Singh (Migration)

Singh (Migration) [2019] AATA 407 (13 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ravinder Singh
CASE NUMBER:  1724631
HOME AFFAIRS REFERENCE(S):           BCC2017/2780611
MEMBER:Antonio Dronjic
DATE:13 February 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 February 2019 at 3:53pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment more than 90 days – position of cook – sponsor’s business changed hands – work rights removed from bridging visa – new employer to lodge sponsorship and nomination applications – visa would already have ceased – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 363
Migration Regulations 1994, Condition 8107; r 2.12
CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 3 October 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 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.
Background to the cancellation of the applicant’s visa
The decision record of 3 October 2017 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:
·On 17 April 2014, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 17 April 2018;
·The standard business sponsor who most recently nominated the applicant to work as a cook was Alpine Hotel Bright Pty Ltd ATF Vico Unit Trust (the sponsor);
·On 23 April 2017 the applicant ceased his employment with the sponsoring business;
·A notice of intention to consider cancellation (NOICC) was issued on 13 September 2017;
·Despite being granted an extension of time to respond to the NOICC until 27 September 2017, the Department received no response from the applicant;
·On 3 October 2017, the delegate proceeded to cancel the applicant’s visa.
The applicant applied to the Tribunal on 10 October 2017 for review of the visa cancellation and with his application submitted a copy of the primary decision record.
On 26 November 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 12 February 2019.
On 5 February 2019, the applicant’s representative wrote to the Tribunal advising that the applicant ‘has an employer with an SBS approval in place currently undertaking labour market testing as a precursor to that employer filing a nomination application which we will ask the Tribunal to have regard to in the consideration of this matter’. The representative further advised that:
The applicant is set down for a Court Hearing of one week, commencing 19 February 2019, in relation to criminal charges as listed to which he has plead not guilty. We have requested the provision of the actual Court date details and will provide these as they come to hand. Given the distressing nature of this upcoming trial and the consequences this has for the applicant’s future employment prospects and residence prospects we ask that this matter be adjourned until Mr Singh’s criminal matter is determined.
The representative attached the following documents to his letter:
·A copy of an advertisement placed on Seek by Dr Mauve Bar and Lounge dated 24 January 2019 as evidence that this business is seeking to employ full time chefs or cooks; and
·A copy of the undertaking of bail for attendance at trial as evidence that the applicant was charged with serious indictable offences and directed to be tried.
The applicant’s representative requested that the matter be adjourned until the applicant is in possession of an approved nomination relevant to his nominated occupation so as to assist with the Tribunal’s consideration of the application.
On 6 February 2019, the Tribunal wrote to the applicant’s representative informing him that the presiding Member considered the request for adjournment and decided not to grant it. The applicant was informed that the hearing will proceed as scheduled.
On 11 February 2019, the applicant’s representative wrote to the Tribunal submitting, inter alia, that:
The applicant’s arrest date, relevant to his upcoming trial, was on the 23 June 2017 and the issues associated with this arrest and subsequent charges were such that they prevented him being able to secure a new nomination prior to the cancellation of his 457 visa.
Mr Singh requests that the Tribunal defer any decision on his matter until after his criminal trial has been determined and until after the Sponsorship and Nomination applications to be submitted by Dr Mauve have been finalised.
If it remains the desire of the Tribunal to proceed to Hearing tomorrow Mr Singh requests that in accordance with MIAC v Li that his matter not be determined until the sponsorships and nominations referred to previously have been determined by the Department of Immigration and Home Affairs.
The representative attached the following documents to his submissions:
·Copy of the applicant’s academic qualifications as evidence that he has the required skills relevant to his occupation of a cook;
·Copy of a letter from Mr Tom Buckley, the director of Dr Mauve Bar and Lounge, the applicant’s prospective employer, stating that the business has been advertising for a position of a cook, that the applicant applied for the position, that the business will have to receive SBS approval, which the business intends to do as soon as the labour market testing is completed and stating that the applicant possesses all skills and experience required for the position;
·Copy of a work reference letter from the Alpine Hotel dated 13 August 2018;
·Copy of the Employment Agreement between the applicant and the Alpine Hotel dated 14 January 2016;
·Copy of a work reference letter from Rhino Bell Pty Ltd dated 15 June 2015;
·Copy of a work reference letter from Mr Daniel Clerici, the director of Fringe Café, dated 12 December 2012, as evidence that the applicant was employed at this business as a cook from March 2009 to December 2012;
·Copy of a work reference letter from Imperial Rhino café bar and restaurant dated 15 August 2018;
·Copy of the Employment Agreement between the applicant and Imperial Rhino café bar and restaurant signed on 16 November 2013; and
·Copy of the skills assessment outcome dated 5 November 2018, as evidence that the applicant was successful with his skills assessment application for the occupation of a cook.
