Singh (Migration)

[2019] AATA 2378

Singh (Migration) [2019] AATA 2378 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amrinder Singh
Mrs Madhu Bala

CASE NUMBER:  1816407

HOME AFFAIRS REFERENCE(S):           BCC2018/835360

MEMBER:Sheridan Lee

DATE:25 June 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 second named applicant.

Statement made on 25 June 2019 at 12:14pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – sponsoring business failed and ceased operations – purpose of visa grant no longer exists – did not seek alternative sponsor – substantial breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223; 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 31 May 2018 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 applicant failed to comply with visa condition 8107(3)(b) of his Subclass 457 visa. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bernard Walkley, Director of the applicants’ sponsoring employer, Walkely Corp Pty Ltd.

5. 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

6. 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.

   Background

7. Departmental records show that on 8 October 2014 a delegate of the Minister for Immigration approved a nomination by Walkely Corp to sponsor the applicant for a Subclass 457 visa to work in the occupation of Cook.

8. The applicant was subsequently granted a Subclass 457 visa on the basis that he was sponsored by a standard business sponsor under cl.457.223(4). The Subclass 457 visa was granted subject to mandatory condition 8107. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The visa would have naturally expired on 8 October 2018.

   Notification procedures

9. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[1] In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

   [1]     Section 119.

10. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[2]

    [2]     See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32].

11. On 23 May 2013, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that departmental records indicated that he had ceased working for the employer, effective from 15 February 2018. As a result, the Department informed the applicant in the relevant notice that his Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because he may have breached condition 8107. The notice invited the applicant to comment on why his visa should not be cancelled, and he responded to this invitation on 24 May 2018.

12. Accordingly, the Tribunal finds that the applicant was given notice of the Department’s intention to consider cancellation of his Subclass 457 visa as required under the legislation.

    Does the ground for cancellation exist?

13. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8107 attached to the applicant’s visa. Specifically, subclause 8107(3) applies because the Department granted the applicant a subclass 457 visa on the basis that the applicant met the requirements of subclause 457.223(4).

14. Relevantly, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer. As outlined, condition 8107(3)(b) required that the applicant not cease employment for more than 90 consecutive days.

15. At the hearing, the applicant confirmed that he ceased working for Walkely Corp when the company was liquidated. He gave evidence that he commenced working as a Cook at the seafood restaurant in Mission Beach in 2015 and continued until 2018 when he discovered that Mr Walkely was bankrupt. He has not worked for his sponsoring employer since that time.

16. As such, 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 visa should be cancelled. The circumstances that gave rise to the cancellation as put forward by the applicant are considered below.

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

18. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. 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.[3]

    [3]     See, eg, 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]

19. 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 and the oral evidence from the applicant and his former employer at the hearing.

20. The policy outlines that the following matters should be taken into account, if relevant, when deciding whether to cancel a visa.

    The purpose of the visa holder’s travel to and stay in Australia

21. At the hearing, the applicant gave evidence that he first arrived in Australia in June 2009 to study hospitality management. He has been living in Australia since that time. The applicant’s wife also lives in Australia.

22. The applicant was issued a Subclass 457 visa on 8 October 2014 to enable him to remain in Australia and work for his sponsoring employer, Walkely Corp, as a Cook. The applicant’s wife is included as a dependant on his Subclass 457 visa.

23. Mr Walkely gave evidence that he commenced renovations at his restaurant, Fish Bar. The renovations blew out and the business started to experience financial difficulties. Mr Walkely received a winding up notice in October 2017, however he felt that he could salvage the business. He confirmed that ultimately the business failed and ceased operations in early March 2018.

24. The applicant gave evidence that by the time he received the notice of intention to consider cancellation from the Department he had already ceased employment for more than 90 days and was advised by his lawyer that there would be no point in attempting to secure a new sponsor. The applicant’s Subclass 457 would have expired in October 2018 and it is no longer possible for him to secure a sponsor under the Subclass 457 scheme. The applicant further advised that he secured work rights in October 2018 and has been working in Melbourne as a taxi driver.

25. As a result, the Tribunal finds that the applicant does not have another Australian employer willing or able to sponsor him under the Subclass 457 scheme. Accordingly, given this and the fact that the applicant ceased his employment with Walkely Corp in early 2018, the Tribunal finds that the purpose for the grant of the Subclass 457 visa to the applicant no longer exists.

26. While the applicant outlined his desire to remain in Australia, he did not outline any compelling need to remain in Australia.

