Singh (Migration)

[2017] AATA 2059

Singh (Migration) [2017] AATA 2059 (25 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kaptan Singh
Mrs Kavita Banger

CASE NUMBER:  1611084

DIBP REFERENCE(S):  BCC2016/1838010

MEMBER:Alison Mercer

DATE:25 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 25 October 2017 at 11:18am

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work Skilled) visa – Ceased working for sponsoring employer

LEGISLATION
Migration Act 1958, ss 48,116,140, 348
Migration Regulations 1994, Schedule 3, cl 457.211, r 2.43

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 19 July 2016 made by a delegate of the Minister for Immigration 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) on the basis that the applicant was found to have breached condition 8107, a condition of his subclass 457 visa, as he had ceased working for his original sponsoring employer for more than 90 consecutive days. The delegate found that there were therefore ground to cancel the applicant’s visa pursuant to s.116(1)(b) and that the factors in favour of cancellation outweighed those against. As a result of the cancellation of the applicant’s visa, his wife (the second named applicant) had her visa automatically cancelled.

3. The issue in the present case is whether that ground for cancellation of the applicant’s subclass 457 visa is made out, and if so, whether the visa should be cancelled.

4. 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.

5. The Tribunal received an application for review from the applicants on 21 July 2016.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Vijay Sharma, as their representative and authorised recipient for correspondence for the purposes of the review.

6. On 28 October 2016, the Tribunal sent a hearing invitation to the applicants via their agent for a hearing on 16 December 2016.  They were also requested to provide written submissions and/or documents in support of their case by 9 December 2016.

7. On 7 November 2016, the applicants’ agent requested a postponement of the hearing on the basis that he was travelling overseas between 17 November 2016 and 5 January 2017.  The agent attached his travel itinerary. On 23 November 2016, the Tribunal wrote to the applicants via their agent to advise that it had agreed to reschedule the hearing to 13 January 2017.

8. The applicants appeared before the Tribunal on 13 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Manpreet Singh, the applicant’s brother. Prior to the hearing, the applicants appointed a new migration agent, Mr Joseph Mayadunne.

9. Following the hearing, the applicant provided a letter from his prospective employer, Geo & Jam Pty Ltd, dated 17 January 2017, confirming its intention to hire him as a Pastry Chef, and providing proof of lodgment of its nomination of him in that position with the Department on 24 December 2016.

10. On 24 January 2017, the Tribunal received an additional written submission from the applicants’ agent.

11. 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

12. 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.

    Department history

13. The Department’s records indicate that the applicant was granted a subclass 457 visa on 23 August 2013, which was valid for 4 years. His sponsoring employer for this visa was Romanella Corporation Pty Ltd as trustee for Romanella (trading as Ivanhoe Cakes), who nominated the applicant for the position of Pastry Chef.

14. The delegate’s decision records that the Department was notified by this employer on 9 May 2016 that the applicant ceased employment there on 1 February 2016.

15. On 5 July 2016, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) letter, in which the above information was set out and the applicant was invited to respond as to why his visa should not be cancelled. The letter noted that the information provided by the applicant’s employer indicated that the applicant ceased employment on 2 December 2015 and had therefore breached condition 8107 of his visa. This condition required that he not cease employment with his sponsoring employer for more than 90 consecutive days. 

16. The applicant provided a written response via his agent to the Department on 8 July 2016, in which it was argued that a new employer, Frisina Corporation Pty Ltd (now trading as Ivanhoe Cakes), had lodged a nomination in relation to the applicant with the Department on 7 July 2016, and that the circumstances in which this arose were that Mr John Frisina had taken over Ivanhoe Cakes from Romanella Corporation Pty Ltd in February 2016. The agent further asserted that the staff of Ivanhoe Cakes was not advised of the business changing hands until 1 May 2016 for fear that they may leave, and for the same reason, the previous owner Mr Romanella stayed on as manager until 30 April 2016. It was further asserted that the new owner, Mr Frisina, had continued to employ the applicant and other staff, but did not realise until the applicant received the NOICC that a new nomination for the applicant needed to be lodged by his company. The agent asserted that the applicant continued to work and be paid in his nominated position throughout this period, and that Mr Frisina was keen to retain him in the business.  The agent also stated that the applicant denied ceasing employment on 1 February 2016, and that he speculated that the advice received by the Department from the previous employer was either incorrect in this respect, or was simply advising that the original employer was no longer operating the business.  The Department was therefore asked not to cancel the applicant’s subclass 457 visa.

17. On 19 July 2016, a delegate of the Department decided to cancel the applicant’s visa. In reaching this decision, the delegate noted that neither the applicant nor his original sponsoring employer had advised the Department that he had ceased work with the sponsoring employer on 1 February 2016, or that he had returned to work for that employer or an associated entity, within 90 consecutive days of ceasing employment. The delegate further noted that no new nomination by another employer had been lodged within 90 consecutive days. The delegate therefore found that the ground for cancellation of the visa was made out pursuant to s.116(1)(b) of the Act as the applicant had breached condition 8107(3)(b) of his visa. The delegate considered the factors for and against exercising the discretion to cancel the visa, and concluded that the factors in favour of cancellation outweighed those against. In particular, the delegate gave weight to the following factors:

    ·    the applicant claimed that he did not cease employment until 1 May 2016 but had not provided any evidence to substantiate this. Moreover, although he stated that he had found alternative employment and sponsorship, this was not finalised within 90 days of ceasing with his original employer.  Moreover, the nomination by the new employer was undecided; and

    ·    there was little evidence that the applicant would suffer hardship if his visa were cancelled.

