Singh (Migration)

[2017] AATA 491

Singh (Migration) [2017] AATA 491 (23 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jasvinder Singh
Mrs Reena Rani BATTAN
Master Dhruv BATTAN
Master Rudransh BATTAN

CASE NUMBER:  1614234

DIBP REFERENCE(S):  BCC2016/2331477

MEMBER:Bruce Henry

DATE:23 March 2017

PLACE OF DECISION:  Brisbane

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 other applicants.

Statement made on 23 March 2017 at 4:33pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Sponsor went into liquidation – Applicant continued in same position for new business owners – Permission obtained from the Department to resume working – New owners obtained sponsorship and nomination

LEGISLATION

Migration Act 1958, s 116(1)(b), 140(1), 348

Migration Regulation 1994, Schedule 2 cl 457.223(4)(a), Schedule 4 Condition 4013, Schedule 8 Condition 8107
Corporations Act 2001 s 50AAA

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 31 August 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 first named applicant (the applicant) did not comply with a condition of his visa, condition 8107. The other applicants’ visas were automatically cancelled as a consequence of that cancellation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The visa of the other applicants, who are the applicant’s spouse and children, 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 that other 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 other applicant.

4. The applicants appeared before the Tribunal on 23 March 2017 to give evidence and present arguments.

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

6. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Background

8. The applicant was born in India in 1984 and is an Indian citizen. He arrived in Australia on 24 November 2007 as the holder of a subclass 573 visa valid until 30 September 2011. He was subsequently granted the subclass 457 visa that is the subject of these proceedings to enable him to work as a Cook (ANZSCO 351411) at the Galaxy Seafood and Mediterranean Restaurant at the Gold Coast.

9. The background to the matter is set out in the decision record of the delegate, a copy of which the applicant provided to the Tribunal:

   In a letter dated 30 June 2016, the Department received information from P.A.Lucas & Co. Charted [sic] Accountants, advising that Mr Singh had ceased employment with his sponsor, the Dahab Group, following insolvency of the sponsor by Order of the Federal Court on 19 February 2016.

   Given the above, it appears that Mr Singh does not currently hold a valid nomination and has not been employed in a nominated position for more than 90 days. As such, Mr Singh has not complied with condition 8107.

   Date notified of intention to consider cancellation:

   On 8 August 2016, Mr Singh was notified by registered post of the Department’s intention to consider cancellation under s116 of the Migration Act 1958 (the Act). The cancellation ground and reason for possible cancellation was set out in the notice and Mr Singh was
   invited to submit any comment he believed relevant to the consideration of the cancellation of his visa .

   Response received:

   On 17 August 2016, Mr Mofid Bebawy, migration agent to Mr Singh, responded to the notice with the following documentation:

   §  A 956 Form;

   §  Dahab Family Trust, Profit and Loss Statement dated July 2015 to June 2016;

   §  Email between Dahab Star to Mofid Bebawy, confirming superannuation to the employees of the Dahab Group;

   §  Confirmation of the business ABN number;

   §  A letter from the Dahab Group dated 12 July 2016;

   §  A letter from OMB Solicitors confirming that the Trustee for the Dahab Group was removed and a new Trustee was appointed;

   §  Dahab Family Trust Balance Sheet, as of June 2016;

   §  A Statutory Declaration, signed and dated by Mr Singh on 17 August 2016;

   §  Commonwealth Bank Statements for Mr Singh confirming salary payments from the Galaxy Seafood restaurant;

   §  A copy of the original Notice sent to Mr Singh;

   §  Mr Singh's Tax Return 2016;

   §  2016 Notice of Assessment;

   §  PAYG payment summary - year ending 30 June 2016; and

   §  Payroll Activity (Summary).

   On 18 August 2016, further email correspondence was received from Mr Bebawy, migration agent to Mr Singh. Attached to Mr Bebawy' s email was a bank statement for Dahab Star Pty Ltd for the period 20 November 2015 to 30 November 2015.

10. The delegate cancelled the visa, noting that there was no evidence that Dahab Star Pty Ltd was an associated entity (as defined by section 50AAA of the Corporations Act 2001) of the applicant’s sponsor, the Dahab Group Pty Ltd ATF Dahab Family Trust (trading as Galaxy Seafood Restaurant). The delegate also noted that the sponsor ceased trading in or around December 2015 and officially wound up on 19 February 2016.

