Singh (Migration)

[2019] AATA 590

Singh (Migration) [2019] AATA 590 (25 February 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajbeer Singh

CASE NUMBER:  1729107

HOME AFFAIRS REFERENCE(S):           BCC2017/3000080

MEMBER:Karen Synon

DATE:25 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 25 February 2019 at 2:12pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – commence employment within 90 days – employer required payment for visa grant – applicant did not inform the Department – consideration of discretion – different employer looking to sponsor the applicant – genuine need – nomination application undetermined – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 November 2017 made by a delegate of the Minister for Immigration and Border Protection 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 did not commence employment within 90 days after his visa was granted and so had not complied with Condition 8107(3)(aa)(ii).

3. The applicant applied for review of the decision to cancel his visa on 21 November 2017 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Invitation to comment and provide information

5. On 3 October 2018, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     The information is from the Department of Home Affairs records and relates specifically to [the applicant]:

   o    You were granted a Subclass 457 visa on 14 December 2016.  Your visa was sponsored by Astha Group Pty Ltd.

   o    Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased to be employed by your approved sponsor, the period must not exceed 90 consecutive days.

   o    Your visa was cancelled on 17 November 2017, as you failed to commence work within 90 days after your visa was granted.

   o    There is no information to indicate that you recommenced employment with your sponsor.

   o    A recent check indicates that no new relevant business nominations have been approved in respect of you since your visa was cancelled.

   In conducted this review in your case:

   ·We will first consider if there are grounds to cancel your Subclass 457 visa in accordance with s.116 of the Migration Act.

   ·If we determine that there are such grounds, we will then consider if your visa should be cancelled, taking into account all the relevant information.

   This information is relevant because it indicates that:

   ·You breached a condition of your subclass 457 visa, and there are grounds for cancelling your visa under s.116(1)(b) of the Migration Act

   §There are circumstances which may indicate that your Subclass 457 visa should be cancelled including that:

   §  Your Subclass 457 visa was granted to you for the purpose of undertaking particular employment with an approved sponsor and that purpose ceased when you stopped being employed by your sponsor.

   §  You have not secured a new approved sponsor, because no new business nomination has been approved for you.

   If we rely on this information in making or decision, we may:

   ·Determine that you breached your visa condition and therefore are there are grounds to cancel your Subclass 457 visa under s.116(1)(b) of the Migration Act.

   ·Decide that your visa should be cancelled.

   You are invited to give comments on or respond to the above information in writing.

   If we determine that there are grounds to cancel your Subclass 457 visa, it will go on to consider if your visa should be cancelled.  In making this assessment, the Tribunal will consider all relevant information, which may include, but is not limited to:

   o    The purpose of your travel to and stay in Australia

   o    The degree of hardship that may be caused by visa cancellation

   o    The circumstances in which the ground for cancellation arose

   o    Your past and present conduct towards the department

   o    Australia’s obligations under international agreements

   o    The impact of cancellation on any victims of family violence

   o    Any other relevant matters.

   Applicant’s Response

6. In response the applicant provided a statement and supporting documents.  He relevantly states:

   The circumstances in which the ground for cancellation arose

   1) I was granted the s/c457 visa on 14 December 2016.

   2) The 90 days to commence work would have been 13 March 2017.

   3) After the grant of my visa, my employer started making demands for ‘pay for visa’.

   4) I had never agreed to this when the visa was lodged.

   5) The employer demanded $50,000 in return of the grant of visa and if I was to be given a chance to start work.

   6) He threatened me that he would withdraw the nomination if I did not pay.

   7) In my vulnerable situation, I agreed to pay him the money but in part payments, as I could not afford the whole amount.

   8) This was not acceptable to him.

   9) In this time, I suddenly had to travel overseas on an urgent family matter.

   10) Knowing that I still had time (90 days) to commence employment, I met the employer to tell him of my departure and I left for India.