    Evidence to the Tribunal

18. On 12 January 2017, the applicants’ agent provided an email submission in which he indicated that he would not be accompanying the applicants to the hearing on 13 January 2017 due to ill health.  He further advised that he was forwarding the applicant’s bank statements from December 2015 to June 2016, noting that in January 2016, the payee changed from Romanella Corporation Pty Ltd to Frisina Corporation Pty Ltd.  The agent asserted that the applicant was told that this was a structural change only and that it did not affect him in any way. The agent stated that Mr John Frisina (owner and director of Frisina Corporation Pty Ltd) was not informed by the previous owner of the business that the applicant held a subclass 457 visa and therefore, a new nomination had to be lodged by Frisina Corporation Pty Ltd in relation to him once the business had been sold to Frisina Corporation Pty Ltd by Romanella Corporation Pty Ltd.  The agent further stated that Mr Frisina only became aware of this when the applicant received the NOICC from the Department, and then took action by lodging the nomination and having the applicant cease work there until it was approved.  The agent asserted that this whole situation was caused by the previous owner of the business selectively withholding information from both the applicant and Mr Frisina.  He stated that since then, due to the communication gaps and delays in the approval of the nomination by Frisina Corporation Pty Ltd, it had been mutually decided not to pursue the nomination but that, in the meantime, the applicant had found alternative employment with another Australian business, Geo & Jam Pty Ltd.  This business had lodged a nomination in respect of the applicant with the Department which was pending.  The submission was accompanied by:

    ·a scanned copy of a letter from the Department to Geo & Jam Pty Ltd dated 24 December 2016 acknowledging receipt of a nomination application; and

    ·copies of the applicant’s Westpac bank statements for the period 18 December 2015 to 17 June 2016, showing regular fortnightly deposits from Romanella Corporation to the applicant for salary until 4 February 2016, when the same fortnightly salary payments continue but are made by Frisina Corporation Pty Ltd.  From 10 March 2016, the salary payments to the applicant are from Ivanhoe Cakes.

19. At the hearing on 13 January 2017, the applicant told the Tribunal that he came to Australia as a student in 2009 and studied Hospitality (Commercial Cookery) and Management. He finished his studies in May 2014 and looked for full time employment.  He was employed by Romanella Corporation Pty Ltd (trading as Ivanhoe Cakes) as a Pastry Chef and was granted a subclass 457 visa on this basis on 23 August 2014.  He got this job as he had been working part time as a student in a nearby restaurant, which ordered its pastries from Ivanhoe Cakes.  The applicant said that he initially did 900 hours of voluntary work with Ivanhoe Cakes for his course and skills assessment in 2010, then he worked for pay for Ivanhoe Cakes on a part time basis while holding a student visa, then on a full time basis from September 2014.  The applicant described the business as a family-owned business that had been running for over 30 years.  The owner when he was employed was Mr Romanella, and right from the beginning, Mr Romanella told him (and other staff) that he was looking to sell the business and transition to retirement.  A number of potential buyers came in for trials but nothing came of these until Mr Frisina (of Frisina Corporation Pty Ltd) began negotiations with Mr Romanella in or about February 2016.  The applicant said that he still continued in his normal full time employment as a Pastry Chef with Ivanhoe Cakes and was unaware that the business had actually been sold to Mr Frisina’s company until May 2016, when the subclass 186 (Employer Nomination Scheme) permanent residence visa application he had lodged in October 2015 was refused by the Department because Romanella Corporation Pty Ltd no longer owned Ivanhoe Cakes.  The applicant said that the staff were told in February2016 that Mr Frisina was having a trial, and that Mr Romanella continued actually running the business until late April 2016.  The applicant said that his understanding was that he could continue his employment there while holding his subclass 457 visa.  The Department then raised with Mr Frisina in June 2016 the issue of whether the applicant was the subject of a nomination by his company in June 2016, and Frisina Corporation Pty Ltd did lodge a nomination with the Department in respect of the applicant.  This was pending when the Department made the decision to cancel the applicant’s subclass 457 visa on 19 July 2016.  The applicant said that after his visa was cancelled, Mr Frisina became concerned about the complexity of the process and withdrew the nomination of the applicant by his company. 

20. The applicant told the Tribunal that he was working at Ivanhoe Cakes up to and including the first week of July 2016, and stopped when the visa was cancelled.  His bank records showed that he continued to be paid the same fortnightly wage by the business during this time.  The applicant said that he looked for another employer who could nominate him but that, although he tried many places, most were not willing to go through the nomination process for him due to his visa status.  However, through an agency, he applied for a Pastry Chef job with Geo & Jam Pty Ltd, which operates a café on the campus of Deakin University.  This employer offered him a job in late 2016 as it was their quiet period, and they were confident that they could make a nomination application in relation to him during this time and that it would most likely be approved by the time the first semester of 2017 commenced in March. The applicant said that he did a 2 day trial with this employer, after which they offered him the job and to nominate him.  The applicant said that Geo & Jam Pty Ltd was already an approved standard business sponsor, as far as he knew. Its nomination was lodged with the Department on 24 December 2016 and they anticipated it would take about 3 months for the Department to process it, although this was not guaranteed.

