SONI (Migration)

[2017] AATA 764

SONI (Migration) [2017] AATA 764 (16 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chirag Indravadanbhai Soni
Mrs Hetal Jayant Vajani

CASE NUMBER:  1617163

DIBP REFERENCE(S):  BCC2016/2905338

MEMBER:Katie Malyon

DATE:16 May 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision 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 16 May 2017 at 1:00 pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Applicant ceased sponsored employment over 90 days – Unfair dismissal claims against new business owner – New employer without sponsorship nomination – Nomination application refused for new employer – New child born

LEGISLATION

Migration Act 1958, ss 116, 140, 348

Migration Regulation 1994, Schedule 2, cl 457.223(4)(a), Condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Drake v MIEA (No 2) (1979) 2 ALD 634
Qiao v MIAC [2008] FMCA 380
Hneidi v MIAC [2010] FCAFC 20

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 October 2016 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) of the first named applicant, Mr Chirag Soni, under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled Mr Soni’s visa under s.116(1)(b) of the Act on the basis that he did not comply with condition 8107 that was imposed on his Subclass 457 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. A copy of the delegate’s decision was provided to the Tribunal.

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 Mr Soni. The second named applicant, Mrs Hetal Jayant Vajani, is his wife. Her Subclass 457 visa was automatically cancelled as a consequence of the cancellation of Mr Son’s Subclass 457 visa, 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) of the Act, the Tribunal has no jurisdiction with respect to Mrs Vajani.

4. Mr Soni appeared before the Tribunal on 13 January 2017 to give evidence and present arguments.  The Tribunal also received brief oral evidence from Mrs Vajani.  During the hearing, the Tribunal endeavoured to take oral evidence from the Managing Director of Mr Soni’s prospective sponsor and employer Nik’s Indian Restaurant Pty Ltd (Nik’s), Mr Nikhil Sachdev.  However, Mr Sachdev was not available.  He called the Tribunal after the hearing.  After taking evidence from Mr Sachdev, the Tribunal then scheduled a further hearing with Mr Soni for 26 April 2017: however, this hearing did not proceed owing to Mr Soni’s inability to attend for medical reasons.  The Tribunal rescheduled a further hearing to be held on 2 May 2017: however, this hearing did not proceed as Mr Soni advised the Tribunal late on the afternoon before the hearing that he would not be attending as he had moved to Adelaide.  The Tribunal then scheduled a further hearing to be held by teleconference on 16 May 2017.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. As outlined in the delegate’s decision, a copy of which was provided to the Tribunal, Mr Soni’s Subclass 457 visa was granted on 21 May 2013 for a period of 4 years on the basis of an approved nomination in the occupation of Cafe or Restaurant Manager with his original sponsor Polly Bar Pty Ltd (Polly Bar).  After working with Polly Bar for approximately 22 months, the business was sold to The Roy Pty Ltd (The Roy).  Mr Soni was successfully nominated by The Roy for the same position.  The Roy’s nomination was approved on 27 May 2015. 

7. After working with The Roy for 2 months, Mr Soni was asked to leave as there were some issues with the new management.  The delegate’s decision notes the Department received notice from The Roy that Mr Soni left the company’s employment on 4 June 2015.  Thereafter, Mr Soni secured an offer of employment with GT Soni & Sons Pty Ltd trading as Krishna Café & Indian Restaurant (Krishna).  However, although Krishna’s sponsorship application was approved the nomination application was refused and, despite a new nomination application being lodged, it was subsequently withdrawn by Krishna. 

8. On 21 September 2016, the Department issued Mr Soni a notice of intention to consider cancellation (NOICC) of his Subclass 457 visa on the basis that he may have breached condition 8107 as more than 90 consecutive days had passed since he ceased employment with The Roy, the sponsor that had most recently nominated him.