   11) Due to my remote location in India, I was not contactable by phone.  My employer was aware about this.

   12) On 15 February 2017, the employer emailed me that me as follows;

   “After so many days of unsuccessful attempts to get in touch with you, I am hereby informing you that I will be sending you resignation to Department of Immigration by cob today” ……

   13) Please note that I had not resigned at this time;

   14) I immediately contacted the employer by WhatsApp and email.

   15) My communication with the employer from 15 February 2017, when I was due to return to Australia, via WhatsApp (including translation) and email are attached.

   16) He repeatedly agreed and then denied me meeting with him - although I was willing to commence work and also to pay him, if required.

   17) On 1 March 2017 after knowing that I could not pay him in full and whilst still communicating with me, he informed the Department by email of my non-cessation of employment and that I was “no longer required”.

   18) It should be noted here that I had not resigned and the position wasn’t made redundant and I wasn’t retrenched, via a formal process as per the Fair Work legislation (See Attachment 4).

   19) However, he kept communicating with me until 8/3/2017 on WhatsApp, now forcing me to buy the restaurant for an inflated price, in order to save the cancellation of my visa.

   20) I could not afford to buy the restaurant.

   21) However, I visited the workplace frequently (2 to 3 times a weeks) from thereon to commence work, however, I was not allowed to.

   22) I kept visiting the workplace frequently until 29 September 2017 to convince the employer to let me commence work but it was to no avail. He kept demanding full payment from me of the visa grant and kept indicating to me that I could start once I made the payment.

   23) I received the “Notice of intention to consider cancellation” on 29 September 2017 and told the employer of this.

   24) It is evident from the decision record that the employer rang the Department on 27 October 2017 – stating that I:

   oNever commenced his employment as required

   oDid not respond to repeated attempts to contact him

   oHad no intention to commence his employment as he only wanted to find a means to enter Australia.

   25) My visa was cancelled on 17 November 2017.

   From the above, the following are evident:

   1) My employment contract commenced on the day of the grant of the visa – 14 December 2016.

   2) I was indeed available to commence work within the 90 days – from 17 February 2017 – and I had informed the employer of my availability to commence via WhatsApp and email;

   3) I was refused to commence work for non-payment of monies that wasn’t agreed upon when my visa was lodged;

   4) The employer has lied that he could not contact me;

   5) I have never resigned from the position nor the position was ever made formally redundant and I wasn’t retrenched;

   6) I attended the workplace frequently to commence work but was refused as I had not paid the employer for the visa;

   7) The employer kept me engaged in liaison to commence work if I paid - until 29 September 2017;

   8) Only after he was convinced that I could not pay and after knowing that I had received the “Notice of intention to consider cancellation”, did he eventually confirm via a phone call to Department (on 27 October 2017) of my non-cessation of work due to which my visa was cancelled.

   As such, the following is submitted for consideration:

   1) I had a valid contract with the employer with the proviso that I commence within 90 days of the grant of visa;

   2) The contract does not state that I am “required to start work asap” as stated in the employer’s email to me dated 15 February 2017;

   3) My availability to commence work was within 90 days of the grant of the visa and I had informed the employer that I could commence on 17 February 2017;

   4) Further, I was never retrenched due to my position being made redundant;

   5) The employer’s statement that he could not contact me is untrue, given the evidence of the WhatsApp chat and email;

   6) The employer kept me engaged until 29 September 2017 - until I told him that I had received the “Notice of intention to consider cancellation” – giving me expectation that I could commence work – subject to making the payment;

   7) Given that I attended the workplace frequently to commence work is evidence that I was employed (in law) but “stood down” as I was not being given work or being paid;

   8) As such I submit that I was illegally “stood down (without pay)” from my position from 17 February 2017 for not being able to pay for the visa grant;

   9) If it is considered that I was (technically) employed (but illegally stood down – without pay) from 17 February 2017 (when I first communicated with the employer on WhatsApp and email) to 29 September 2017 (when the “Notice of intention to consider cancellation” was received and the day I visited the employer last to tell him so).  And given my visa was cancelled on 17 November 2017, my period of unemployment was from 30 September 2017 to 16 November 2017 – which is less than 90 days.