21. In relation to his personal circumstances, the applicant said that his brother Manpreet Singh had been helping the applicant and his wife to get by financially. The applicant said that he and his wife are sharing accommodation with Manpreet Singh, who is an Australian permanent resident.  The applicant said Manpreet successfully applied for a subclass 186 (Employer Nomination Scheme) visa with his employer and is employed full time as an automotive mechanic.  In relation to the rest of his family, the applicant said he and Manpreet have another brother who remains in India and works in agriculture with their father in Haryana.  Their mother is deceased.  The applicant said that his wife’s family is in India.  His wife is looking after their 8 month old son, and previously worked casually for Crust Pizza until she stopped work when she became pregnant. 

22. The applicant said that his understanding was that his subclass 457 visa would have been valid until August 2017 if it had not been cancelled. He emphasised that he (and the other staff) were unaware that the business trading as Ivanhoe Cakes had actually been sold by Romanella Corporation Pty Ltd to Frisina Corporation Pty Ltd until 24 May 2016, when his subclass 186 visa was refused on that basis.  The applicant pointed out that he did in fact take action to have a new nomination approved within 90 days of this date, as Frisina Corporation Pty Ltd lodged a nomination in relation to him in June 2016 (although this was subsequently withdrawn).  He said that he had been kept in the dark about the sale of the business by Mr Romanella, despite working for him from 2010 to 2016, but that when he did find out, he took action as soon as possible to obtain a new nomination approval.  It was not his fault that Frisina Corporation Pty Ltd did not proceed with that nomination, and he had now found a new employer who valued his skills as a Pastry Chef.

23. The applicant said that his son was born on 13 April 2016, so that whole period was very busy for him.  In relation to the effect on him and his family if they had to depart Australia now, the applicant said that he had been here since 2009 and that his son was born here.  It would be difficult to relocate to India as there would be few job opportunities in his field in Haryana, where his family is, as it is largely rural. The applicant said that emotionally, it was now hard for him to trust anyone, as both his former employer Mr Romanella and his former migration agent had let him down. In response to the Tribunal noting that a subclass 457 visa did not guarantee continued employment or permanent residence, the applicant said that he had done the right thing by his former employer and the business and had now secured employment with another employer, which he believed justified him retaining his visa.  He had no knowingly breached any visa conditions and was never notified that his employment with Romanella Corporation Pty Ltd had ceased when Frisina Corporation Pty Ltd bought the business.  The applicant said that he and his wife wanted to remain here and Australia offered his son better opportunities than India.  The applicant said that his father would also be upset if the applicants had to return to India as he understood that the applicant was going to apply for permanent residence here in due course.  The applicants returning might put financial and emotional pressure on him which could affect his health.

24. The Tribunal then took evidence from the applicant’s wife, who told the Tribunal that she had been in Australia since 2014 after she married the applicant. She said that she was financially dependent on him and had not been in the workforce in India.  She told the Tribunal that she was pregnant while the applicant was working for Ivanhoe Cakes in early 2016 and he had to take her to the Emergency Department on several occasions due to pain, and that she had to have stitches and was confined to bed rest for 3 to 4 weeks after the birth of her son, during which time the applicant had to look after her.

25. The Tribunal also took evidence from Mr Manpreet Singh, the applicant’s brother, who confirmed that he is an Australian permanent resident, having originally come as a student and then being sponsored for permanent residence by his employer.  He confirmed he is working full time as an automotive mechanic and that he is assisting the applicants financially and that they are living with him.  He said that he was shocked when the applicant’s visa was cancelled as the applicant was a hard worker who had never done anything wrong. His own subclass 186 visa application had gone smoothly, so they did not anticipate the problems that the applicant has had with his former employer. 

1. Mr Singh said that he thought it would be very hard for the applicants and their son to relocate to India, particularly since their son was born here and had never been to India, and the applicant had been here since 2009 and his wife since 2014.  Mr Singh said that he would no longer have his brother in Australia, and his father was already supporting their other brother who was studying Mechanical Engineering in India, so the applicants returning might put more pressure on him.

2. The applicants’ agent submitted that the applicant was not told by his former employer that he had sold the business in February 2016, and only found this out from the Department several months later.  His bank statements showed he continued to be paid his regular wages by Ivanhoe Cakes up until June-July 2016 so he had no reason to realise that the business had in fact been sold in February 2016, particularly as he and other staff were told Mr Frisina was having a trial (as had occurred with potential buyers in the past) and Mr Romanella continued to be directly involved in Ivanhoe Cakes until April 2016.

