Singh (Migration)

[2019] AATA 3989

Singh (Migration) [2019] AATA 3989 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parmpal Singh

CASE NUMBER:  1823546

HOME AFFAIRS REFERENCE(S):           BCC2017/2561194

MEMBER:Sheridan Lee

DATE:13 June 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 13 June 2019 at 9:48am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment with the sponsor over 90 days – no new sponsor within the prescribed time period – sponsoring business ceased operating – closure of the 457 program – nomination not approved for new employer – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 457.223; Schedule 8; Condition 8107

CASES

Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492
Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 August 2018 made by a delegate of the Minister for Immigration 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)(b) on the basis that he ceased working for his sponsoring employer for a period exceeding 90 consecutive days, in breach of visa condition 8107 of Schedule 8 to the Migration Regulations 1994 (the Regulations). 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. The applicant appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. He provided the Tribunal with a copy of the notification of cancellation of his Subclass 457 visa along with the decision record issued by the Department of Home Affairs.

4. The applicant was represented in relation to the review by his registered migration agent.

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. On 31 July 2015, the applicant was granted a Subclass 457 visa on the basis that he was sponsored by a standard business sponsor under cl.457.223(4) of Schedule 2 to the Regulations. 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.

8. The applicant was nominated by Guraya Group Pty Ltd to work in the occupation of Cook.

9. The decision of the delegate of the Minister sets out that on 14 July 2017, Guraya Group’s sponsorship agreement was cancelled and the company was barred from lodging any further sponsorship applications for five years.

10. On 12 September 2017, a new nomination application was lodged in respect of the applicant by Singh’s On the Way Pty Ltd. The nomination application was refused by the Department on 7 June 2018. The company applied to the Tribunal for merits review of that decision, however the review application was withdrawn on 20 July 2018.

    Notification procedures

11. 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.

12. 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].

13. On 2 July 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’). The notice was reissued to the applicant on 31 July 2018 due to errors in the first notice.

14. The notice outlined that evidence held by the Department indicated that the applicant had ceased employment with Guraya Group on or before 14 July 2017. As a result, the Department informed the applicant that his Subclass 457 visa might be cancelled under s.116(1)(b) of the Act because he may have breached condition 8107.

15. The applicant was invited to comment on why his visa should not be cancelled, and on 4 August 2018 the applicant provided a brief response to the second notice.

16. In the circumstances, the Tribunal considers that the Department provided the applicant with sufficient information to adequately understand and, therefore, respond to the notice of intention to consider cancellation, as required under the legislation.

    Does the ground for cancellation exist?

17. 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, condition 8107(3) applies because the Department granted the applicant a Subclass 457 visa on the basis that the applicant met the requirements of cl.457.223(4).

18. 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.

19. At the hearing, the applicant gave evidence that he started working for his sponsor in 2015 and continued until Christmas 2016. At that time, the owner told the applicant that the restaurant would close for renovations. After two or three months, he started to ask when the restaurant would re-open. The applicant alleged that he asked his employer if the closure would affect his visa and was told it would not. After some time, the applicant received a letter from the Department informing him that his employer had been banned and that he had 60 days to secure a new sponsor.

20. The applicant gave evidence that he found a new sponsor in Coldstream: Singh’s on the Way. The company lodged a nomination application on 12 September 2017 and it took almost a year to process. While the nomination was being processed, the applicant returned to India because his grandfather was sick. Departmental records confirm that the applicant departed Australia on 26 March 2018 and returned on 5 May 2018. He gave evidence that when he returned to Australia, he was advised by the lawyer of the employer that the nomination was refused. The applicant alleges that he called the prospective employer and he didn’t respond, however eventually the employer told him the business was shut down.

21. Based on the applicant’s evidence, the Tribunal is satisfied that he has not worked for his sponsoring employer since approximately Christmas 2016. 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

22. 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’.

23. 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]    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])

24. 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 at the hearing.

25. 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

26. At the hearing, the applicant gave evidence that he first arrived in Australia in 2008 to study and has been living in Australia continuously since that time. He completed Certificate III in Food Processing, Certificate IV in Management and Certificate III in Commercial Cookery. After completion of his study, he went out to find a job.

27. The applicant was issued a Subclass 457 visa on 31 July 2015 to enable him to remain in Australia and work for his sponsoring employer, Guraya Group, as a cook. Once he secured the job, he felt he was ready and his family arranged for him to marry. The applicant’s wife and family reside in India.

28. Prior to the cancellation of his Subclass 457 visa, the applicant sought a new sponsoring employer. However, on 7 June 2018 the Department refused the nomination application lodged for this purpose. While an application for merits review was initially lodged, the application was eventually withdrawn. Due to legislative amendments that took effect from 18 March 2018, it is no longer possible to lodge a new nomination application under the Subclass 457 scheme.

29. On 23 October 2018, the Tribunal wrote to the applicant to invite him to comment on or respond to information by 7 November 2018. The particulars of the information were:

    ·On 31 July 2015 the applicant was granted a Subclass 457 visa which was originally valid until 31 July 2019, however it was cancelled on 8 August 2018.

    ·The Subclass 457 visa was subject to condition 8107 which required in part that he must not cease to be employed by his sponsor for a period exceeding 90 days.

    ·There was no information to indicate that the applicant recommenced work and a recent check indicated that no relevant business nominations were pending.

30. The letter outlined that the information was relevant to the review because it indicates that the applicant breached a condition of his Subclass 457 visa and there are grounds to cancel the visa under s.116(1)(b) of the Act. It further outlined that the applicant’s Subclass 457 visa was granted to him for the purpose of undertaking particular employment with an approved sponsor and that purpose ceased when he stopped being employed by that sponsor. The letter noted that the applicant had not secured a new approved sponsor. Finally, the letter outlined that if the Tribunal were to rely on the outlined information in making a decision it may determine that grounds to cancel his Subclass 457 visa exist and decide that his visa should be cancelled.

31. The applicant responded to the invitation on 7 November 2018. The response outlined the circumstances in which the applicant stopped working for his employer and noted that he had received numerous job offers since that time. Attached to the response was a letter from Inderjit Singh Uppal, Director of Mustard Seed Adelaide Pty Ltd, outlining that the company was ready to sponsor the applicant as a full time cook. The letter requested additional time so as to ‘fulfil the requirements of immigration department before lodging his application.’

32. No further evidence was submitted to the Tribunal prior to the hearing on 15 February 2019.

33. At the hearing, the applicant gave evidence that Mustard Seed Adelaide was willing to sponsor him. The Tribunal attempted to call the employer during the hearing and there was no answer. Later that day, the Tribunal received an email from Mr Singh advising that he was in India and couldn’t answer the call. The email confirmed that the business still had a vacancy for a full time cook.

34. Additional time was provided for the applicant to submit evidence to substantiate his claim to have secured a new employer willing to submit a nomination application under the new Subclass 482 scheme. The Tribunal requested the evidence by 22 March 2019.

35. On 14 March 2019, the applicant wrote to advise that he had received a letter of offer from GV Food Court in Shepparton. The letter requested additional time so that the business could fulfil the requirements to lodge a nomination. The email attached a letter from Parmila Devi, Manager of GV Food Court. The letter outlined that the business has had difficulty finding a suitably qualified cook and confirmed that the business was willing to sponsor the nominee. On 20 March 2019, the applicant provided a copy of a receipt for an advertisement placed on SEEK.com by GV Food Court. The Tribunal provided the applicant until 18 April 2019 to provide evidence to confirm that a new nomination had been lodged.

36. On 12 and 27 April 2019, the applicant’s newly appointed representative requested an extension beyond 30 April 2019 on the basis that the applicant had not yet received work rights from the Department. No evidence was submitted to show if and when the applicant had applied for work rights. At the date of decision, no further submissions have been received.

37. As a result, the Tribunal finds that the applicant does not have another Australian employer willing or able to sponsor him. He has not worked for Guraya Group since 2016 and has had a significant amount of time to secure a new sponsor, including more than 20 months that elapsed between his cessation of work and the cancellation of his visa. In the circumstances, the Tribunal does not consider it appropriate to provide any additional time for the applicant to submit supporting evidence, particularly when considered in the context that the original visa was set to expire in approximately six weeks. The Tribunal finds that the purpose for the grant of the Subclass 457 visa to the applicant no longer exists.

38. The applicant wants to remain in Australia so that he can work and contribute financially to his family. He has applied for a dependant visa for his wife, however gave evidence that his current issues are impacting on her visa application. While the applicant outlined his desire to remain in Australia, he did not outline any compelling need to remain in Australia.

39. 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

40. 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.

41. At the hearing, the applicant confirmed that he has had no other compliance issues since arriving in Australia. This does not weigh in favour of cancelling the visa.

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

42. The applicant’s wife and family live in India. He gave evidence that his inability to work and have his wife join him in Australia has placed a strain on the marriage. The applicant outlined that his father is the only member of his family that knows he is unable to work.

43. While it might be upsetting for the applicant 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 is qualified as a cook and would be free to work in India, while he has been unable to do so in Australia for some time. The applicant held a temporary visa with no guarantee that he could remain in Australia on the expiration of that visa. This does not weigh against exercising the discretion to cancel the Subclass 457 visa.

    The circumstances in which the ground for cancellation arose

44. 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.

45. The Tribunal accepts the applicant’s evidence that he placed a certain level of trust in his employer and believed that the restaurant would only be closed temporarily, and that this goes some way to explain why there was a lengthy delay before a new nomination was submitted. Further, the Tribunal notes that the applicant attempted to secure a new sponsor, lodging a new nomination application prior to the cancellation of his visa. These factors weigh against exercising the discretion to cancel the visa.

46. However, as put to the applicant, that nomination was refused in June 2018 and his visa was cancelled in August 2018. No new nomination applications have been lodged since that time. The applicant has not worked for his sponsoring employer for more than two years.

47. In the circumstances, the Tribunal considers that the applicant took steps prior to the cancellation of his visa in an attempt to regularise his migration status in Australia. However, 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 a sponsoring employer for more than two years. 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

48. 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 s.189 of the Act, and liable for removal under s.198 of the Act 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.

49. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116.

    Australia's international obligations

50. 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).  

1. 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.

2. 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 to cancel the applicant’s Subclass 457 visa outweigh the reasons not to cancel the visa.

   DECISION

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

   Sheridan Lee
   Member