponsor who most recently nominated the applicant to work as a motor mechanic was Jagdeep Singh (the sponsor);
·     On 6 June 2017 the applicant ceased his employment with the sponsoring business;
·     A notice of intention to consider cancellation (NOICC) was issued on 16 January 2019;
·     On 21 January 2019, the applicant’s representative wrote to the Tribunal advising that the applicant does not intend to make submissions.
·     On 24 January 2019, the delegate proceeded to cancel the applicant’s visa.
The applicant applied to the Tribunal on 24 January 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 14 August 2019.
On 5 August 2019, the applicant submitted:
·     Submissions stating inter alia that he wants to demonstrate that he is making genuine efforts to find the new employment and that a new nomination application will be lodged with the Department within two months as ‘we are in the process of preparing the paperwork’. He outlined his education and work history stating that in November 2017, he opened his own business named Sardarji Services Pty Ltd and that ‘now my company’s owner has been changed’ and that he is now ‘in the process of applying for the nomination to work as a mechanic under my previously owned company’. He stated that the purpose is to fulfil the skill shortage in Australia by working for Sardarji Services Pty Ltd as a motor mechanic, that he always ‘complied with the 457 conditions and always worked with the sponsored employer at the same skill level’, kept the Department informed about his employment situation, stated that he breached his Subclass 457 visa condition due to mental health issues, that he married on 28 January 2017 in India and his wife came to Australia on 6 June 2017, that his marriage was not ‘a pleasant experience’ and has pushed him into depression and that he left his job soon after she arrived in Australia. He claims that it took him six months to recover, that he has always been co-operative in dealing with the Department. He stated that he understands that he breached the condition imposed on his visa but claims that the circumstances of the breach were beyond his control. Finally he asked for more time ‘so that nomination application is decided’ and then ‘circumstances leading to cancelation will be lapse and I can continue my 457 visa until expiry’.
·     Copies of his educational certificates;
·     A copy of the work reference letter dated 1 October 2017, provided by Mr Jagdeep Singh of GS Auto Electric and Air Conditioning as evidence of the applicant’s employment at this business from March 2015 to 6 June 2017;
·     Copies of the applicant’s pay slips;
·     Copies of business activity statements for Sardarji Services Pty Ltd;
·     Copy of the skills assessment outcome dated 14 December 2017, as evidence that the applicant was successful with his skills assessment application for the occupation of a motor mechanic;
·     A copy of the applicant’s superannuation documents;
·     ASIC company extract for Sardarji Services Pty Ltd;
·     A copy of a letter from Highlands Medical Centre dated 24 July 2017 as evidence that the applicant was diagnosed with situational stress in early 2017 and that by October 2017 he was ‘stress free and had no signs and symptoms’;
·     A copy of a letter from Jomar Psychological Services dated 1 August 2019 stating that no significant psychological symptoms were identified during counselling;
·     A bundle of invoices issued by Sardarji Services Pty Ltd to its customers;
·     Copies of NAB business account statements for Sardarji Services Pty Ltd;
·     Copies of purchase receipts for Sardarji Services Pty Ltd;
·     A copy of the inventory statement;
·     Copies of the applicant’s tax assessment notices from 2014 to 2018;
·     Social media business page links; and
·     A bundle of photographs depicting the applicant at work.
The applicant appeared before the Tribunal on 14 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent.
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 60 consecutive days.
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.
The applicant is 29 years of age and a national of India. He is separated from his wife and has commenced the divorce proceedings in India. He has no children. His sister, brother and father live in India and he does not have any relatives in Australia. Prior to arriving in Australia as the holder of a Student visa in May 2009, he completed the equivalent of year 12 in India. He never worked in India and was living with his parents. His father is operating a business in India.
He was first granted a Subclass 457 visa in February 2015, based on the sponsorship and nomination made by an Australian business, GS Auto Electric and Air Conditioning owned by Mr Jagdeep Singh. This visa was granted for a period of 18 months.