   Post hearing submissions

3. On 18 January 2017, the applicants’ agent provided a letter dated 17 January 2017 from Maudeann Anjoul, owner/manager of Geo & Jam Pty Ltd (trading as Fusion Café, Deakin University, Burwood Campus). Ms Anjoul states that the café caters for the University’s students and staff, and that its clientele is quite diverse in nationalities and cultures. For this reason, the café sells a wide variety of cakes and desserts ranging from European to Asian cuisine.  She further states that the applicant was introduced to them by a recruitment agency, and that given his Australian Pastry chef qualifications and work experience, they were very keen to hire him. She states that they have already tested his skills when he voluntarily worked a day in their campus kitchen and had found he had the necessary skills to bake cakes and desserts, especially those catering for the Asian students on campus, but also European-style pastries such as Danish and croissants.  Ms Anjoul states that the applicant is quite a creative and innovative Pastry Chef with considerable work experience in the field.  Hence they have lodged a nomination for him with the Department and were awaiting the result in order to employ the applicant. She states that they are serious about employing him on a long term basis, as the business had long term expansion plans.  Ms Anjoul further states that the café is currently open but it is in a relatively quiet period as only University staff are there at present, but it will become busy again in March 2017 when semester 1 commences.  They therefore hoped to get the applicant on board by then and were confident that their nomination would be approved. Ms Anjoul states that the campus has a large number of Asian students and the applicant has the cultural background and experience to cater for them.  They consider he will be an asset to the business.

4. On 26 January 2017, the applicants’ agent provided a further written submission, in which he argued (in summary) that:

   ·the applicant arrived in Australia 6 years ago as a student and completed qualifications to become a Pastry Cook.  On completion of his studies, he managed to secure employment with Romanella Corporation Pty Ltd (trading as Ivanhoe Cakes) and that employer sponsored him for a subclass 457 visa;

   ·in October 2015, the applicant applied for a subclass 186 visa, for which he was nominated by Romanella Corporation Pty Ltd, who signed an employment agreement with him in which it agreed to employ him for at least 2 further years;

   ·while the Department was processing the subclass 186 visa application, it contacted the applicant on 6 May 2016 to request him to undertake police and health checks. The applicant undertook these immediately and provided them to the Department;

   ·however, on 5 July 2016, the Department advised the applicant that it intended to cancel his subclass 457 visa as his employer had informed the Department that he had sold the business and terminated the applicant’s employment.  A decision to cancel was made on 19 July 2016 on the basis that the applicant had not complied with condition 8107;

   ·the applicant maintained that he had no knowledge or understanding that his employment was terminated, nor any idea that the business had actually been sold to another party.  He reiterated that from the time he joined Ivanhoe Cakes, the owner had been talking about selling it as he was tired of running it for over 30 years.  There had been numerous people coming in and out all the time trialling with the intention of buying the business.  However, no sale eventuated.  Existing employees during this period kept leaving the business as they were concerned about the security of their employment;

   ·the applicant strongly believed, given this had happened in the past, that his employer kept the actual sale of the business in early 2016 secret from his employees as he feared that all or some of when would leave and that this would jeopardise the sale of the business;

   ·the owner kept coming into the business premises as usual until May 2016, and therefore most employees, including the applicant, were unaware that the business had in fact been sold in February 2016.  They assumed that the new owner was having a trial period, as had happened with potential buyers previously;

   ·the applicant continued to be paid his wages and only came to know the business had changed hands when the Department sent him the NOICC in May 2016, by which time more than 90 days had passed since the sale of the business;

   ·for the record, as per the employment agreement, the employer was supposed to give the applicant notice prior to termination of his employment but this did not occur;

   ·as soon as the applicant was notified by the department of this, he took immediate action to get a new nomination lodged by the new employer in early July 2016.  However, after the cancellation and lodgment of the review application with the Tribunal, he was only able to obtain a bridging visa without work rights and as a result, the new employer decided not to proceed with the nomination, as they wanted someone to work in the business immediately.  Accordingly, the new nomination was withdrawn by them in August 2016;

   ·again, the applicant was able to find a new sponsoring employer/nominator through a job agent (Geo & Jam Pty Ltd) and that employer’s nomination was pending with the Department; however, the employer was confident that it would be approved and keen for the applicant to start with them as soon as possible, as they had already given him a practical trial. The business operated the Fusion Café at the Burwood campus of Deakin University and placed heavy reliance on having the applicant ready to commence work with them by the commencement of semester 1 in March 2017;

   ·it was further submitted that the applicant believed he would face severe financial hardship if obliged to return to India as he saw no promising job prospects for him or his wife, and therefore his father (who was not currently financially well off) would have to support him.  His father was already supporting the applicant’s younger brother who was in full time study in India, and the applicant did not believe he would be able to take on any additional financial burden;

   ·moreover, the applicant believed he had not breached the 90 day requirement as he took immediate action to obtain a new nomination as soon as he became aware that Romanella Corporation Pty Ltd had sold Ivanhoe Cakes to Frisina Corporation Pty Ltd.  He had a good record of compliance with immigration law in Australia otherwise and was a hardworking and honest person whose circumstances were to a large degree outside his control; and

   ·he and his family therefore requested consideration of what they considered compelling reasons for not cancelling their subclass 457 visas.

5. On 10 March 2017, the Tribunal wrote to the applicants via their agent to request an update as to the status of the nomination made by Geo & Jam Pty Ltd which was currently with the Department. On 14 March 2017, the applicants’ agent advised the Tribunal that the nomination application had now been allocated to a Departmental case officer, who had requested documents to be provided by the nominating employer. This had been sent, and the employer was now awaiting the outcome. The agent requested that the Tribunal defer its decision until the outcome was known and undertook to update the Tribunal once he received notification of a Departmental decision.

