SINGH (Migration)

[2018] AATA 5678

SINGH (Migration) [2018] AATA 5678 (5 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr AVTAR SINGH
Mrs KAWALJEET KAUR

CASE NUMBER:  1621073

HOME AFFAIRS REFERENCE(S):           BCC2016/2051661

MEMBER:Bridget Cullen

DATE:5 November 2018

PLACE OF DECISION:  Brisbane

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 05 November 2018 at 4:12pm

CATCHWORDS
MIGRATION – cancellation – Temporary Work (Skilled) visa – Subclass 457 – applicant ceased to work in nominated occupation – period relevant employment ceased exceeded 90 days – no new nomination approved – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 348, 359
Migration Regulations 1994, r 2.43, 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 5 December 2016 made by a delegate of the Minister for Immigration and Border Protection 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) 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 applicants appeared before the Tribunal on 26 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Awadesh Kumar Benapuria, the Director of the applicant’s new employer, and prospective sponsor, AK & Eshaan Pty Ltd.  

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. 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?

8. 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.

9. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8107(3) of his Subclass 457 visa because the applicant ceased to work in his nominated occupation in his most recently approved nomination. The delegate noted that the standard business sponsor who nominated the applicant in his most recently approved nomination for the visa was ND Stores Pty Ltd ATF ND Stores Unit Trust (ABN 60 155 482 980). The applicant was granted the Subclass 457 visa on 15 April 2013. The Department received a letter attached to an email dated 18 February 2016 from the sponsor that indicated that the applicant ceased work with the sponsoring business on 24 January 2016.

10. The delegate concluded that the applicant was in breach of condition 8107(3)(b) after finding that the applicant ceased employment with the sponsoring business and that the period during which the holder ceased employment exceeded 90 consecutive days. 

11. The Tribunal has had regard to the Departmental file, which indicates that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 22 June 2016. The NOICC indicated that the applicant had ceased working for his sponsoring employer effective 24 January 2016 and consequently he was in breach of condition 8107 attached to his Subclass 457 visa.

12. The applicant was invited to respond to the NOICC. The applicant was invited to provide evidence to the Department as to whether or not he agreed that the ground for cancellation existed and whether or not his visa should be cancelled.

13. The Department of Immigration proceeded to cancel the applicant's subclass 457 visa in a decision made on 5 December 2016. The delegate in the decision record noted that the ground for cancellation appeared to exist on the basis that the applicant had ceased employment with his sponsoring employer ND Stores Pty Ltd ATF ND Stores Unit Trust with effect from 30 June 2016 and that the period during which the applicant ceased employment exceeded 90 consecutive days. The delegate considered that the 90 consecutive day timeframe ceased on 1 October 2016 and that there has been a new nomination approved for the visa holder within the subclass 457 visa program. The delegate concluded the reasons for not cancelling the visa were not outweighed by the grounds for cancelling the visa.

14. The applicant made an application for merits review with the Tribunal on 9 December 2016. The applicant annexed a copy of the Departmental cancellation decision to the application for review.

15. The applicant asserts that he only came to know of his termination from his sponsor after he received the NOICC from the Department.  The applicant provided payslips from the sponsor, with a date range from 18 April 2016 until 22 May 2016, and bank statements from Westpac that reveal salary payments by the sponsor until 16 June 2016.  The delegate accepted that the evidence demonstrated the applicant did work for the sponsor beyond 24 January 2016, but nevertheless, had exceeded the 90 consecutive day timeframe.

16. The applicant asserted, in pre-hearing, hearing, and post-hearing submissions that the Department, and Tribunal, should not take into account Departmental processing times for sponsorship and nomination applications.  The reason for this is that the processing times are outside of the applicant’s control, and if counted, would make it difficult for the applicant to find employment with another approved sponsor during the 90 consecutive day timeframe.  The applicant argued that he did not breach 2.43

17. 8107, as he located a new sponsor within 90 days after the cessation of his employment.

18. The applicant’s nomination history was discussed with him during the hearing, and also put to him by way of a 359A and 359(2) Invitation to Comment post-hearing.  The history is as follows:

    ·On 25 June 2016, AK & Eshaan Pty Ltd lodged a 457 nomination application naming the applicant.  That application was finalised by the Department on 1 December 2016 for the reason that the sponsorship agreement by AK & Eshaan Pty Ltd was refused, prior to the Department’s cancellation decision.

    ·On 12 December 2016 (after the Department’s cancellation decision), AK & Eshaan Pty Ltd lodged a further 457 nomination application in favour of the applicant. That application was finalised by the Department on 27 June 2017 for the reason that the sponsorship agreement by AK & Eshaan Pty Ltd was refused by the Department.

    ·AK & Eshaan Pty Ltd has, post-Tribunal hearing, lodged a nomination to sponsor the applicant for a subclass 482 visa (the subclass 457 program has been discontinued).  That nomination application was lodged with the Department on 3 May 2018, and is pending before the Department.

    ·On 22 June 2018, the Department of Home Affairs refused a Direct Entry RSMS subclass 187 nomination of the applicant, by AK & Eshaan Pty Ltd.  An application for review of the Department’s refusal was lodged in the Tribunal on 6 July 2018. 

