Singh (Migration)

[2019] AATA 3544

Singh (Migration) [2019] AATA 3544 (10 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ramanpreet Singh

CASE NUMBER:  1905289

HOME AFFAIRS REFERENCE(S):           BCC2018/5454148

MEMBER:Jennifer Cripps Watts

DATE:10 July 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 10 July 2019 at 11:33am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – failure to attend scheduled hearing – ground for cancellation – genuine position – Café or Restaurant Manager – site visit – business ceased to operate – consideration of discretion – purpose of stay ceased to exist – extent of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 February 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 the delegate was satisfied that a prescribed ground for cancelling the visa applied to the applicant because the delegate was not satisfied that the position associated with the nominated occupation is 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 6 March 2019, the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision.  On 11 June 2019, the Tribunal sent the applicant a hearing invitation, in writing.  He was informed that if he is not able to attend he should advise the Tribunal as soon as possible, but that he will need a very good reason for the hearing to be adjourned.  The applicant was informed also that if he did not attend the hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear, or his application for review may be dismissed without further consideration of any additional information not already before the Tribunal.  The applicant was asked to provide any additional documents or information he wished to be considered on the review a week before the hearing, by 3 July 2019, and to return the ‘Response to Hearing Invitation’ form included with the invitation within seven days of receiving it.  The applicant did not respond to the hearing invitation to indicate whether he would attend.  He did not inform the Tribunal of any reason why he would not be able to attend the scheduled hearing.  He provided no additional information or documents.

4. When the applicant applied for review, he informed the Tribunal of his contact email address (for written communication) and mobile phone number.  He provided a residential address in Camillo Street, Seven Hills.  There is no record in the Tribunal system that the applicant has notified us of any change to those details since he lodged the review application.  The hearing invitation was sent to his email address and SMS hearing reminders were sent to his mobile phone, on 3 and 9 July 2019.  Notification was received that delivery of the SMS sent on 3 July failed.  At the time of this decision, no notification has been received that the 9 July 2019 SMS failed.  In any event, the SMS hearing reminders are merely a courtesy.  The Tribunal is satisfied that the applicant was properly invited to the hearing, in writing. 

5. The applicant did not attend the Tribunal hearing scheduled at 9:30am on Wednesday 10 July 2019.  At 9:30am, the presiding member was informed the applicant had not yet arrived for his hearing.  At around 10:05am, the presiding member was again informed the applicant had not arrived for his hearing.  In the circumstances, the Tribunal is satisfied that the applicant has had ample time and opportunity since being informed by the Department, on 29 January 2019, of the intention to cancel his visa and being invited by the Tribunal, on 11 June 2019, to attend his scheduled hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The Tribunal has received no communication from the application since he lodged his review application on 6 March 2019, some four or so months ago. 

6. In the circumstances, a decision has been made on the documentary evidence before the Tribunal and other relevant matters.  The Tribunal did not publish the decision until two hours after the applicant failed to attend his hearing, which is considered in the circumstances of this case to be reasonable amount of time for the applicant to provide a reason for the non-attendance.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(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.

9. Matters in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, included:

   a.The applicant was nominated for the Subclass 457 visa in the occupation of Cook (ANZSCO 351411) by R & A Restaurants Pty Ltd (the sponsor)

   b.On 9 November 2015, the applicant was granted a Subclass 457 visa, nominated by R & A Restaurants Pty Ltd (the sponsor), with a principal place of business at 352 Bay Street, Brighton-Le-Sands, New South Wales, 2216, in the occupation of Café or Restaurant Manager (ANZSCO)

   c.On 9 November 2015 the applicant was granted the Subclass 457 visa to work as a café or restaurant manager for the sponsor

   d.On 14 August 2018, Australian Border Force (ABF) officers undertook a sponsor monitoring audit and conducted a site visa to the sponsor’s Brighton-Le-Sands premises, but discovered the business was closed and appeared to have been closed since at least 6 June 2018 - they made further attempts to contact the sponsor but were unsuccessful

   e.ABF conducted further checks and found that the sponsor also had a restaurant in Wellington, New South Wales, called Indo-French Restaurant – they contacted Wellington Police on 20 August 2018 who confirmed that the sponsor’s restaurant in Wellington had been closed for over 12 months

   f.ABF officers made requests to the sponsor for information, including a request for details of any changes to the business’ circumstances since 15 September 2015, but received no response

   g.On 16 November 2018 ABF cancelled the sponsorship and imposed a 60 months sanction to 16 November 2023 for failure of obligations to provide information to the Department and no longer actively operating

   h.Under s.119 of the Act, a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Subclass 457 visa was sent to him on 29 January 2019, giving particulars of the ground for cancellation under r.2.43 of the Regulations and inviting the applicant to response in writing - no response to the NOICC was received

   i.The applicant did not dispute the grounds for cancellation (under s.116(1)(g)

   j.The sponsor ceased operating no later than 16 November 2018 and therefore the position associated with the nominated occupation no longer existed: r.2.43(1)(kb)(iii)

   k.The applicant had not, at the time the visa was cancelled on 28 February 2019, been granted another substantive visa