   10) As such, if the whole scenario of me being unable to commence work is taken into consideration, I have not breached the conditions of my visa.

   The purpose of your travel to and stay in Australia

   I entered Australia in September 2013 on a student visa.  After completing a Cert IV and Diploma of Business, I was offered employment by this employer on a s/c 457 visa, which I accepted.

   It is my intention to gain experience as a Restaurant Manager and to return to India to pursue a career there.

   The degree of hardship that may be caused by visa cancellation

   Although I have completed my studies in Australia, I have not been able to apply this knowledge due to the following reasons:

   1) Employer not providing work and pay (illegally standing me down) – despite my availability and presence in the workplace;

   2) Unable to work for another employer – due to visa conditions;

   3) Unable to look for alternative job – given the expectation that I could start work if I paid the money for the visa grant.

   Accordingly, I will not be able to source suitable work, if I have to return to India – given India’s high unemployment and a competitive job market.

   Both my parents have passed away and my only brother and sister in India have their own families and cannot support me.

   My return to India, at this stage, will cause me tremendous emotional and financial hardships. On the other hand, if I am able to get the cancellation set aside, I will be able to apply (within 28 days) for another work visa to gain experience and then return to India. To this end, I have an offer from a potential employer.

   Your past and present behaviour towards the Department

   I have never been sighted for any breach of visa in past and have always abided by the conditions of my visas.

   My agreeance to pay the employer, in this instance, was because I was being coerced to do so with the threat that the employer would have my visa cancelled. However, I have never paid him any money to date. From the account above and the evidence provided, it is clear that my inability to pay the employer for the visa - has led to the cancellation of my visa.

   Australia’s obligations under International agreements

   No applicable

   The impact of cancellation on any victims of family violence

   No applicable

   Any other revenant matters

   Not applicable

7. The applicant also relevantly provided:

   ·     A translation of messages from Whatsapp starting on 20 February 2017 and ending on 3 March 2017;

   ·     Three pages of what purport to be messages between the applicant and the sponsor commencing 15 February 2107.

   ·     A copy of the sponsor’s advice to the department dated 1 March 2017 advising it that the applicant had never started work since the visa grant and was no longer required.  This correspondence was forwarded to the applicant on 3 March 2017.

   ·     A copy of emails exchanged between the applicant and the sponsor.  In the first, dated 15 February 2017, the sponsor writes to the applicant:

   After so many days of unsuccessful attempts to get in touch with you, I am hereby informing you that I will be sending your resignation to Department of Immigration by COB today.  In your job offer letter it was clearly mentioned that you are required to start work asap, but there has been no intention shown by you towards the job offered to you.  I am really sorry, but I have no other option as I need someone for this job asap.

   ·     In response on the same day, 15 February 2017, the applicant responds:

   Hello Metish actually I am in India i am comeback today I can start job by 17 of this month if you are agree I can start early as we discuss on that day.

   ·    A copy of a letter dated 1 October 2018 from Mr Ganandeep Sidhu, Director, Collie Crown Hotel who states that he has recently interviewed the applicant for the position of Restaurant Manager and he was assessed as being the most suitable applicant for the position.  Mr Sidhu states that Collie Crown Hotel is happy to sponsor/nominate the applicant on a work visa for the occupation of Restaurant Manager subject to his eligibility.

   ·    A copy of the applicant’s ‘Offer of Employment’ with Vividh Indian Restaurant dated 16 May 2016.  It is signed and dated by the applicant 16 May 2018.  Relevantly it notes that the commencement date is “upon 457 grant”.

   ·     A print out from the Fair Work Ombudsman about redundancy.