9. Mr Soni responded to the NOICC on 6 October 2016. He indicated that he had secured an offer of employment as Cook with Nik’s and, further, both a sponsorship and nomination application had already been lodged. Mr Soni added that, prior to working as a Cafe or Restaurant Manager with Polly Bar and The Roy, he had worked as a Cook for about 4 years with various prestigious hospitality companies in Melbourne including: Delaware North, the major catering company at Etihad Stadium; Create Concept at Flemington; Artistic Catering based in Richmond which catered for events including weddings, conferences and private parties; and, a number of restaurants including Chimmy’s Café and Stone Ground Produce. The delegate proceeded to cancel Mr Soni’s visa under s.116(1)(b) of the Act on the basis that he did not comply with condition 8107 that was imposed on his Subclass 457 visa.

   Relevant law

10. 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. Relevant to this case, these include the ground set out in s.116(1)(b) of the Act. 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?

11. A visa may be cancelled under s.116(1)(b) of the Act if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this case, visa condition 8107 attached to Mr Soni’s Subclass 457 visa.

12. Since Mr Soni’s Subclass 457 visa was granted under cl.457.223(4) of Schedule 2 of the Regulations, visa condition 8107(3) is applicable.  This requires Mr Soni to work only in the occupation listed in the most recently approved nomination in relation to him, and only in the business of his sponsor, or an associated entity.  In addition, if he ceases employment, the period during which he ceases employment must not exceed 90 consecutive days.  There is an exception which includes certain specified occupations not applicable in this case.

13. Mr Soni’s Subclass 457 visa was granted on 21 May 2013 for a period of 4 years on the basis of an approved nomination in the occupation of Cafe or Restaurant Manager with his sponsor Polly Bar.  He told the Tribunal that he worked there for about 2 years.  When the business was sold to The Roy he worked at the same venue in the same occupation of Cafe or Restaurant Manager but the new owners asked him to do 2 jobs and he refused to do so.  Further, he said the new management at The Roy told him they were not satisfied with his work.  Asked by the Tribunal whether he sought advice from an employment lawyer or the Fair Work Ombudsman in relation to his claim that The Roy requested he work 2 jobs, Mr Soni said he did not.  He also did not contact the Department.  Mr Soni told the Tribunal that The Roy then terminated his employment.  He confirmed that termination of his employment was effected more than 18 months before the initial hearing on 13 January 2017, that is, sometime before July 2015.

14. As more than 90 consecutive days have passed since Mr Soni ceased employment with his sponsor, The Roy, the Tribunal finds that Mr Soni has breached condition 8107(3)(b) attached to his Subclass 457 visa.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

16. 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 Mr Soni’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’.

17. In exercising its power to cancel a visa, the Tribunal should have regard to policy as a relevant consideration.  However, policy is not binding on the Tribunal.[1]  The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or (in the case of the exercise of a discretionary power, as in this matter) the preferable decision.[2]

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

    [1] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380  

    [2] See Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jaocobson JJ) at [34]

18. Mr Soni told the Tribunal that he originally came to Australia from India in September 2007 to study.  He has completed a Diploma in Commercial Cookery and then an Advanced Diploma of Hospitality at Meridian International Hotel School in Melbourne.  Mr Soni said he has been working for more than 8½ years in a range of restaurants and catering facilities consistent with the conditions attached to his Student Subclass 572 visas.  The Tribunal notes that, following completion of his tertiary studies in Australia, Mr Soni has provided a favourable skill assessment from Trades Recognition Australia dated 9 February 2009 for his occupation of Cook ASCO 4513-11.  Subsequently, he was sponsored on a Subclass 457 visa by Polly Bar and then The Roy for a period of 4 years expiring 21 May 2017.