10. The Tribunal corrects an error in the delegate’s decision for the record.  On pages 3 and 4 of the decision the nominated occupation relating to the applicant’s nomination by the sponsor is indicated to be Café or Restaurant Manager (ANZSCO 141111) and on page 5 it is Cook (ANZSCO 351411).  The Tribunal confirms that the nomination was for a Café or Restaurant Manager, not a Cook.  However, nothing material turns on the error for the purpose of making a decision.

11. The applicant has provided the Tribunal with little, if any additional information, other than the delegate’s decision, despite being invited to do so in writing, either by way of documents or information and/or attending a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.  For that reason, the Tribunal has relied substantially on relevant information in the delegate’s decision in reaching its own decision on the review and the applicant’s visa application, lodged electronically with the Department on 17 September 2015, and other relevant matters.

12. According to the information provided by the applicant, in his online visa application, he was born in December 1989 in Jalandhar, India, and held an Indian passport that expired on 9 June 2018.  The Tribunal does not know whether the applicant has a current passport.  He first arrived in Australia in 2009, at 19 years of age.  Before applying for the Subclass 457 visa in 2015, nominated by the sponsor, the visa the applicant held was a student visa that ceased on 3 September 2016.  He provided information about his past employment, indicating he worked in Australia at:

    a.Larousse French Restaurant (for the sponsor) as a restaurant manager from 18 August 2014 to 10 September 2015

    b.Pizza Cappers as a pizza chef from 1 January 2012 to 31 July 2014

    c.Encore Pizza as a pizza chef from 1 January 2010 to 1 January 2011

    d.Night Flyer as a supervisor from 1 September 2009 to 1 January 2011.

    Does the ground for cancellation exist?

13. 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.

14. The applicant was invited to comment on adverse information by the Department, by way of an NOICC sent to him on 29 January 2019, but did not respond.  He was invited to attend a Tribunal hearing to give evidence and present arguments and did not respond to the hearing invitation or provide any additional information or documents he wished to be considered.  The Tribunal is satisfied the applicant was properly invited to attend a scheduled hearing at 9:30am on 10 July 2019.  He did not attend the scheduled hearing, seek an adjournment or provide any reason why he did not attend.

15. The applicant has made no claim, nor has he provided any submissions, to either the Department or the Tribunal, disputing the ground for cancellation of his visa. On the information before the Tribunal, the sponsor ceased actively operating its business no later than 16 November 2018 and was sanctioned by ABF on 16 November 2018 for 60 months. It appears that the ABF was of the view, when they attend the sponsor’s premises at Brighton-Le-Sands to conduct a sponsor monitoring audit, that the business had not been active since 6 June 2018. However, ABF cancelled the sponsorship on 16 November 2018 and the Tribunal has taken this to be the relevant date relating to the applicant ceasing employment with the sponsor, as the earlier date cannot be verified. The position for which the applicant was nominated by the sponsor ceased to exist no later than 16 November 2018 and was therefore not a genuine position from that date. On the available information, the Tribunal finds that a prescribed ground for cancelling a visa applies to the applicant: s.116(1)(g).

16. 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

17. 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, if any, raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

18. As already mentioned, the Department sent the applicant an NOICC on 29 January 2019 clearly informing him of the reasons why it believed the ground for cancelling his visa existed.  He was invited to respond.  The applicant did not respond.  He has made no claims or submissions disputing the ground for cancellation, nor did he provide reasons why the visa should not be cancelled.  The same applies at the time of this decision.  Since lodging the review application on 6 March 2019, the applicant has not engaged with the Tribunal, despite being invited to provide additional information or documents and to attend a scheduled hearing to give evidence and present arguments.