On 11 February 2019, the Tribunal wrote to the applicant’s representative informing him that the presiding Member has considered the request for a hearing adjournment and has decided not to grant it. The applicant was informed that the Tribunal will not await the outcome of the applicant's criminal proceedings nor will it defer making the decision in this matter until the sponsorship and nomination applications are finalized.
The applicant appeared before the Tribunal on 12 February 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.
The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8107, to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.
The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
The applicant is 33 years of age and a national of India. His sister and parents live in India and he does not have any relatives in Australia. Prior to arriving in Australia as the holder of a Student visa in December 2007, he completed the equivalent of year 12 in India. He was also enrolled into Bachelor of Accounting degree but gave up his studies after 12 months. He never worked in India and was living with his parents.
In Australia, he completed a Certificate III in commercial cookery in December 2009. He was granted a Subclass 457 visa while off shore based on the sponsorship and nomination made by an Australian business, Imperial Rhino Café, located in Torquay, Victoria. The applicant gave evidence that he received a visa grant letter from the Department and that he read and understood the conditions imposed on his visa.
He commenced full time employment as a cook at Imperial Rhino Café in April 2014. As he was not given sufficient hours of work, he decided to cease employment at Imperial Rhino Café in September 2015.
He secured new employment at the Alpine Hotel in Bright, Victoria. This business sponsored and nominated the applicant for the same position (cook). The applicant commenced employment at this business in January 2016. He ceased employment in April 2017 because the business was sold to a different owner and he was mistreated by the head chef.
The applicant gave evidence that he has not been working in Australia since April 2017. He stated that, after his Subclass 457 visa was cancelled in October 2017, he was granted a bridging visa ‘E’ with no work rights. He further stated that in June or July 2018, he applied to the Department to have the ‘no work’ condition removed from his bridging visa and that his application was rejected by the Department. He stated that this was the reason for not working in Australia after his visa was cancelled.
I enquired as to how he was able to support his stay in Australia since April 2017 considering his claim that he did not work. He stated that he had approximately $5,000 in savings, that he received a tax return of $3,000 to $4,000, that his aunty delivered him $5,000 in cash sent by his mother and that he borrowed approximately $5,000 from his friends in Australia.
I explained to the applicant that, based on the evidence before me, I am satisfied that he breached condition 8107 that was imposed on his Subclass 457 visa and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances which may include matters of government policy, as set out in the departmental guidelines. I explained these guidelines to the applicant. The applicant conceded that he breached the condition imposed on his visa.
I indicated that I will take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application. I asked the applicant if there is anything else that he wants to raise with the Tribunal.
The applicant stated that he deserves another chance because he is a skilled worker and loves his job.
Adjournment requests
The applicant stated that in June 2017 he was charged with serious criminal offences. After giving the applicant a warning about self-incrimination, I explained that any criminal charges are a matter for the Magistrate Court and that the Tribunal is not prepared to adjourn the review and wait for the outcome of criminal proceedings. The applicant’s visa was cancelled on the basis he breached condition 8107(3)(b) as the period during which he ceased employment exceeded 90 consecutive days and not on any other ground as set out in s.116(1) of the Act.
The applicant’s representative submitted that the applicant was charged some 60 days after ceasing employment at the Alpine Hotel and that was one of the reasons why he was unable to find alternate employment in Australia within 90 days.
I noted that he provided a letter from his prospective employer, Dr Mauve Bar and Lounge and enquired whether the business had lodged sponsorship and nomination applications with the Department. The applicant stated that the business is currently undertaking labour market testing and upon completion of this process the business will lodge sponsorship and nomination applications for a Subclass 482 visa.