He confirmed that his second Subclass 457 visa was granted on 24 October 2016, based on the sponsorship and nomination made by the same employer. This time, the visa was granted for a period of four years. The applicant gave evidence that he received a visa grant letter from the Department and that he read and understood the conditions imposed on his visa.
He gave evidence that he commenced his employment at GS Auto Electric and Air Conditioning in February 2015. He ceased his employment in June 2017 as he had problems with his wife and was unable to concentrate and work in his occupation. He made several mistakes at his work place, took time off from work without permission and the business owner terminated his employment. From June 2017 to November 2017 he did not work. He attempted to find a new employer but was not successful. In November 2017 he started his own business. The business was subsequently incorporated in November 2018.
The applicant stated that he is and has been working at Sardarji Services Pty Ltd since November 2017. He is the only employee of the business. He intended to use this business to secure sponsorship and nomination but was told that he cannot sponsor himself. For that reason, he asked his friend, Mr Harpreet Singh Mann, to become the sole director and shareholder of Sardarji Services Pty Ltd, which he did in July 2019. Mr Mann did not purchase the applicant’s business. Nor is he employed by the business.
The Tribunal enquired as to whether Sardarji Services Pty Ltd lodged any sponsorship or nomination applications with the Department. The applicant stated that the business did not lodge any such applications with the Department but it intends to do so in the future. The Tribunal noted that the business was incorporated in November 2018, some eight months ago, and enquired why the business did not lodge the application during this time. The applicant was unable to provide a meaningful answer.
The applicant stated in his evidence that, as of the day of the Tribunal hearing, no sponsorship or nomination application was lodged by Sardarji Services Pty Ltd.
In his evidence, the applicant stated that in February 2019, he was granted a bridging visa ‘E’ by the Department which is subject to the 8101 (no work) condition. He confirmed in his evidence that he is and has been working for Sardarji Services Pty Ltd, despite knowing that he was prevented from doing so by the condition imposed on his bridging visa.
The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached condition 8107 that was imposed on his Subclass 457 visa and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
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. The Tribunal asked the applicant if there is anything else that he wants to raise with the Tribunal.
The applicant stated that he wants to be a good businessman in Australia, that he worked and studied in Australia and that he wants to stay in Australia. He further stated that he is sorry for whatever happened in the past and that in the future, he intends to comply with any visa conditions imposed by the Department.
Adjournment requests
In his correspondence of 5 August 2019, the applicant stated that the new nomination will be lodged within two months ‘as we are in the process of preparing the paperwork’. The Tribunal considered this to be an implied request for adjournment of this matter until the applicant’s employer submits and obtains decisions on sponsorship and nomination applications from the Department.
In his oral evidence, he reiterated that Sardarji Services Pty Ltd intends to lodge sponsorship and nomination applications in the future, nominating the applicant for the position of a motor mechanic. In other words, the applicant made an implied request for the Tribunal to adjourn this matter until the Department makes decisions on sponsorship and nomination applications yet to be lodged by his new employer.
The Tribunal considered whether, in the circumstances of this case, the applicant had a fair opportunity to secure sponsorship and nomination by a prospective employer and the significance of the Tribunal’s decision not to adjourn the review for the applicant.
In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.
[1] [2002] FCA 617
[2] [2012] FMCA 28
[3] [2013] HCA 18 (8 May 2013)
[4] [2014] FCAFC 1 (4 February 2014)
[5] [2014] FCA 915 (28 August 2014)
The Tribunal has had regard to the fact that the applicant ceased his employment at the sponsoring business in June 2017 and had more than two years to find an Australian business willing and capable of sponsoring and nominating the applicant for a temporary business visa. In addition, it is uncertain if and when the new prospective employer will lodge the sponsorship and nomination applications with the Department, how long this process will take as well as what will be the outcome of these applications.
Apart from the applicant’s statement that the business intends to lodge new sponsorship and nomination applications with the Department, no supporting documentary evidence was provided to the Tribunal. The applicant has failed to provide a meaningful explanation as to why the business failed to lodge these applications with the Department since it was incorporated in November 2018, save to say that he was told that he is unable to sponsor himself.
The Tribunal notes that, if the applicant’s visa remains cancelled, he may be required to depart Australia. However, the applicant is not prevented by Public Interest Criterion (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.
Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review and wait for the outcome of criminal proceedings or for the outcome of a potential sponsorship and nomination application yet to be lodged by the applicant’s new prospective employer.
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
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?
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. This condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 60 consecutive days.
Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at GS Auto Electric and Air Conditioning owned by Mr Jagdeep Singh on 6 June 2017. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. Accordingly the Tribunal finds that the applicant did not comply with condition 8107(3)(b).
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
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’.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[6] 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.[7]
[6] See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634
[7] 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]
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
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.
The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a motor mechanic on a temporary basis. The applicant lost his employment on 6 June 2017. The applicant decided to remain in Australia from June 2017 to the present time. He claims that from June 2017 to November 2017 he attempted to find a new sponsor. He was not successful. In November 2017, he set up his own business and continues to work for this business to the present day.
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. Based on the evidence before it, the Tribunal finds that the applicant’s visa, but for the cancellation, would have ceased on 12 December 2020 in any case.

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 6 June 2017. The Tribunal gives significant weight to this consideration.
The reason for and extent of the breach
The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 6 June 2017. He lost this employment because he took time off work without seeking permission from his employer and because he made several mistakes caused by a lack of concentration. He claims that problems at work were caused by his marital problems experienced at the time. The Tribunal considered medical evidence provided in support of this claim and accepts that the applicant was diagnosed with situational stress in early 2017 and that by October 2017 he was stress free and had no signs and symptoms.
The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 60 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 60 consecutive days’.
However, the applicant did not work for the business that is an approved sponsor and that successfully nominated the applicant for a position of a motor mechanic from 6 June 2017 to the present time. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 24 months since the original cessation of employment represents a significant breach of condition 8107.
Circumstances in which the ground for cancellation arose
The applicant ceased employment at the sponsoring business on 6 June 2017. The Department did not proceed with the visa cancellation until 24 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.
Past and present conduct of the visa holder towards the Department
During the course of the Tribunal’s hearing, the applicant gave evidence that in February 2019, he was granted a bridging visa E by the Department that was and still is subject to the 8101 (no work) condition. Despite knowing that he was prevented from working in Australia, he stated in his evidence that he is and has been working for Sardarji Services Pty Ltd since November 2017.
The Tribunal finds that the applicant deliberately breached the 8101 (no work) condition imposed on his bridging visa E for an extended period of time. The Tribunal gives significant weight to this consideration.
Degree of hardship that may be caused to the applicant
The Tribunal has taken into consideration that the applicant had set up his own business in November 2017. The business was incorporated in 2018 with the intention of sponsoring the applicant for a temporary work visa. According to his evidence, the shareholding and directorship of this business was transferred to the applicant’s friend in July 2019 in order to avoid potential ‘self-sponsoring’ problems with eventual sponsorship and nomination applications.
The Tribunal accepts that the applicant will suffer financial hardship if the visa remains cancelled and the applicant is required to depart Australia.
The Tribunal has taken into consideration the applicant’s evidence that his father and siblings live in India and that he does not have any relatives in Australia. 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.
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 not to enable settlement in Australia on an indefinite basis. 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.
In any event, 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 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
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.
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
There are no consequential cancellations.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
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).
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
There is no evidence before the Tribunal regarding this matter.
Other matters raised by the applicant
The applicant stated that he wants to be a good businessman in Australia, that he worked and studied in Australia and that he wants to stay in Australia. He further stated that he is sorry for whatever happened in the past and that in the future, he intends to comply with any visa conditions imposed by the Department.
Whilst the Tribunal acknowledges the above statements, it observes that a good businessman in Australia is not expected to work in Australia without having permission to do so. The Tribunal further acknowledges that the applicant studied and worked in Australia but his present disregard for the Australian law is not an indication that he will comply with any visa conditions imposed by the Department in the future.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Antonio Dronjic
Member

[2019] AATA 4186

15 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Appeal