6. On 30 May 2017, the Tribunal wrote again to the applicants via their agent to request an update as to the status of the nomination made by Geo & Jam Pty Ltd.  On 26 June 2017, the applicants’ agent advised that he was instructed that the employer had engaged another migration agent, and that agent had advised that there was no Department decision as yet. He speculated that due to upcoming changes to the subclass 457 program anticipated to take effect on 1 July 2017, the Department might be waiting until after this date to make a decision on the nomination. He noted that the applicant’s visa would otherwise be expiring shortly and asked the Tribunal to urgently make a decision on the case. 

7. On 26 July 2017, the Tribunal wrote to the Department to seek an estimate of the likely processing time to finalise the Geo & Jam Pty Ltd’s nomination application. The Tribunal followed up this request on 21 August 2017.  On 23 August 2017, a Department officer advised that no specific timeframe could be given, but that it was likely that the applicant’s visa would have expired prior to any decision being made as the case was potentially affected by the caveats introduced on 19 April 2017 to various occupations approved for the subclass 457 visa program.  She stated that 75% of nominations for subclass 457 visas were finalised within 4 months, and 90% were finalised within 9 months, but individual cases might be outside these timeframes depending on their particular circumstances.

8. On 30 August 2017, the Tribunal wrote to the applicants via their agent, pursuant to s.359A of the Act. The Tribunal invited them to comment on information that was potentially adverse to their case, being the fact that the Department’s records indicated that their subclass 457 visas that were cancelled would otherwise have expired on 23 August 2017, a date which had now passed, and that the nomination of the applicant by Geo & Jam Pty Ltd was yet to be decided, and no timeframe for its finalisation had been provided by the Department.  The Tribunal indicated that this was relevant to the decision under review because, subject to their comments, these factors weighed in favour of not setting aside the visa cancellations under review, as the visas would have in fact expired by now in any case, and the applicant was still not the subject of an approved nomination by Geo & Jam Pty Ltd and there was no indication of when or if he would be.  The Tribunal noted that, given the overall purpose of the subclass 457 visa program was to meet labour market shortages for Australian employers on a temporary basis, the above factors appeared to weigh in favour of affirming the cancellation.  The Tribunal further stated that if it found this to be the case, then it might find that the factors in favour of cancellation outweighed those against cancellation, and if it did so, this would be the reason (or part of the reason) to affirm the decision under review.  The applicants were invited to provide comments or a response to this information by 13 September 2017.

9. On 12 September 2017, the applicant provided a response in which he reiterated that he believed that he did not breach condition 8107 as he was unaware that his original sponsoring employer had sold his business and withdrawn the nomination. He reiterated that he only found this out when informed by the Department in June 2016 and that he then took immediate steps to seek another nomination, which he successfully did, and he therefore he believed his subclass 457 visa should never have been cancelled. The applicant said that he accepted that his subclass 457 visa would have expired on 23 August 2017 if it had not been cancelled already, but stated that he believed that if the Department had processed Geo & Jam Pty Ltd’s nomination more quickly, he would have been able to successfully lodge another subclass 457 visa application onshore with his new employer. He observed that the Department had taken an unusually long time to finalise Geo & Jam Pty Ltd’s nomination (in excess of 10 months, which was beyond their stated processing service standards), and that he felt that neither he nor his employer should be penalised because of this when they had taken all steps to arrange for the applicant to work for Geo & Jam Pty Ltd through the subclass 457 visa program.  The applicant further stated that he and his young family had been put through a lot of difficulty, firstly by his original employer, for whom he had worked hard for many years, and secondly by the Department, which had not given the applicant and his family a fair go.

10. The applicant reiterated that his employer Geo & Jam Pty Ltd was very happy with him and considered his skills would be very valuable to the business, and was confident that its nomination would be approved soon. He therefore asked the Tribunal to give additional time until the Department made a decision on the nomination before making its decision. 

11. On 20 September 2017, the Tribunal received an email from the applicants’ agent attaching a letter from the Department of the same date approving Geo & Jam Pty Ltd’s nomination of the applicant for the occupation of Pastrycook (ANZSCO code 351112).

    Does the ground for cancellation exist?

12. 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 as follows [Tribunal’s emphasis]:

    8107

    (1)      If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a)      cease to be employed by the employer in relation to which the visa was granted; or

    (b)      work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    (c)      engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

    (2)      If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)      cease to undertake the activity in relation to which the visa was granted; or

    (b)      engage in an activity inconsistent with the activity in relation to which the visa was granted; or

    (c)      engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

    (3)      If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)      the holder:

    (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)      unless the circumstances in subclause (3A) apply:

    (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

    (C)      if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor.

    (aa)      the holder must commence that work within 90 days after the holder’s arrival in Australia; and

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and

    (c)      if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:
         (i)      hold the licence, registration or membership; and
         (ii)      comply with each condition or requirement to which the licence, registration or membership is subject.