    Purpose of the applicant’s travel and stay in Australia and compelling need to remain here

19. The purpose of the applicant’s stay in Australia was to work for the sponsor in the position of Café or Restaurant Manager, at Brighton-Le-Sands, holding a Subclass 457 visa, for four years from 9 November 2015, which is when his visa was granted.  The position has not existed or been a genuine position, on the information collected by ABF, which the Tribunal considers to be reliable information (contained in the delegate’s decision), since at least 16 November 2018.  The Tribunal has also checked Departmental records and verified the sponsor’s standard business sponsorship ceased on 16 November 2018.  As the sponsor has not been actively operating since at least 16 November 2018.

20. From 16 November 2018, the purpose of the applicant’s stay in Australia was for the purpose of filling a temporary skill shortage to work for the (approved) sponsor who nominated him in the position of Café or Restaurant Manager.  The sponsor ceased actively operating its business no later than 16 November 2018 and is no longer an approved standard business sponsor.  The purpose of the applicant’s stay in Australia is a circumstance that ceased to exist on 16 November 2018.

21. The applicant has made no claim, nor has he provided any information to indicate, that there are any reasons he needs to remain in Australia which may be considered by the Tribunal to be compelling.

    Extent of compliance with visa conditions

22. On the information before the Tribunal, the applicant has not worked in the nominated occupation for the sponsor since at least 16 November 2018, which is when the sponsor’s standard business sponsorship was cancelled, on the basis they were no longer actively operating the business, with a 60 month sanction imposed, to November 2023.

23. It is a condition of the applicant’s Subclass 457 visa that he must not cease to be employed by the sponsor or cease to undertake the activity in relation to which the visa was granted.  If a visa holder ceases employment with their sponsor, they have 90 days to find a new sponsor to nominate them working in the same nominated occupation.  As the Tribunal has found that the applicant ceased to work for the sponsor since at least 16 November 2018, it is the Tribunal’s view that he no longer satisfies r.457.223(4)(d) of Schedule 2 to the Regulations that requires he has a genuine intention to perform the nominated occupation.  The applicant has made no claim and provided no information that indicates he has found another sponsor.  On this basis, he has not complied with his visa conditions since he ceased working for the sponsor, which is about eight or so months ago.  There is no information before the Tribunal that the applicant has been otherwise non-compliant relating to the Subclass 457 visa or any previous visas he has held.

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

24. There is no claim made or any information before the Tribunal that the applicant, who is a citizen of India, will suffer any financial, psychological, emotional or other hardship if the visa is cancelled.  The Subclass 457 visa is a temporary visa and it is reasonable to think that the holder of a temporary visa would be aware and understand that they may need to depart Australia when the visa ceases and be able to make appropriate arrangements for themselves.

    Circumstances in which the ground of cancellation arose

25. The Tribunal has no verifiable information before it that the applicant was working for the sponsor up to 16 November 2018.  However, on the face of it, the Tribunal accepts he was, as there is no verifiable information before the Tribunal that he wasn’t.  The ground for the visa cancellation arose when ABF cancelled the sponsorship relating to the applicant’s Subclass 457 visa and sanctioned the sponsor for 60 months, to November 2023.  It appears unlikely, in the Tribunal’s view, that there were any circumstances surrounding the cancellation that were within the applicant’s control.

    Past and present behaviour of the applicant towards the Department

26. Up until the time the Department sent the applicant the NOICC in January 2019, which elicited no response from him, there appears to be nothing to indicate he was unco-operative in his dealings with the Department.  

    Whether there would be consequential cancellations under s.140

27. There are no dependent applicants who hold a Subclass 457 visa because they are members of the family unit of the primary visa holder (the applicant).  For this reason, on the evidence, the Tribunal is satisfied that there will be no consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled.

    Mandatory legal consequences, such as unlawfulness or detention

28. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be subject to detention if he does not voluntarily depart Australia.  The applicant would also be s.48 barred from applying for most other visas (although there are some exceptions), giving him limited options to remain in Australia.  He may be affected by Public Interest Criteria 4013 from being granted certain temporary visas.  However, as the applicant has made no claim and provided no evidence to the Tribunal that he has a need, or even a desire, to remain in Australia, minimal weight is given to these negative circumstances affecting him.

    Whether any international obligations, including non-refoulement, would be breached

29. There is no evidence before the Tribunal that suggests the applicant has any children and therefore consideration of the best interests of any children is not applicable in this case.  The applicant is a citizen of India.  He has made no claim, nor has he provided any information to the Tribunal that suggests Australia’s international obligations, including refoulement, would be breached if the visa is cancelled.

    Other relevant matters

30. The Tribunal is satisfied it has considered all relevant facts and matters. 

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

    DECISION

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

    Jennifer Cripps Watts
    Member