I noted the applicant’s request that the Tribunal adjourns making its decision until the Department makes decisions on sponsorship and nomination applications yet to be lodged by his new prospective employer. The Tribunal considered whether, in the circumstances of this case, the applicant had a fair opportunity to secure sponsorship and nomination by a prospective employer, whether the outcome of these applications would be relevant for the current review, and the significance of the Tribunal’s decision not to adjourn the review for the applicant.
I explained that the Tribunal is reviewing a decision made by the Department to cancel his Subclass 457 visa which would, but for the cancellation, have ceased on 17 April 2018 in any case. Accordingly, the outcome of any potential sponsorship and nomination application for a different visa subclass would not make it possible to reinstate his Subclass 457 visa. In addition, it is uncertain if and when the new prospective employer will lodge the sponsorship and nomination applications with the Department as well as what will be the outcome of these applications.
The applicant ceased employment at the sponsoring business on 23 April 2017. The Department did not proceed with the cancellation of his visa until 3 October 2017. The applicant had more than five months to find an alternate employer that was willing to sponsor and nominate him for the position at their business.
I further explained that the applicant is not prevented by Public Interest Criterion (PIC) 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.
Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review and wait for the outcome of criminal proceedings or for the outcome of a potential sponsorship and nomination application yet to be lodged by the applicant’s new prospective employer.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 90 consecutive days.
In this instance condition 8107 was attached to the applicant’s visa, which was granted on 17 April 2014, and which, but for its cancellation, was valid to 17 April 2018.
Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at Alpine Hotel on 23 April 2017. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the Tribunal finds that the review applicant did not comply with condition 8107(3)(b).
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
There are no matters specified in the Act or Migration Regulations 1994 (the Regulations) that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3), ‘General visa cancellation powers’.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] 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.[2]
[1] See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]
Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.
The purpose of the visa holder’s travel to and stay in Australia
The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.
The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a cook on a temporary basis. The applicant ceased his employment on 23 April 2017 because the sponsoring business was sold to a different owner and he was mistreated by the head chef. The applicant decided to remain in Australia and from April 2017 to the present time did not work in Australia.

I accept that the applicant was prevented from working in Australia by the condition imposed on his bridging visa ‘E’. However, I note that the applicant only applied on one occasion to the Department to have the ‘no work’ condition removed from his bridging visa.
I also accept the applicant’s evidence that, some 60 days after ceasing employment at the Alpine Hotel, he was charged with serious criminal offences and that these events impacted the applicant’s ability to search for a new employer.
However, I find that, as of the day of my decision, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business. Based on the evidence before me, I find that the applicant’s visa, but for the cancellation, would have ceased on 17 April 2018 in any case.
As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor on 23 April 2017. I give significant weight to this consideration.
The reason for and extent of the breach
The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 23 April 2017. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant did not work in Australia from 23 April 2017 to the present time. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after more than 20 months since the original cessation of employment represents a significant breach of condition 8107.
Circumstances in which ground of cancellation arose
The applicant ceased employment at the sponsoring business on 23 April 2017. The Department did not proceed with the visa cancellation until 3 October 2017. I am satisfied on the evidence before me that the Department afforded the applicant sufficient time to secure employment in Australia with an alternative business sponsor.
Past and present conduct of the visa holder towards the Department
There is no evidence before me that the applicant previously breached visa conditions or that he was not co-operative with the Department.
Degree of hardship that may be caused to the applicant
Apart from stating that he deserves another chance because he is a skilled worker and loves his job, the applicant did not raise any specific claims that the visa cancellation would cause him hardship.
I have taken into consideration the applicant’s evidence that his parents and sister live in India and that he does not have any relatives in Australia. I am satisfied that the applicant would be able to re-establish himself in India, given his education and work experience obtained in Australia.
Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently.
The Subclass 457 visa would have ceased on 17 April 2018 in any event. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.
In any event, the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would
result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the
Act which prevent the person from making a valid visa application without the Minister’s
intervention
The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.
Whether there would be consequential cancellations under s.140
There are no consequential cancellations.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.
The impact on any victims of family violence
There is no evidence before the Tribunal regarding this matter.
Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Antonio Dronjic
Member

[2019] AATA 407

13 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice