Sodhi (Migration)

[2021] AATA 432

Sodhi (Migration) [2021] AATA 432 (18 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaskamal Singh Sodhi

CASE NUMBER:  2012362

HOME AFFAIRS REFERENCE(S):          BCC2020/412198

MEMBER:Amanda Mendes Da Costa

DATE:18 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 18 January 2021 at 12.32pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 90 days – sponsoring business ceased trading – financial hardship – new employment offer – no nomination approval for the proposed position – compelling reasons – visa expired during review process – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 July 2020 made by a delegate of the Minister for Home Affairs 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) on the basis that he did not comply with subclause (3)(b) of Condition 8107 attached to the applicant’s visa. The delegate was not satisfied that the grounds for cancelling the visa outweighed the reasons for 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. The applicant appeared before the Tribunal on 8 December 2020 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 Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing, that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing and the applicant was offered the opportunity to provide the Tribunal with further documentation and submissions following the hearing.

5. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent, who also participated in the hearing.

7. 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

8. 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). 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?

9. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance subclause (3)(b) of Condition 8107 attached to the applicant’s visa. This condition requires that 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) and if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

10. The applicant was granted a Subclass 457 (Temporary Work (Skilled) visa on 23 August 2016 for a period of four years until 23 August 2020.

11. The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is Woodstock Hospitality Pty Ltd (the sponsor) whose nomination was approved on 23 November 2015.  The sponsor advised the Department that the applicant ceased employment with the company, effective 20 January 2019.

12. On 14 May 2020 the Department sent the applicant a Notice of Intention to Consider cancellation (NOICC) of the applicant’s visa on the basis that it had been informed that his employment with the sponsor ceased on 20 January 2019 and this indicated that he had not complied with subclause (3)(b) of Condition 8107 to his visa.

13. On 21 May 2020 the applicant provided the Department with a written response to its NOICC which included the following submissions:

    ·due to a change of owners, the business employing him experienced financial difficulties and ceased trading in mid-January 2019.

    ·his migration agent advised him that he would receive a letter from the Department and from the date of that letter, he would have 90 consecutive days to find a new sponsor.

    ·when he received the NOICC he realised that the 90 days commenced from the date he ceased working for his sponsor.

    ·a business named Amantran Pty Ltd is willing to lodge a new nomination for him.

    ·he requested the Department to grant him an extension so his new employer could lodge a new nomination for him.

    ·he had been experiencing financial hardship for more than one year.

14. On 11 June 2020 the Department requested the applicant to provide evidence of employment and a timeline of when his new employer was likely to lodge the new nomination application.

15. The applicant responded to this request (by email) on 17 June 2020 in which he advised that his new employment would commence on 22 June 2020.  He also attached an offer of employment from Amantran Pty Ltd trading as Amantran, which stated that he would commence employment with it on 22 June 2020 in the position of Cook, with an annual salary of $41,318.00.

    Applicant’s oral evidence

16. The applicant is aged 34 years and is a national of India.  He was born and educated in the Punjab region, where his parents and a sister continue to live.  The applicant is divorced and has no children.

17. The applicant travelled to Australia in order to study and obtain a “good qualification”.  After completing his studies, he successfully applied for his Subclass 457 visa and commenced employment after his visa was granted in August 2016 with his sponsor, Woodstock Pty Ltd.  The applicant continued in this employment until 20 January 2019.  Although employment as a Cook he was also required to undertake management tasks for the business.  Due to poor management, the business was not successful and ceased trading in January 2019, resulting in the applicant’s employment being terminated.

18. The applicant had been unable to find a further sponsor (despites numerous attempts) and since the cancellation of his visa by the delegate, had been the holder of a bridging visa which does not permit him to work in Australia.  The applicant told the Tribunal that as he was also ineligible for Centrelink benefits, he had been relying on his savings and financial assistance from his cousins, with whom he is living in Melbourne.

19. If the applicant’s visa is cancelled and he returns to India, he will live with his family and look for employment. Although he has an Australian qualification, he does not have any work experience in India.

20. The applicant has found the termination of his employment and the cancellation of his visa very stressful as it had not been as a result of his own poor behaviour, had resulted in him experiencing financial difficulties and had adversely affected his ability to work and make a success of his career in Australia. He described this time as potentially a “golden time” for him in Australia and he wants to have his future in Australia.  He had spent the last 11 years doing everything towards making a life for himself in Australia If he returns to India, he would need to start again.

21. Following the hearing, the Tribunal invited the applicant to provide any further documentation on which he relied.  The documentation provided by the applicant includes an offer of employment for the applicant and submissions dated 23 December 2020.

22. The offer of employment is from Amantran Pty Ltd trading as Amantran, which offers the applicant a full-time position as a Restaurant Manager.  This position is expressed to commence on  11 January 2021 (depending on the applicant’s visa status).  The Tribunal notes that there is no evidence before the Tribunal that the applicant’s proposed employer has obtained approval for a nomination for the proposed position for him.

23. The written submissions include the following:

    ·the applicant who has been residing in Australia since 2009 where he completed studies in automotive and hospitality fields.

    ·the applicant used his best endeavours to find another job after his employment with his sponsor, Woodstock Hospitality Pty Ltd.

    ·there are compelling and compassionate circumstances warranting the non- cancellation of the applicant’s visa.

    ·the applicant did not intentionally breach condition 8107(3)(b) attached to his visa, as the reason for ceasing his employment was beyond his control. 

    ·The owners of the business did not advise their employees (including the applicant) of their intentions.  Staff became aware of the closure of the business by the building owner and were not paid any salary for the last three weeks of work for the business.

    ·It is unreasonable to penalize the applicant due to the mistakes of his sponsor.

    ·One of the main reasons for the business of Woodstock Hospitality Pty Ltd ceasing to trade was that one of the business owners made an attempt on his own life and was subsequently hospitalised.

    ·The applicant was given little notice to obtain further employment, prior to his sponsor’s business ceasing trading.

    ·The applicant did not breach the other requirement of condition 8107, which requires the applicant to only work in the occupation and for the sponsor with the most recently approved nomination for the holder unless the visa holder’s occupation is specified in a relevant instrument.  Instead, the applicant decided to survive on his savings and financial assistance from his friends in Australia.

    ·Although there are “technically” reasons for the Tribunal to cancel the applicant’s visa under s.116(1)(g) of the Act, there are compelling reasons not cancel the visa.

    ·Due to receiving misinformation form his then migration agent, the applicant was under the incorrect impression that he would receive correspondence from the Department which would provide him with 90 days to find a new employer.

    ·The Department did not contact the applicant (about the cancellation of his visa) until May 2020, even though it was aware that the sponsor’s business had not been operating since January 2019.

    ·The applicant has been offered a position as Restaurant Manager by Amantran Pty Ltd, which operates an Indian Restaurant. This employer is ready to lodge a Subclass 482 nomination application but is waiting for the COVID-19 situation to settle before loading this application.  This new employer is in a genuine need to hire a Restaurant Manager on a full-time basis.

    ·The availability of this job depends on the applicant’s visa not being cancelled.  The employer has not been able to fill the position from the local labour market, which would adversely affect the business.

    ·If the applicant’s visa is cancelled, he may face financial hardship.  If the returns to India, he will not be able to support himself for a long time.

    ·If the applicant’s visa is cancelled and he leaves Australia, his prospective employer may step back from sponsoring him.

    ·The applicant will not be able to get any financial help from his family or friends if he returns to India.

    ·The applicant has always maintained health insurance for himself and therefore has always met condition 8501 attached to his visa.

    ·The applicant has been living in Australia for a significant period of time (11 years) and is well established in the community.  Further, the applicant is an upstanding person who has never committed a crime, either in India or Australia.  He poses no risk to the health, safety or good order of the Australian community or any individual.

    ·The applicant would have no negative impact on Australia’s international obligations if he is able to remain in Australia and has been forthcoming and co-operating with the Department throughout his visa applications and the cancellation process.

    ·In light of the above submissions, it is reasonable not to cancel the applicant’s visa.

    ·Significant weight should be given to the fact that the applicant did not have control over the circumstances of the cancellation, and he had no prior knowledge of his nominator’s misconduct, was missed by his employer and received unethical and negligent advice from his then migration agent.

    Findings regarding cancellation

24. The Tribunal is satisfied that the applicant was employed by the sponsor during the period June 2016 to 20 January 2019 as a Cook.  The Tribunal accepts the applicant’s evidence that he ceased this employment on 20 January 2019 when the sponsor ceased trading and the applicant has not gained further employment.  Since the period in which he has not been employed with another standard business sponsor exceeds 90 consecutive days, the Tribunal is satisfied that the applicant has not complied with subclause (3)(b) to Condition 8107 attached to his visa.

25. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

26. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    Purpose of the applicant’s travel and stay in Australia

27. The applicant is a national of India.  He initially arrived in Australia in 2009 in order to study and was subsequently granted a Subclass 457 (Temporary Work (Skilled)) visa on 23 August 2016 for the purpose working in Australia for his sponsor Woodstock Hospitality Pty Ltd.  This employment has ceased, and the applicant has not been employed by Woodstock Pty Ltd or another sponsor for a period in excess of 90 consecutive days.

28. The Tribunal further notes that the applicant’s Subclass 457 visa would, but for the cancellation, have ceased on 23 August 2020 in any case.  It follows that the outcome of any potential nomination application for a different visa subclass would not make it possible to reinstate his Subclass 457 visa.

29. The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations  The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal finds that this purpose is no longer exists as the applicant ceased working for his sponsor in January 2019.  

30. The Tribunal places significant weight on this consideration supporting the Tribunal exercising its discretion to cancel the applicant’s visa.

    Extent of the visa holder’s compliance with visa conditions

31. There are no known instances of non-compliance with visa conditions, apart from the applicant’s instances of non-compliance with condition 8107.

32. The Tribunal gives this consideration some weight in favour of not exercising its discretion to cancel the applicant’s visa.

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

33. The Tribunal accepts that if the applicant’s visa is cancelled and he returns to India, he will suffer a degree of emotional hardship, given that he has invested a great deal to time and effort in establishing his life and career in Australia over the past 10 years.  The Tribunal further accepts that the applicant will also suffer financial hardship if he is required to return to India – both in the cost of relocation and the lack of any employment.  However, the Tribunal has also taken into account that the applicant is able to live with his parents and obtain some financial support from them.  Given the applicant’s qualifications and experience in the hospitality industry in Australia, the Tribunal is satisfied that he will be able to obtain employment in India.

34. The Tribunal accepts that the applicant may be required to depart Australia in order to apply for a Subclass 482 visa.  The Tribunal is satisfied that the applicant will not be prevented by Public Interest Criteria (PIC) 4013 from applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has an approved nomination in relation to the applicant.

35. The Tribunal notes that the applicant advised the Department in his written response to the NOICC that another business (Amantran Pty Ltd) was willing to lodge a new nomination for him and provided the Department with an offer of employment from the company.  However, there is no evidence before the Tribunal which indicates that Amantran Pty Ltd has applied for or been granted nomination approval of a position for the applicant.

36. Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently.

37. The Tribunal gives this consideration significant weight in favour of not exercising its discretion to cancel the applicant’s visa.

    Circumstances in which the ground of cancellation arose

38. The Tribunal accepts that prior to the cancellation of the applicant’s visa, he was employed as a Cook by his sponsor Woodstock Hospitality Pty Ltd, which was a standard business sponsor with an approved nomination for the applicant.  

39. The Tribunal accepts that the circumstances in which the ground for cancellation arose are not the result of any behaviour by the applicant and are to that extent beyond his control; nevertheless, it is in the context of a temporary visa for a specific purpose which has now ceased.

40. The applicant ceased employment at the sponsoring business in January 2019 when it ceased trading.  The Department did not proceed with the visa cancellation until 28 July 2020.  The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with an alternative business sponsor who successfully nominated the applicant for the position within its business.

41. The Tribunal places considerable weight on this consideration supporting the Tribunal exercising its discretion to cancel the applicant’s visa.

    Past and present behaviour of the visa holder towards the Department

42. The Tribunal accepts that the applicant’s behaviour towards the Department and its staff has been cooperative and that he replied to the NOICC and other requests for information in a timely manner.

1. The Tribunal gives this consideration some weight in favour of not exercising its discretion to cancel the applicant’s visa.

   Whether there would be consequential cancellations under s.140

2. The applicant is divorced and has no children.  Accordingly, the Tribunal is not satisfied that there would be any consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled.

3. The Tribunal does not give this consideration any weight, either in supporting the Tribunal exercising its discretion to cancel the applicant’s visa or in favour of not cancelling his visa.

   Whether there are mandatory legal consequences, such as whether cancellation of the visa would result in the visa holder being unlawful and liable to detention or whether indefinite detention is possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

4. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained.  There is no suggestion that he will be detained indefinitely because as an Indian citizen he will be able to return to India.  The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications.

5. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.

6. The Tribunal gives this consideration some weight in favour of not exercising its discretion to cancel the applicant’s visa.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

7. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations.  These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR).

8. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.  The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

9. The Tribunal does not give this consideration any weight, either in supporting the Tribunal exercising its discretion to cancel the applicant’s visa, or in favour of not cancelling his visa.

   The impact on any victims of family violence

10. There is no evidence before the Tribunal to suggest this is a relevant consideration.

11. Accordingly, the Tribunal does not give this consideration any weight, either in supporting the Tribunal exercising its discretion to cancel the applicant’s visa, or in favour of not cancelling his visa.

    If the visa is a permanent one, whether the visa holder has strong family, business or other ties in Australia

12. As the applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration, either in supporting the Tribunal exercising its discretion to cancel the applicant’s visa, or in favour of not cancelling his visa.

    Any other relevant matters

13. Having no evidence to indicate otherwise, the Tribunal accepts the applicant’s claims that he is a person of good character and has obtained a positive skills assessment for the occupation of Cook.

14. The Tribunal gives these considerations some weight in favour of not exercising its discretion to cancel the applicant’s visa.

    Findings

15. Having regard to the above findings, and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the applicant’s visa outweigh the reasons for not cancelling the visa.  The Tribunal is satisfied that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

    Amanda Mendes Da Costa
    Member