Singh (Migration)

[2017] AATA 2440

Singh (Migration) [2017] AATA 2440 (22 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lakhwinder Singh

CASE NUMBER:  1706958

DIBP REFERENCE(S):  BCC2016/3841154

MEMBER:Catherine Carney-Orsborn

DATE:22 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 22 November 2017 at 12:48pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Ceased employment and exceeded 90 consecutive days – No approved nomination

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 8107(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 March 2017 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 that the applicant had not complied with a condition 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 17 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. 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

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(3)(b) attached to the applicant’s visa. This condition requires that if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days.

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

8. 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

9. 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’.

10. The applicant gave oral evidence at a hearing. The Tribunal has before it the Department’s file and further documents and submissions supplied by the applicant. 

11. The applicant’s evidence is that he first came to Australia in 2009 on a student visa.  He has family in India including his mother and sister. 

12. The applicant went through his work history in Australia.  He worked for Tamarin Indian Tandoori Restaurant in a Café from March 2015.  His evidence is that he was misled and was never told when the company stopped trading.

13. He claims that he was told he was to be transferred to another café.  His evidence is that he took leave and when he returned from leave he saw a notice on the restaurant that the business is under new management and was undergoing renovation.  He claims he relied on the employer to contact Immigration and arrange for his transfer to a new company.

14. He claims he accepted those assurances from his employer and did not make any of his own enquiries.

15. His evidence is that when he received correspondence from the Department of Immigration he was shocked and then realized his previous employers had lied to him.  He says he considered he ceased working in December 2016. 

16. He has since searched for work.

17. The applicant’s spouse gave evidence.  She gave evidence that she has been in Australia since 2009.  She gave evidence that it would be difficult for her and her children to return to India. 

18. The purpose of the applicant’s stay and travel to Australia is to work.  The visa is a temporary work visa.  The applicant has not worked since December 2016.

19. When queried about any hardship the applicant would face if he returned to India.  He stated that there is nothing in India and they would struggle to start again.

20. The applicant did not keep the Department informed of having lost his work until they sent him correspondence in relation to his employer. Other than the issue of not keeping the Department informed there does not appear to be any other non-compliance with his previous visas.

21. The applicant states that his children are settled in Australia.  The applicant has always been on a temporary visa.  He has chosen to re-locate his children.

22. Children and families are often re-located for the work of one of their parents.  It is not an issue generally when they return to their home country.  The children are young and resilient and they will be returning to family support in their home country.

23. The applicant has acquired skills in Australia including an education.  This will be of assistance in any work he chooses to undertake outside Australia.

24. There is nothing to indicate that any international obligations would be breached if they returned to India.

25. The applicant stated that he had some debts he had to repay.  He provided copies of a debt to a public school.  The applicant should be able to discuss with a public school his circumstances and come to an agreement.

26. The applicant stated that he had someone else willing to sponsor him.  At the hearing the applicant provided to the Tribunal a copy of an acknowledgement of a nomination application which was lodged on 8 April 2017. 

27. The applicant asked the Tribunal to wait some extra time.

28. The Tribunal pointed out that it had already been a significant amount of time since he had any work and an approved nomination however the Tribunal agreed to wait for a further period to time. 

29. The Tribunal gave another month for the applicant to provide any further information on the nomination process.

30. The Tribunal has waited that period of time.  Nothing further has been provided from the applicant in relation any employment or nomination.

31. The Tribunal considers that the applicant has been in breach of a condition of his visa for nearly a year.  The Tribunal has waited an extra time for any further nomination to be approved.  At the time of decision there is nothing before it to indicate there has been an approved nomination.

32. The Tribunal has considered all the evidence.  The purpose of the visa is for temporary work in Australia.  The applicant has been in breach for nearly a year.  On the evidence before it the Tribunal is not satisfied any international obligations would be breached.  The Tribunal is satisfied that the applicant may have to apply for a job in the India and arrange for his children to be educated.  The Tribunal considers that these are concerns that face any family that returns after re-locating to another country for work.  The Tribunal considers that the applicant has acquired further skills in Australia such as English language skills which will be of assistance to him and his family when he returns to the India.  The applicant also has family support in India.

33. The Tribunal further considers that any nomination process could continue in Australia while the applicant was with his family in India.  If any nomination application was successful he could apply for a further 457visa off shore.

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

    DECISION

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

    Catherine Carney-Orsborn
    Member