Singh (Migration)

[2017] AATA 2486

Singh (Migration) [2017] AATA 2486 (29 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanpreet Singh

CASE NUMBER:  1618584

DIBP REFERENCE(S):  BCC2015/3933037

MEMBER:Saxon Rice

DATE:29 November 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 29 November 2017 at 4:05pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Ceased employment before nominations approval – No independent evidence to support claims – Length of time to secure new nomination – Numerous qualifications and experience

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 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 breached condition 8107 of his visa. 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 23 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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.

   Does the ground for cancellation exist?

7. 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 requires the applicant not cease employment in a nominated occupation for more than 90 consecutive days.

8. The applicant provided the Tribunal with a copy of the delegate’s decision, which indicates that the Department received written notification that the applicant ceased employment with Oak Australia Group Pty Ltd on 1 December 2015. On 20 October 2016 (more than ten months after he ceased employment), the Department issued the applicant with a notice of intention to cancel his visa on this basis. The applicant did not dispute this at the hearing.  As the applicant has ceased employment in a nominated occupation for more than 90 consecutive days, the Tribunal is satisfied that he has not complied with a condition of the visa.

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’, relevantly:

    ·the purpose of the visa holder’s travel to and stay in Australia

    ·if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for and extent of the breach

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

    ·the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

    ·the visa holder’s past and present behaviour towards the department

    ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140

    ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:

    oif there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration

    owhether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment

    ·any other matter the visa holder raises.

11. The applicant told the Tribunal that he first arrived in Australia in 2008 as the holder of a TU 572 student visa. He said he held multiple student visas and told the Tribunal that he completed a Diploma of Management, an Advanced Diploma of Management, a Certificate IV in Small Business Management and an Advanced Diploma of Business. The applicant enrolled in, but did not complete, a Certificate III in Cookery. The applicant told the Tribunal that during his study, he worked as a taxi driver.

12. The purpose of the applicant’s travel to and stay in Australia was to study until the applicant applied for and was granted a 457 visa in January 2014. The applicant was employed by Oak Australia Group PTY LTD as a Restaurant Manager at an Italian restaurant from January 2014 until 1 December 2015. The applicant told the Tribunal that when he arrived at work on 2 December 2015, he found the restaurant closed. The applicant told the Tribunal that he tried contacting the owner via telephone and by visiting his home but he could not locate him.

13. The applicant told the Tribunal that he was aware of the conditions of his 457 visa and particularly condition 8107. The applicant said that a new nomination application was lodged in his favour by Waraich & Chhina Pty Ltd on 27 January 2016, fifty-eight days after he ceased employment. However, he claims that while he met his obligation by finding a new sponsor and a new nomination application was lodged, he was then subject to delayed processes by the Department in relation to the approval of that nomination.

14. As outlined in the delegate’s decision, in order for the applicant to be able to lawfully work for another sponsor in Australia while holding a subclass 457 visa, they would first need to lodge a new Temporary Business Entry Nomination application in respect of him and for the Department to approve that application.

15. The Tribunal notes that it was more than ten months after the applicant ceased employment before the Department issued its notice of intention to cancel the applicant’s visa and eleven months before the Department cancelled the visa. While the Tribunal acknowledges that a nomination application in the applicant’s favour was lodged with the Department in January 2016, between that time and the Department issuing its notice of intention to cancel the applicant’s visa, the applicant initially told the Tribunal that he followed up his sponsor on one occasion. Later, the applicant told the Tribunal that he followed up his sponsor two to three times and they said there was a ‘minor hiccup’ because the Department wanted photos of the restaurant. The applicant also said that he followed up his nomination application with the sponsor’s migration agent four or five times who told him that the Department’s processing timeframes were taking a long time.

16. The applicant told the Tribunal that during the period of January 2016 and the cancellation of his visa in November 2016, he did not seek any other nominations despite how long the process was taking and in the knowledge that his sponsor had told him of a ‘minor hiccup’ because he had signed a contract of employment with Waraich & Chhina Pty Ltd and he thought that the Department would have a problem if he lodged more than one nomination. The applicant told the Tribunal that at no stage did he contact the Department to discuss his circumstances or to ask if he could lodge a new nomination application or check on the timeframes associated with the processing of nomination applications. He said that he was a hopeful person and it was his fault that he did not contact the Department.

17. The applicant claimed that after the nomination application was lodged, the rest was outside his control. He said the Department did not make a decision on the nomination application and if they had not taken so long, he could have found another sponsor. In relation to the Tribunal’s concerns regarding the relatively few times the applicant followed up with his sponsor or their migration agent regarding the nomination application, the applicant said that whenever he rang the Waraich & Chhina Pty Ltd office, they always said there was a ‘minor hiccup’ and then next time, they said they had to send photos and then said they were still waiting. He said that the standard reply of the migration agent was that the application was being processed.

18. The applicant also told the Tribunal that he applied for a further student visa in October 2016 in order to get another qualification that would enable him to get a better job. He said that he did not know if he would be able to continue with his 457 visa and if he could study then he could work. However, the Department refused this student visa application.

19. The applicant told the Tribunal that given the nomination application had taken so long with the Department, he thought it would eventually be approved but he was then made aware that Waraich & Chhina Pty Ltd withdrew the application in February 2017 (more than three months after the cancellation of his visa) and he does not know why. After the withdrawal of this nomination, the applicant said he found a new sponsor, Royal Brothers Pty Ltd, who lodged a nomination application on 5 March 2017 and this application was approved on 4 April 2017.