    (3A) For subparagraph (3)(a)(ii), the circumstances are that:

    (a)      if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    (aa)      if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

    (b)      the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

    …

    Conclusions in relation to s.116(1)(b)

13. As noted above, the applicant’s subclass 457 visa, granted to him on 28 August 2013 on the basis of an approved nomination as a Pastry Chef by his then-employer, Romanella Corporation Pty Ltd (trading as Ivanhoe Cakes), was subject to condition 8107 as set out above.

14. According to the Department’s records, the applicant’s employer, Mr Romanella of Romanella Corporation Pty Ltd advised the Department on 9 May 2016 that the business had been sold to a new employer effective 1 February 2016, and thus the applicant was no longer employed by Romanella Corporation Pty Ltd from that date onwards. 

15. The applicant did not dispute this but argued that he was not given any notification of his cessation of employment by Romanella Corporation Pty Ltd, whose principal Mr Romanella continued to work in the business until April-May 2016.  He submitted his bank account records as evidence that he continued to be paid the same salary by the business between December 2015 and June 2016 and thus had no reason to be aware that his employment with Romanella Corporation Pty Ltd had ceased.  The Tribunal notes that for the period 18 December 2015 to 28 January 2016, the salary deposit is made by ‘Romanella Corpor’ but from 4 February 2016 to 17 March 2016, salary payments are from ‘Frisina Corp’, and from 17 March 2016 to 17 June 2016, they are from ‘Ivanhoe Cakes.’  The Tribunal further notes that although on 17 October 2016, the Tribunal requested a copy of the notification sent to the Department by Romanella Corporation Pty Ltd on 9 May 2016 regarding the sale of Ivanhoe Cakes by Romanella Corporation Pty Ltd to Frisina Corporation Pty Ltd, it never received this from the Department.

16. Having regard to all the evidence before it, including written submissions made on behalf of the applicant by his previous agent in response to the Department’s NOICC, in which it is not disputed that the business was sold as alleged in February 2016, the Tribunal concludes that the business Ivanhoe Cakes was sold by Romanella Corporation Pty Ltd to Frisina Corporation Pty Ltd effective 1 February 2016.  Accordingly, the Tribunal finds that the applicant was no longer employed by the former company (his original sponsoring employer) as of 1 February 2016, as his original employment contract was with Romanella Corporation Pty Ltd.  Therefore, the Tribunal finds that at the time that the Department issued a NOICC to the applicant on 5 July 2016, he had ceased employment with his original sponsoring employer for more than 90 consecutive days.  

1. It is further satisfied that the applicant had not secured alternative employment, sponsorship or nomination within the 90 day period commencing 1 February 2016.

2. 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. The factors raised by the applicant regarding his state of knowledge of these events will therefore be considered below.

   Consideration of discretion

3. 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’.

   Purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia

4. As discussed with, and acknowledged by, the applicant at hearing, the subclass 457 ((Temporary Work) Skilled) visa is a temporary visa, the purpose of which is to work for a standard business sponsor in a position approved through the nomination process. There is no other permitted purpose for holding a 457 visa.

5. The applicant's original approved employment has ceased. A nomination of him by the new owners of Ivanhoe Cakes, Frisina Corporation Pty Ltd, was made in July 2016 but subsequently withdrawn. However, there is now a new position of Pastrycook, for which approval from the Department was sought through the nomination process (made by Geo & Jam Pty Ltd, trading as Fusion Café at Deakin University, on 24 December 2016 and approved by the Department on 20 September 2017), based on which the applicant would now potentially meet the criteria for a subclass 457 visa. He could also have continued to meet condition 8107 had the visa been reinstated prior to 23 August 2017 (the original cessation date of the visa had it not been cancelled by the Department).

6. The applicant has argued that he has compelling reasons to remain in Australia as he has employment with another Australian employer, who was happy with his work after a practical trial in late 2016, and who strongly supported his employment to assist their business.  At the time of the hearing, a nomination of him by that employer was undecided by the Department, but it has now been approved.

7. The applicant has also argued that he would struggle to re-establish himself in India, and that he and his wife would be affected financially and emotionally if they had to leave, and that his father in India might face financial stress if required to support the applicant and his family if they had to return to India and could not find employment.

8. The Tribunal has considered the applicant’s evidence about his proposed employment with Geo & Jam Pty Ltd.  The applicant has provided documentary evidence that he has been offered full time employment in his profession as a Pastrycook with that employer, and that they regard his practical skills and employment experience to date as valuable for their business. Documentary evidence was also provided indicating that a nomination of the applicant was lodged by Geo & Jam Pty Ltd (trading as Fusion Cafe) with the Department on 24 December 2016 and was approved on 20 September 2017.

9. Under these circumstances, the Tribunal considers this employment to be a reasonably strong circumstance in favour of not cancelling the applicant’s visa.

10. The Tribunal acknowledges the applicant’s evidence that he had been in Australia since 2009 as a student and then a sponsored employee, and that the cessation of his employment with his original sponsor was not by his choice. It also acknowledges that he actively sought to find another sponsor and nominator after being made aware that Ivanhoe Cakes had been sold to another company by his original employer and that he ultimately did so with Geo & Jam Pty Ltd.  It accepts that, in these circumstances, the applicant wishes to remain in Australia.