8. The applicant appeared before the Tribunal on 13 November 2018 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Amandeep Singh, the applicant’s cousin and Mr Ganandeep Vividh, the applicant’s proposed sponsor.

9. The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

10. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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(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?

12. 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 was attached to the applicant’s visa. Condition 8107(3)(aa)(ii) relevantly requires that ‘if the holder was in Australia when the visa was granted – commence work within 90 days after the holder’s visa was granted.

13. On the basis of the information before it the Tribunal finds that the applicant was granted a subclass 457 visa on 14 December 2017 to occupy the nominated position of Café or Restaurant Manager’ at Astha Group Pry Ltd.

14. The applicant agreed his visa was granted on 14 December 2016 and cancelled on 17 November 2017 and that he did not commence work on the 457 within 90 days as required.  The Tribunal noted that he had provided a copy of his Contract of Employment which clearly stated that he was expected to commence work as soon as his 457 visa had been granted and that the Tribunal therefore assumed that this was the expectation of the employer; that he would commence work on or very soon after,14 December 2016.

15. During the hearing the applicant said he had never worked for the sponsor, Astha Group Pty Ltd.  He got the job after applying for the position of Café or Restaurant Manager which was advertised on the website Job Career.  He applied online by sending his resume.  He was interviewed and offered the position because he had experience with Dominos as a store manager.  The nomination was approved and his associated visa was granted on 14 December 2016, about 6 months later.

16. The applicant said he had a call from the manager on the afternoon of the day his visa was approved, that is 17 November 2017 and he asked to see him the next day.  During that meeting the applicant asked when he could start work and that he could start straightaway.  He sponsor informed him that would be good but that he could not take holidays for 12 months.  The applicant said he needed to go to India to attend to some family issues so the manager told him to go to India and then he could start work.  He told him he could take a 2 week break before starting and told him to come back on 17 December.   He went back then and was told the business was not performing well and that he could not pay him much at that time and his pay would be too high and he could start another month later. The agreed salary was $60,000.  He always called him on Whatsapp; never on the phone.  The applicant went to see him again on 31 December and was told he could start but would have to help his employer financially.  The applicant said he asked the employer to explain what he meant and employer said he was not asking him for money but that since he had received a 457 visa through his company he could pay him some money for it and he asked him for $35,000 at that meeting on 31 December 2016.  This was never put in writing.  The applicant said he had never been told this would be a requirement before and clarified that he had not paid for any of the costs involved in getting the visa.  At that time the applicant agreed to pay him $35,000 and said he would have a look at how he could do it; maybe he could borrow some money from someone.  The employer said okay, think about it and let me know as soon as possible.  The applicant then went to his cousin and they discussed the situation with the request for money.  His cousin, who has permanent residency, had done a degree in accounting.  His cousin advised him that it was illegal here and that he could not pay for a visa.  Asked if he reported this request for money to the department the applicant said no, because he was afraid.  He went back to the employer on 2 January 2017 and told the employer he did not want to pay the money because everyone told him it was illegal.  His employer said okay, relax, you can go to India and after he returns his business might become more profitable.  The applicant went to India on 6 January 2017.  On 15 February 2017, when he was returning to Australia, he tried to call the employer but he did not always communicate with him.  His employer told him he had tried to contact the applicant but he had not been able to.  He never called him on the mobile; he only went through the Whatsapp message system and said he had never mentioned money.  On 15 February 2017 the employer told him, via emai,l that he did not need him.  The same day the applicant sent the employer an email and said he was ready to start work.