20. The Tribunal asked the applicant what he had been doing since he ceased employment and how he was supporting himself. The applicant said he was renting an apartment with friends that cost him rent of $100 per week. He told the Tribunal that he has used the maximum credit on his credit card of $20,000 and when his credit card ran out after one year, then his family supported him and a friend in Austria gave him $2,800. Initially, the applicant said he has not been working for one year. He then told the Tribunal he had not been working for almost two years and he had been spending his time going to the temple, sitting on the beach and watching movies on the internet.

21. The applicant’s representative also submitted that in relation to the follow up of the applicant of his nomination application, the sponsor’s migration agent would not provide him with much information because they worked for the employer. The applicant’s representative also stated that, in relation to the length of time following lodgement of the nomination application and the applicant not seeking any other nominations, this was because he was unable to judge whether the application of Waraich & Chhina Pty Ltd would be refused. The applicant’s representative stated that looking for a new sponsor is not easy and given the applicant’s last sponsor had closed down, he was careful about where to go next.

22. In terms of hardship, the applicant stated that he has been in Australia for nine years, initially as a student and then as a worker. He said it would cause considerable embarrassment to have to leave Australia and return to India having had his visa cancelled. The applicant’s representative also submitted that the applicant was going through a lot of hardship because he was stressed about his situation and as a twenty-eight-year-old having to ask his parents for money, this was embarrassing and he would need to repay his parents and friends that had supported him. He has been unable to work since his subclass 457 visa was cancelled, and had used his credit card and both financial and in-kind support of friends during this time.

23. The applicant is not in a relationship, has no children, has not breached any other conditions of his visas, and there is no behaviour of concern towards the Department. The applicant told the Tribunal that there was no reason he could not return to India. There is nothing to indicate that any international obligations would be breached if they returned to India.

24. The Tribunal acknowledges that the applicant has been nominated by Royal Brothers Pty Ltd. However, this nomination was only approved in April 2017, more than sixteen months after the applicant ceased employment and more than five months after the cancellation of his visa. While the applicant told the Tribunal his employment contract with Royal Brothers Pty Ltd is for four years, he also said that Royal Brothers Pty Ltd has only received approval for the nomination for a period of twelve months. The Tribunal considers the length of time the applicant has ceased employment before a nomination application was approved in his favour to be a serious and significant breach of his visa conditions. Nevertheless, the Tribunal places some weight on this new nomination approval.

25. The applicant stated that the ground for cancellation arose in circumstances outside his control given his employer ceased its operations and while he had secured a new nomination application, the Department’s approval of that application was outside his control.  However, the applicant told the Tribunal that he was aware of the conditions of his visa and after the new nomination application was lodged and months had passed without the applicant receiving notice of the approval of that application, he only followed up his sponsor between one and three times and his sponsor’s migration agent four to five times with little success. The Tribunal asked the applicant if he sought advice from the Department in relation to his issue. The applicant stated that he did not. In these circumstances, the Tribunal does not accept that the ground for cancellation arose due to circumstances beyond the applicant’s control.  The applicant stated that he was aware of the conditions of his visa and it was his responsibility to ensure that he did everything he could to meet those conditions, and this was a matter which could easily have been clarified through an inquiry with the Department.

26. The Tribunal accepts that the applicant would experience some hardship and disruption to his life if he were to leave Australia given his lengthy periods of residence. However, the Tribunal notes that there is no independent evidence that the applicant has a credit card debt of the value he described. In addition, the Tribunal does not accept that the applicant has not been working for almost two years and has been spending his time going to the temple, sitting on the beach and watching movies while his family and friends supported him. The applicant’s oral evidence was not persuasive and as outlined above, other than the applicant’s assertions, no independent evidence was provided to support his claims of credit card debt or any other support that was provided to him.

27. The Tribunal further considers that any hardship the applicant may experience is outweighed by the significance of the breach of condition 8107 of his subclass 457 visa given, as outlined above, it was more than ten months before the Department issued its notification of intention to cancel his visa which is more than seven months longer than the time allowed for a new nomination to be lodged and approved by the Department. The applicant also told the Tribunal of his numerous qualifications and work experience obtained in Australia and the Tribunal considers that the applicant's Australian qualifications would increase his employment prospects in India.

28. The Tribunal also notes that while the applicant claims he was ‘hopeful’ the nomination application of Waraich & Chhina Pty Ltd would be successful, he nevertheless lodged a student visa application in October 2016 which suggests to the Tribunal that the applicant’s intention is to stay in Australia regardless of what visa he holds.

29. Balancing all of these factors, the Tribunal places significant weight on the length of time taken by the applicant to secure a new nomination approval. The applicant was granted a subclass 457 visa on the basis of working in a nominated occupation, but he has not done so since December 2015.

30. While the Tribunal acknowledges that the applicant now has a new nomination approved in his favour, the Tribunal finds that the applicant could apply for a further 457 visa offshore. The Tribunal also notes that the applicant has another application currently being considered by the Department and he can seek a continuation of his Bridging Visa whilst that application is considered.

31. Considering the matters raised by the applicant singularly and cumulatively, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Saxon Rice
    Member