11. As discussed with the applicant at the hearing, the subclass 457 visa is a temporary visa the purpose of which is to enable Australian employers to fill skills shortages, and it is not a guaranteed pathway to permanent residence or long term temporary residence.  The Tribunal does not consider the wish of the applicant to remain here for a longer time, or perhaps permanently, to be a compelling reason not to cancel the applicant’s subclass 457 visa, given that it is a temporary visa at best, and is inextricably linked to his being successfully sponsored and nominated for employment by an Australian employer.

12. The Tribunal acknowledges that the applicant would prefer not to return to India and that he may (initially at least) have a lower standard of living if he re-establishes himself there with his wife and son. However, given the purpose of the subclass 457 visa program (and the fact that it is not a guaranteed pathway to ongoing Australian residence), the Tribunal does not consider this to be a compelling reason not to cancel the applicant’s subclass 457 visa. This is particularly so when the Tribunal takes into account the fact that the applicant has qualifications and employment experience which he could use to secure employment in India and that he has some family support there.  The Tribunal acknowledges that the applicant’s father in the India appears to be in relatively modest employment but is not satisfied that (as the applicant claimed) he would face such significant difficulties finding employment that he would be unable to support himself and his family and/or would become a financial burden on his father.

    Extent of the applicant’s compliance with his visa conditions

13. There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of his previous student or of any other conditions relating to his subclass 457 visa apart from condition 8107.  The Tribunal considers that the applicant may have technically breached condition 8107 by continuing to work for Ivanhoe Cakes after it had been sold to Frisina Corporation Pty Ltd, but accepts his oral evidence that he was not aware of the sale of the business until some months later and thus any such breach was inadvertent. The Tribunal does not consider any such breach to be significant – since he was essentially continuing to work in the same role in the same business – or lengthy in duration.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

14. As noted above, the applicant indicated that he and his wife and son would suffer financial, psychological and emotional hardship if they had to depart Australia and return to India.

15. The Tribunal acknowledges that the couple and their son may suffer some financial, psychological and emotional hardship if they had to depart Australia, but does not consider that the degree of financial, psychological and emotional hardship that they would face would be insurmountable as they would be travelling to and living in India together and (as noted above) the Tribunal is not satisfied that the applicant would not be able to find employment there to support them, although it might not be at the level that they experience in Australia.

16. The Tribunal has considered the potential effect of the applicant and his wife and son having to depart Australia on both the applicant’s father in India and his brother in Australia. As noted above, the Tribunal does not accept that this would have a significant adverse financial effect on the applicant’s father as it considers the applicant’s claim that he would not be able to find employment in India to be speculative, and thus does not accept that his return to India would be likely to put a significant financial burden on his father. The Tribunal accepts that the applicant’s father might prefer the applicant and his wife and son to remain in Australia as it holds better economic opportunities for them but there is nothing before the Tribunal to suggest that the applicant’s father would suffer significant adverse emotional effects if the applicant and his family were not able to do so. 

17. In relation to the applicant’s Australian permanent resident brother, Manpreet Singh, the Tribunal accepts that he would miss his brother and his brother’s family should they have to depart Australia, but considers that this is the natural feelings of a sibling and it is not satisfied that the psychological, emotional or financial effect on Manpreet Singh of this occurring would be severe.  In reaching this conclusion, the Tribunal gives weight to the fact that Manpreet Singh is employed full time and is currently assisting the applicant and his family financially, and there is no evidence to suggest that he and the applicant would not be able to communicate regularly through social media, telephone and/or emails if in different countries, nor is there anything to indicate that Manpreet Singh would be unable to visit India to see the applicant and other family members if necessary.

18. The Tribunal accepts that the applicant’s son was born in Australia in 2016 and that the applicant and his wife would prefer him to grow up in Australia where they feel he would have more opportunities.  While the Tribunal accepts that this is their preference, it again notes that the subclass 457 visa is a temporary visa which confers no guarantee of extended or indefinite residence in Australia. Nor is the Tribunal satisfied that there is any cogent evidence to suggest that the applicant’s son would not be able to adapt to life in India if he had to relocate there, given he would be in the care of his parents if that were the case, and given that he is yet to enter the Australian education system and thus can be expected to adapt more readily to a change of country than a child already enrolled at kindergarten or school in Australia.

    Circumstances in which the cancellation arose

19. The Tribunal accepts the applicant’s evidence that he (and another subclass 457-holding employee) were effectively made redundant on 1 February 2016 by their employer, Romanella Corporation Pty Ltd, due to the owner selling the business to a new owner, Frisina Corporation Pty Ltd.

20. The applicant has consistently maintained that he was not informed of the change of ownership (and thus the need for him to secure nomination by the new owner, Frisina Corporation Pty Ltd) at any time by either employer until the issue was raised with him by the Department in May 2016, following which he worked with Frisina Corporation Pty Ltd to ensure that its nomination of him to continue in his role with Ivanhoe Cakes was lodged in June 2016.  The applicant therefore argued that, even if the 90 day period in condition 8107(1)(b) commenced on 1 February 2016, neither he nor the Department were notified by the applicant’s original employer of this until May 2016, and thus it was unfair to cancel his visa when his 90 day period effectively began in May 2016.

