Singh (Migration)

[2017] AATA 2690

Singh (Migration) [2017] AATA 2690 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mandeep Singh

CASE NUMBER:  1618623

DIBP REFERENCE(S):  BCC2015/3932505 C6ZNC5TN4

MEMBER:Bridget Cullen

DATE:4 December 2017

PLACE OF DECISION:  Brisbane

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 04 December 2017 at 10:52am

CATCHWORDS
Migration – Cancellation – Subclass 457 (Temporary Work (Skilled)) visa – Breach of visa conditions – Ceased employment exceeding 90 consecutive days – First nominated sponsor ceased trading – Transfer of nomination to second nominated sponsor was not approved – Third sponsor approved –  Applicant proactive in seeking employment – Visa cancellation set aside

LEGISLATION
Migration Act 1958 ss 116, 116(1)(b), 116(3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 November 2016 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 the applicant was in breach of condition 8107 imposed on his visa for a period in excess of eleven (11) months. 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 17 November 2017 to give evidence and present arguments.

4. 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

5. 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?

6. 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.

7. This condition requires that if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days.

8. It is not in dispute that the applicant ceased employment and that period has exceeded 90 consecutive days.

9. 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

10. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

11. The applicant gave evidence at the hearing. He arrived in Australia on 1 November 2008, on a Subclass 457 Student Visa.  The Applicant has completed the following courses – Certificate III in Hospitality (18 November 2010); Diploma of Hospitality (8 August 2012); Diploma of Management (17 October 2012); Certificate IV in Business (6 December 2012); and a Certificate IV in Hospitality (30 May 2013).

12. Toward the end of his studies, the applicant sought to be sponsored in the nominated position of cook, on a subclass 457 visa.  On 29 July 2013, the applicant was granted a subclass 457 visa, with the sponsor NMF Pty Ltd trading as Portovinos Italian Restaurant.   He remained working for this sponsor, as a cook, until August of 2015.  The applicant gave evidence that in August of 2015, the sponsor approached him, and said that it wished to transfer him to another restaurant it owned.  The applicant agreed, and a transfer of nomination to the new sponsor, Golden Oak Australia Pty Ltd, was lodged with the Department, and approved on 28 September 2015.

13. The applicant began working for Golden Oak immediately, and continued working with Golden Oak until it ceased trading on 1 December 2015.  The applicant gave evidence, and the Tribunal accepts, that he was only paid wages to his designated bank account by Golden Oak through 11 October 2015.  Thereafter, despite raising the matter with Golden Oak, the applicant was only paid part-payment of his wages in cash.

14. Following Golden Oak ceasing operations, the restaurant was purchased by Waraich and Chhina Pty Ltd, who agreed to sponsor the applicant.  A transfer of nomination to Waraich and Chhina was lodged with the Department on 22 December 2015. 

15. The applicant travelled to India to visit his mother, who was unwell, on 2 March 2016, and returned on 12 April 2016.  On return, the applicant became aware that the transfer of nomination had still not been approved.  He learned at this point in time that Waraich and Chhina had been subject to business monitoring since 6 January 2016.  I accept that the applicant was unaware of the business monitoring until his return to Australia on 12 April 2016.

16. The applicant gave evidence that he then made the decision to look for alternative employment with a new sponsor.  On 25 July 2016, he was offered employment with DS Catering Pty Ltd as trustee for the Darsh Family Trust trading as Sandy’s Bar plus Grill, located in Pacific Pines, Queensland.  Initially, the applicant lodged an application for a Regional Sponsored Migration Scheme subclass 187 visa, and did not advise Waraich and Chhina. 

17. In September 2016, Waraich and Chhina advised the applicant that they no longer wished to sponsor him.  A nomination transfer to Sandy’s Bar plus Grill was lodged with the Department on 5 October 2016, after Sandy’s Bar and Grill agreed to sponsor the applicant on a 457 visa rather than on a subclass 187 visa. 

18. At the time of the delegate’s decision to cancel the applicant’s visa on 3 November 2016, the Department had not yet approved the nomination transfer to Sandy’s Bar and Grill.  However, the nomination transfer has since been approved, on 4 April 2017, and the applicant has been working fulltime in the nominated role of cook.

19. The applicant has provided bank records and payslips from Sandy’s Bar and Grill that demonstrate he is working.  The Tribunal accepts that the purpose of the applicant’s stay in Australia is to work.

20. The Tribunal accepts that the applicant did not know until he returned from India on 12 April 2016 that the transfer of his nomination to Waraich and Chhina was unlikely to be approved, as it was not until this point that the applicant was aware they were being monitored.  The Tribunal accepts that the applicant then took steps to find another employer capable of sponsoring him.

21. The Tribunal accepts that there would be a degree of hardship to the applicant should the visa be cancelled.  The applicant has borrowed money from friends and family during the various periods whilst in Australia when he could not work.  The applicant was left out-of-pocket for unpaid wages when his initial sponsor, Golden Oak, ceased operations.

22. The Tribunal considers it significant that the applicant’s nomination transfer to Sandy’s Bar and Grill has now been approved by the Department, as a factor in favour of not cancelling the visa.  The Tribunal accepts that the applicant was proactive in seeking employment, both upon his employment ceasing with Golden Oak on 1 December 2015, and also upon learning that the nomination transfer to Waraich and Chhina was unlikely to be successful in April of 2016.

23. The Tribunal also considers it significant that the delegate noted that the applicant’s dealings with the Department have been positive.   The Tribunal considers that the applicant gave his evidence to the Tribunal in a straightforward manner.

24. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Bridget Cullen
    Member