19. On 29 August 2018, the Tribunal invited the applicant to comment on the information before the Tribunal that the Department refused the nomination of the applicant by AK & Eshaan Pty Ltd on 22 June 2018.  The letter indicated that the information was relevant to the review because it may indicate that the applicant has not complied with Visa Condition 8107(3)(b). The letter further indicated that if the Tribunal relied on the information in making its decision, the Tribunal may decide that the ground exists, leading to the Tribunal potentially affirming the decision to cancel the Subclass 457 (Temporary Work (Skilled)) visas.

20. In the same letter, the Tribunal invited the applicant to provide the following information in writing:

    That you have an approved nomination in the same occupation that your Subclass 457 (Temporary Work (Skilled)) was granted under.

21. On 12 September 2018, the applicant responded through his migration agent. The applicant responded that the 27 June 2018 refusal by the Department was not relevant, as it related to an application for a subclass 187 RSMS nomination.  The applicant further indicated that the Department had requested further documentation from the applicant in relation to the subclass 482 visa nomination, and provided copies of information relevant to that application.

22. The applicant’s assertions that the processing timeframe of the Department should be taken into account are misconceived.  The purpose of the subclass 457 visa scheme was to facilitate entry for the purposes of allowing persons who had an approved nomination to work for an approved sponsor.  There is no guarantee that subclass 457 visa holders will be entitled to remain in Australia – the visa is a temporary entry visa.  Further, there is no guarantee that locating a prospective sponsor will result in approval of the nomination by the Department.

23. There is no basis upon which the Tribunal could find that the Departmental processing times are excluded from the relevant “90 consecutive day” period.  Condition 8107(3)(b) requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days. 

24. The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 15 April 2013 on the basis of a nomination by ND Stores Pty Ltd ATF ND Stores Unit Trust.  The Tribunal finds that the applicant continued to work for the sponsor until 30 June 2016.

25. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment and has not done so since the cessation of his employment on 30 June 2016. On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the 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

26. 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’.

27. The Tribunal has first considered the purpose of the applicant's travel to and stay in Australia. The evidence before the Tribunal indicates that the purpose of the applicant's travel to and stay in Australia was, originally, to study.  The applicant first arrived in Australia on a class TU subclass 572 Higher Education Sector visa.  On 17 August 2010, he was granted a class TU subclass 572 Vocational Education and Training Sector Visa.  On 15 April 2013, the applicant was granted the class UC subclass 457 Temporary Work (Skilled) visa that is the subject of this decision.  The purpose of that visa was for the applicant to engage in temporary employment for an Australian business ND Stores Pty Ltd ATF ND Stores Unit Trust as a cook from 15 April 2013 until 15 April 2017. The evidence indicates that the applicant worked for the sponsoring employer from April 2013 but that he ceased working for the sponsoring employer by 30 June 2016, and that since that time he has not become the subject of an approved sponsorship/nomination.

28. The purpose of the 457 visa is for an applicant to work on a temporary basis (usually for 4 years) for an approved sponsor in an approved occupation and that since ceasing employment with ND Stores Pty Ltd ATF ND Stores Unit Trust on 30 June 2016, the applicant has not been able to secure another nomination. The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list; and that if an applicant had been unable to secure an approved nomination, then this meant the applicant was not able to fulfil the purpose of the 457 visa. The Tribunal considers that this weighs strongly in favour of cancelling the visa.

29. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted his most recent 457 visa was to work in the occupation of Cook for ND Stores Pty Ltd ATF ND Stores Unit Trust, that purpose ended on 30 June 2016 (based on the applicant’s payslip and banking evidence) when the applicant ceased working for that company. The evidence indicates that the applicant has not been able to find another sponsor. It has now been over 2 years and 4 months since the applicant ceased working for his approved sponsor and to date the applicant has not been able to secure another approved nomination, under the 457 visa programme, or otherwise.

30. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for his approved sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa.

31. The Tribunal has considered the applicant's compliance with visa conditions and is satisfied that other than condition 8107(3)(b), the applicant has complied with visa conditions.

32. The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose 90 days consecutive after the applicant ceased employment with the sponsor as he was unable to secure another nomination within the 90 day period. The Tribunal notes the applicant's assertions that he has made efforts to secure another nomination, but the applicant has not been successful in these efforts.  The Tribunal finds that these circumstances weigh in favour of cancelling the applicant's visa.

33. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. The applicant also has a wife who is a secondary applicant on his 457 visa, and the decision will impact her. The Tribunal notes that had the visa not been cancelled, it would have expired on 15 April 2017.  It is now more than a year and a half past the time that the visa would have expired but for the cancellation.

34. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if he does not continue to hold visas to remain lawfully in Australia or refuses to depart voluntarily. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.

35. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant on the basis of the evidence before it has generally complied with visa conditions. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another approved nomination since ceasing work with the sponsor more than 28 months ago.

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

    DECISION

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

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

    Bridget Cullen
    Member