21. The Tribunal has considered the applicant’s account carefully.  It records that it found the applicant to be credible and sincere in his evidence at hearing, which was in turn consistent with his written responses to the Department’s NOICC.  The bank statements relied upon by the applicant to demonstrate that he effectively continued in the same role in Ivanhoe Cakes even after it was sold to Frisina Corporation Pty Ltd on 1 February 2016 are somewhat ambiguous.  On the one hand, the applicant’s bank statements for the period December 2015 to June 2016 bear out his contention that he continued to be paid the same regular wage hence his belief that he was still working for the same business and employer.  On the other hand, the payee of the wages clearly changes from ‘Romanella’ to ‘Frisina’ as of February 2016 (and later to ‘Ivanhoe Cakes’) which is consistent with the change of ownership (and thus also of employer).  Having had the benefit of taking detailed oral evidence from the applicant on this point at hearing, the Tribunal gives the benefit of the doubt and accepts that the applicant was not aware that the business in which he was employed had been sold on 1 February 2016, and only learned of this in May 2016, following which the Tribunal accepts that he made efforts to resolve his situation by having Frisina Corporation Pty Ltd lodge a nomination in respect of him in June 2016.  The Tribunal also accepts that, for all intents and purposes, the applicant was working in the same role as a Pastry Chef for the same business, Ivanhoe Cakes, from 1 February 2016 to June 2016, despite its change of ownership.

22. The Tribunal further accepts that Frisina Corporation Pty Ltd subsequently withdrew its nomination in August 2016, and that this was beyond the control of the applicant.  It is satisfied that he continued to search for a new position through a job agency and was successful in this by late December 2016, when the nomination of him by Geo & Jam Pty Ltd was lodged with the Department.  That nomination was approved by the Department on 20 September 2017.

23. The Tribunal considers that the circumstances in which the breach arose did not involve deliberate or significant breaches by the applicant, and that he tried to secure a new nomination by an Australian employer in his original role of Pastry Chef and that a new nomination has now been approved by the Department.  These factors weigh in his favour.

    Past and present conduct by the applicant towards the Department

24. The Tribunal accepts that the applicant has been cooperative with the Department.

    If breach relates to breach of r.2.43(1)(la)…

25. This factor is not applicable in the present case.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the applicant becoming 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 applicant from making a valid visa application without the Minister’s intervention

26. While the Tribunal accepts that cancellation of a visa would normally result in a person becoming unlawful and subject to detention, the Tribunal is satisfied that the applicant has applied for, and been granted, bridging visas which are valid until the outcome of the Tribunal review.  Accordingly, it does not accept that indefinite detention is a possible consequence of cancellation, as a bridging visa would continue to be available to the applicant if he needed this to make arrangements to depart, or to lodge a judicial review application, in the event that the Tribunal review is unsuccessful.

27. The Tribunal accepts that, if the visa cancellation is affirmed, the applicant will be subject to s.48 of the Act, which significantly limits what future onshore applications he may be able to make (though in the Tribunal’s view, it does not affect his ability to apply for a visa offshore in future).

    Whether there would be consequential cancellations pursuant to s.140 of the Act

28. The Tribunal is satisfied that the applicant’s wife (the second named applicant) would be subject to consequential cancellation of his subclass 457 visas pursuant to s.140 of the Act if the decision to cancel the applicant’s subclass 457 visa is affirmed.

    Whether any international obligations would be breached as a result of the cancellation

29. The applicant did not raise any international obligations that he believed would be breached as the result of the cancellation and there is nothing before the Tribunal to indicate that cancellation would result in Australia breaching any of its international obligations.

    Any other relevant matter

30. The Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa.

31. Significantly, from the Tribunal’s point of view, the applicant’s subclass 457 visa would have expired on 23 August 2017 (had it not been cancelled earlier) – a date that has now passed.  Thus, the value of setting aside the Department’s cancellation is questionable, since there is no longer a visa to reinstate.

32. Nevertheless, as discussed above, the Tribunal has some sympathy for the applicant’s circumstances, in that it accepts he has established a life here over approximately 8 years for his young family, that the circumstances that led to the cancellation of his visa were essentially not within his control, that he has persisted in finding new employment and sponsorship/nomination in his profession, that the time taken by the Department to process Geo & Jam Pty Ltd’s nomination of him, and the Tribunal’s decision to await the outcome of this process, was not within the applicant’s control. Moreover, the Tribunal gives weight to the fact that his current employer wishes to retain the applicant’s services, and that the Australian Department of Employment national and Victorian skills shortage lists for 2016-2017 (published August 2017) both list Pastrycooks (especially qualified and experienced ones) as continuing to be in short supply.

33. The Tribunal notes that cl.457.211 provides that an onshore application can be made for a subclass 457 visa where an applicant does not hold a substantive visa provided he or she can meet the relevant Schedule 3 criteria. The Tribunal considers that the applicant in this case would be able to make an onshore application and seek to address these criteria if the cancellation is set aside. Although the ultimate outcome of such an application cannot be predicted, the Tribunal considers that it may have an arguable prospect of success, given the applicant’s visa history as set out in this decision, and the fact that the applicant is now the subject of an approved nomination by an approved standard business sponsor in his profession. It considers that this is a factor in favour of not affirming the cancellation in the particular circumstances of this case.

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

    DECISION

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

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

    Alison Mercer
    Member