1. Asked if he had any evidence in writing that the employer had asked for money; he said no, he has nothing in writing about the demand for money.  The Tribunal noted that it would be unusual for an employer to incur the costs of both the nomination and the 457 visa if he did not require his services.  The Tribunal then discussed the copies of the Whatsapp messages he had provided to the Tribunal and noted that the only person who talked about paying money was the applicant who offered to buy the restaurant and continually asked the employer about attempting to buy the restaurant.  Indeed, there is even a message about a meeting they held to buy the restaurant so that his visa could continue.  The applicant said employer constantly lied to him because he kept telling him he was going to shut the restaurant but it is still operating now.  The Tribunal commented that the Whatsapp messages appear to suggest that the employer was quite clear that he no longer required his services and it was the applicant who was constantly asking him about how much he wanted to buy the restaurant so that his visa could continue.  The applicant said that although his employer had sent a letter to the department he told him if he paid the money, he could always change this.

2. The Tribunal asked the applicant why it took him three months to be ready to commence his employment after his 457 was granted.  The applicant said that he had already resigned from his previous position and was keen to start and waited for 30 days to be able to start before he went India.  The employer would not let him start work.

3. The applicant he has been working as a store manager at Dominos, supervising up to 25 staff, since he received his work rights on his bridging visa.  He has been offered another position with Collie on Crown but they have not yet lodged a nomination.  They estimate they will be able to do so within three weeks after they fulfil the 10 working days advertisement period required.  He said he is already working with the company because he works at Dominoes which is owned but by the same company. 

4. The Tribunal took oral evidence from Mr Gagandeep Sidhu from Collie on Crown by telephone.  Mr Sidhu is a Director of SGS WA SERVICES PTY LTD.  Mr Sidhu confirmed the contents of the letter that was provided to the Tribunal that he had interviewed the applicant for the position of Restaurant Manager and he had demonstrated a high level of relevant skills and was therefore assessed as the most suitable applicant for the position.  Collie on Crown is willing to sponsor the applicant on a work visa for the occupation of Restaurant Manager.  He gave evidence that he knows the process because he had another 457 employee working for him and plans to sponsor him for a temporary visa for either 2 or 4 years.  The applicant is known to him due to his management of his Dominos franchises in Myaree and Karawara.  He has no hesitation in offering employment to him; he is a good worker.  They have been looking for a Restaurant Manager for some time.

5. The applicant said that on 5 September 2017 a new nomination was lodged in respect of him by Chez Duex Pty Ltd.  This was refused.

6. By way of background the applicant explained that he arrived in Australia on 18 September 2013 and then completed a 20 week ELICOS course.  He then commenced a Certificate IV in Business which ran for six months followed by a Diploma of Business Management.  He completed both of these at a TAFE college.  Following this he commenced an Associated Degree in Business but did not complete this.  He finished his study in November 2015.  He got his first job at Dominoes in the suburb of Myaree in November 2013.  He was offered a job at the Vividh Indian restaurant in July 2016.  In the period between stopping his Associated Degree in Business and being offered the job he suffered an injury to his leg (which was covered in the press) when someone put a butcher’s knife to his leg.

7. The applicant reiterated that he did not report the request for money from his employer to the department because he was scared.  He recognises now that this is what he should have done.

8. The applicant’s cousin Mr Anandeep Singh gave evidence that he was present at the meeting with the applicant and his employer which took place on 7 March 2017.  The object of the meeting was to try to work out the situation between the applicant and the employer and he went to the meeting with a positive attitude.  The employer said he was planning to sell the business because it was not profitable and kept saying said “Rajbeer knows my demand”.  The employer said he was planning to sell the restaurant for $70,000 and later the price went to $90,000.  He told the employer that the applicant did not have the capacity and skills to take over the business and he did not have the money to do so.  He advised the applicant that all he would be doing is buying a debt and experience and that with this kind of money he could buy a business back in India.  He was trying to calm the situation between them to try to get his cousin his job back.  At the time of this meeting he did not know that the employer had sent a letter to immigration on 15 February 2017.

9. After the hearing the applicant provided a complete chronology of his studies and work experience including when the nominations were lodged and information about the lodgement of the new nomination by Crown Hotel Collie.