11. The Tribunal has before it a copy of an approval as a standard business sponsor of Galaxy 1 Pty Ltd, a copy of a nomination by Galaxy 1 Pty Ltd of the applicant to work as a Cook (ANZSCO 351411), and other supporting documents. The representative stated in the submissions that the applicant’s visa was cancelled through no fault of his, as the sponsor and owner of the restaurant had gone into liquidation. He had continued to work in the nominated position at the restaurant until the cancellation of the visa.

12. At the hearing the applicant confirmed that the new owners of the restaurant, Galaxy 1 Pty Ltd, have nominated him to work in the same position at the same restaurant at which she was working under the previous sponsorship. After the cancellation of his visa he sought and obtained permission from the Department to resume working at the restaurant, and has continued to do so. He said that the new owner of the restaurant is a company that is not related either to the previous owner or to her previous migration agent.

13. The Tribunal also has before it evidence that the new sponsor and nominator, Galaxy 1 Pty Ltd, owns the Galaxy Seafood Restaurant.

    Does the ground for cancellation exist?

14. 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 the applicant’s visa was subject to condition 8107, which so far as it is relevant is attached to this decision.

15. The information contained in the delegate’s decision is that the liquidator of the applicant’s sponsor, Dahab Group Pty Ltd, advised the Department on 1 July 2016 that the company had ceased trading in December 2015. The Tribunal is satisfied that while the applicant has continued to work in the same position at the same restaurant since he was granted his subclass 457 visa, apart from a period after his visa was cancelled when he did not have permission to work, he ceased working in the nominated position when his sponsor ceased trading.

16. Accordingly, the Tribunal is satisfied that the applicant has ceased employment with his approved sponsor for more than 90 consecutive days, and thus finds that he has not complied with a condition of the visa.

17. 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

18. 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 generally has regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3. The current policy states, so far as is relevant to this case:

    Matters that should be considered 

    It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:

    ·The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

    ·The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.

    ·The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.

    ·The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing … As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

    ·The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

    ·Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

    ·Whether there are mandatory legal consequences to a cancellation decision – as three examples:

    §whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    §whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    §whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

    ·Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, – as two examples:

    §If there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - for more information, refer to:

    § Australia's international obligations and

    § PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of children. …

    ·Any other relevant matters.

19. In relation to these matters, the Tribunal makes the following findings:

    ·     The applicant came to and stayed in Australia to study and then work;

    ·     The applicant ceased working for his approved sponsor through no fault of her own;

    ·     The applicant continues to work in the occupation for which he was nominated at the same restaurant, which is under new ownership. He worked for Dahab Star Pty Ltd and subsequently for Galaxy 1 Pty Ltd, who have been approved as a standard business sponsor and have nominated him for a subclass 457 visa to work in the same position as a Cook at the restaurant;

    ·     The applicant has been in Australia since 2007, and there is no evidence before the Tribunal to suggest that he has otherwise breached his visa conditions or that he has ever been uncooperative with the Department;

    ·     Should the applicant’s visa be cancelled he and his family would have to depart Australia before applying for another subclass 457 visa sponsored by Galaxy 1 Pty Ltd, and his ability to return may be affected by an exclusion period pursuant to condition 4013 of Schedule 4 of the Regulations; and

    ·     The applicant and his family would suffer financial and emotional hardship as a result of a cancellation decision.

20. Balancing all these factors, the applicant was granted a subclass 457 visa which was to be in force for 4 years in the reasonable expectation of being employed by his original sponsor. For reasons beyond the control of the applicant, the original sponsor ceased trading, however he has continued to work in the same position at the same restaurant for the subsequent owners who have nominated him for a further subclass 457 visa.

21. In the Tribunal's assessment, the applicant and his family would suffer considerable hardship should their visas be cancelled. Given that the circumstances that gave rise to the cancellation were completely outside his control, and he has continued to work in the same position, the Tribunal is satisfied that the cancellation of his visa should be set aside.

    DECISION

22. 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.

23. The Tribunal has no jurisdiction with respect to the other applicants.

Bruce Henry

Member

ATTACHMENT

Extract from Migration Regulations 1994, Schedule 8:

8107

…

(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: …

(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

(aa) subject to paragraph (c), the holder must:

(i) if the holder was outside Australia when the visa was granted — commence work within 90 days after the holder’s arrival in Australia; and

(ii) if the holder was in Australia when the visa was granted — commence work within 90 days after the holder’s visa was granted; 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: …

(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); …