27. The Tribunal finds that this factor does not weigh against exercising the discretion to cancel the Subclass 457 visa.

    The extent of compliance with visa conditions and the visa holder’s past and present behaviour towards the Department

28. The Tribunal accepts that the applicant has not previously breached any visa conditions. There is also no evidence to suggest that the applicant has a history of difficulties, or lack of co-operation with the Department.

29. At the hearing, the applicant confirmed that he has had no other compliance issues with the Department since arriving in Australia in 2009. This weighs against exercising the discretion to cancel.

    The degree of hardship that may be caused to the visa holder and any family members

30. As outlined, the applicant’s wife is listed as a dependant on his Subclass 457 visa. As such, her visa would be subject to consequential cancellation under s.140 of the Act.

31. The applicant and his wife live in a rental property in Sunshine West. He gave evidence that his family own property in Punjab, but there is nothing in his name. The couple send money to support the applicant’s family in India. The applicant’s father passed away approximately three months prior to the hearing. Before his death, the applicant had borrowed money from friends to send to his family for his father’s treatment.

32. The applicant felt that having his visa cancelled was a waste of his ten years in Australia.

33. While it may be upsetting for the couple to depart Australia, particularly after living here for more than 10 years with aspirations to remain permanently, the Tribunal finds that the cancellation of the Subclass 457 visa will not result in any significant hardship to the applicant or his family. The Tribunal notes that the applicant has no financial commitments related to his housing in Australia, and has family with property in India. While the applicant may be in a position to financially contribute to his family through his employment in Australia, he will not be precluded from doing so in India. The applicant now has the benefit of holding qualifications and work experience gained in Australia. The Tribunal notes that the applicant held a temporary visa with no guarantee that he could remain in Australia on the expiration of the visa.

34. These factors do not weigh against exercising the discretion to cancel the visa.

    The circumstances in which the ground for cancellation arose

35. The policy suggests the Tribunal should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

36. At the hearing, Mr Walkely gave evidence that he had withheld details of the company’s financial difficulties from the applicant. He explained that the applicant had no idea of the extent of the issue and expressed genuine remorse at having jeopardised the applicant’s visa.

37. The applicant explained that he stopped receiving payment from the company about one and a half years before he finished work. His wife worked at Woolworths and they survived on her salary. When he did receive payment it was in cash and he never received payslips. The applicant contacted the Fair Work Ombudsman in relation to the unpaid wages and was advised that there was no mechanism through which to recover the money as the company has been liquidated.

38. The Tribunal questioned why the applicant did not consider looking for a new sponsor in the circumstances. The applicant explained that he trusted Mr Walkely.

39. The Tribunal accepts that the applicant had not been advised of the full scope of the financial situation of the company. However, considers that it would have been reasonable to suspect that there were significant issues and seek new employment in circumstances where no wage was received for a significant period of time. Further, the applicant could have contacted the Department in respect of the breach of the employer’s sponsorship obligations.

40. At the hearing, the applicant advised that he has no visa or permanent residency applications pending. He has work rights, but has not been working in the nominated occupation. The applicant’s non-compliance with condition 8107 of his visa is substantial, in the sense that at the time of decision he has not been employed with his sponsoring employer for more than a year. The decision not to seek out a new sponsor was a decision within the applicant’s control. The Tribunal considers that this weighs in favour of exercising the discretion to cancel the visa.

    Whether there are mandatory legal consequences to a cancellation decision

41. The Tribunal acknowledges that upon the cancellation of his visa, the applicant would become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s198 if he does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of his visa.

42. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new visa from overseas in the future.

    Australia's international obligations

43. 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).  

44. There is nothing in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Therefore, the Tribunal is satisfied that there is little in these matters to weigh against exercising the discretion to cancel.

    Any other relevant matters

45. At the hearing, the applicant’s representative noted that he may seek ministerial intervention. The Tribunal notes that it is open to the applicant to make a request for the Minister to exercise their discretion under s.417 of the Act upon receipt of this merits review decision. Having considered the guidelines, the Tribunal does not consider the matter suitable for a referral.

46. Based on the evidence before it and taking into account all the relevant circumstances, on balance, the Tribunal finds that the reasons for exercising the discretion not to cancel the applicant’s Subclass 457 visa do not outweigh the reasons to cancel the visa.

    DECISION

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

48. The Tribunal has no jurisdiction with respect to the second named applicant.

    Sheridan Lee
    Member