10. As it is without contention that the applicant’s visa was granted on 14 December 2016 and, despite various reasons for not doing so, he did not commence work on his approved 457 visa within 90 days as required, 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

11. 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 purpose of the applicant’s travel to and stay in Australia

12. The applicant gave evidence that he originally came to Australia to study and gain experience and then go back to India.  He is now aged 27.  He said he wants to gain experience here and does not want to stay here permanently.  He might start a business in India.  Both his parents are deceased and his brother lives in India and his sister lives in Canada.  He is not married and has no children.

13. As explained to the applicant at the hearing, a 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that the applicant would be able to remain in Australia on a permanent basis.  The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time as a Café or Restaurant Manager for Astha Group Pty Ltd (Vividh Indian Restaurant).  While this purpose no longer exists the applicant’s evidence to the Tribunal was that Crown Collie Hotel has offered him employment on an ongoing business as a Restaurant Manager.  This position is located in regional Western Australia.  The Tribunal spoke to the director of this company, Mr Ganandeep Sidhu who confirmed this offer is genuine.  Following the hearing a nomination was lodged with the Department however this was refused on the basis that labour market testing had not been provided.  A further nomination was lodged on 8 February 2019.  It remains undetermined at the Department.

14. Given this evidence and placing significant weight on the written and oral evidence of Mr Ganandeep Sidhu that the company wants to employ the applicant, the Tribunal is of the view that the applicant’s purpose of travel to and stay in Australia is still a valid one.

    The degree of hardship that may be caused by visa cancellation

15. The applicant said he will suffer hardship if he has to return to India now as he does not have experience and needs more.  He said it will also difficult for him having a cancellation on his record.  While the Tribunal accepts this may be true, it is a natural consequence of any visa cancellation and therefore the Tribunal gives this factor little weight.

    The circumstances in which the ground for cancellation arose

16. The applicant has not complied with condition 8107(3)(aa)(ii) ’if the holder was in Australia when the visa was granted – commence work within 90 days after the holder’s visa was granted’.

17. The applicant did not advise the Department that his proposed sponsor had asked him for money in return for him being able to commence employment.  Although he said he feared doing so, it was open to the applicant to report the conduct of the employer to the department in a confidential manner if he so desired and the Tribunal maintains significant concerns that he did not so.  The Tribunal has therefore given this some weight which mitigates against the applicant despite him responding to the NOCCI within time.

    The applicant’s past and present behaviour towards the Department

18. There is no information before the Tribunal to suggest that the applicant has not complied with her visa conditions.  Relevantly, the primary decision records:

    There is no information before me which indicate any specific matters of relevance regarding [the applicant’s] behaviour towards the department.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

19. The applicant’s visa was cancelled on 17 November 2017 and he now holds a Bridging visa E.  There is no evidence before the Tribunal that cancellation would result in him being subject to detention, or that indefinite detention is a possible consequence of cancellation.

    Whether any international obligations would be breached as a result of the cancellation

20. There is no evidence before the Tribunal regarding this matter.  The Tribunal asked the applicant if he holds any fears for his safety or security should he have to return to India.  He said no.  Therefore the Tribunal places no weight on this factor.

    Degree of hardship and consequential cancellations under s.140

21. There are no consequential cancellations under s.140.

22. In summary, the Tribunal accepts that the applicant’s new proposed sponsor, SGS Services Pty Ltd (trading as Crown Hotel Collie) has a need for the applicant’s skills in its Australian operations, as evidenced by its nomination application lodged in respect of him and that it is already a standard business sponsor.  The company owner and director, Mr Ganandeep Sidhu gave evidence at the hearing about the applicant’s relevant experience and value to the business.  Based on this, the Tribunal’s view that is SGS Services Pty Ltd, a regionally based business, has a genuine need for the applicant’s skills in its workforce.  The Tribunal notes that the applicant’s re-employment will be consequential upon the department’s decision in relation to the lodged nomination and his subsequent visa application.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Karen Synon
    Member