19. The Tribunal notes that the purpose of a Subclass 457 visa is for holders of that visa to work for an approved sponsor in an approved nominated occupation.  Since Mr Soni’s employment with his sponsor The Roy was terminated sometime before July 2015 the purpose of his Subclass 457 visa has come to an end.  Two nominations by approved sponsor Krishna were lodged: however, one was refused and a subsequent application was withdrawn.  Furthermore, although a sponsorship and nomination application were lodged with the Department by Nik’s in October 2016, Mr Soni advised the Tribunal in writing on 1 May 2017 that both applications have been withdrawn.  He confirmed this in evidence to the Tribunal on 16 May 2017.  The Tribunal has established Nik’s applications were withdrawn on 7 February 2017.  Significantly, Mr Soni’s Subclass 457 visa would have expired on 21 May 2017, that is, in less than 5 days.  He told the Tribunal states that he and his family have moved from Sydney to Adelaide because there are genuine employers there willing to sponsor him, including under the Regional Skill Migration Scheme (RSMS) for permanent residence.  However, he confirmed no new nomination application has been lodged. 

20. Based on evidence provided, Mr Soni does not have an offer of employment from a new sponsor who is prepared to nominate him for an approved occupation. 

21. These considerations cumulatively weigh strongly in favour of cancelling his visa.

    Extent of compliance with visa conditions, now and on previous occasions

22. The Tribunal discussed condition 8107 with Mr Soni at the initial hearing on 13 January 2017.  He explained that, since he was dismissed by The Roy, he has been pursuing employment with other sponsors prepared to nominate him for an approved occupation and take over sponsorship of his Subclass 457 visa. 

23. The Tribunal accepts the situation Mr Soni finds himself in arose because the business of his initial sponsor, Polly Bar, was sold to The Roy and he found himself in a position where, when asked by the new owners of the business to work 2 jobs and he refused to do so, he had a falling out with management such that it led to termination of his employment.

24. Mr Soni told the Tribunal that since stopping work with The Roy in mid-2015 he did not start work again until 28 November 2016 when he was granted work rights on his Bridging E visa following cancellation of his Subclass 457 visa.  He started work then with Nik’s.  In this regard, the Tribunal notes he has not compounded his breach of visa condition 8107(3)(b) of ceasing to work for his approved sponsor for a period of more than 90 days by commencing work with another employer without approval.  Mr Soni told the Tribunal he was very aware that he could not start work with anyone else until a new nomination was approved.  With his wife pregnant and now having a young child to support he said this has been a very stressful time as he has had to rely on friends for financial support totalling in the order of $15,000.  He named his 4 friends who have provided financial help and the amount of money he owes each of them.  Mr Soni also provided the Tribunal with his wife’s CBA credit card statement confirming she has 51 cents credit.

25. In relation to Mr Soni’s earlier Student visas there is no evidence before the Tribunal indicating that he did not comply with conditions attached to those visas.  

26. The Tribunal is satisfied that its consideration of the extent of Mr Soni’s compliance with visa conditions, now and on previous occasions, is not a reason to make a decision not to cancel Mr Soni’s Subclass 457 visa.

    Degree of hardship 

27. The Tribunal has also considered the hardship that may be caused if Mr Soni’s Subclass 457 visa is cancelled.  Although he has pursued online applications for employment as a Café or Restaurant Manager or as a Cook nominated by a business prepared to take over sponsorship of his Subclass 457 visa he said that, in the case of both Krishna and Nik’s, it did not work out. 

28. After the last nomination (by Nik’s) was withdrawn Mr Soni said he moved to Adelaide because, in his opinion there are genuine employers willing to sponsor him under the RSMS scheme or he is hopeful of filing a Subclass 190 Skilled application nominated by the South Australian government.  In a letter to the Tribunal he said he spent nearly 10 years of what he calls golden time in Australia, paid tax here, has no criminal record and is otherwise a good citizen and now has a wife as well as a young son to support.  His parents in India are retired and it was planned that, one day, he would be able to support them working in Australia.  Evidence of some Western Union transfers of funds to Mr Soni’s parents in Gujrat, India were provided to the Tribunal.  When discussing with the Tribunal the impact of cancellation of his Subclass 457 visa, Mr Soni said he knows he has breached a condition attached to his Subclass 457 visa but the circumstances that led to that happening were not his fault. 

29. While the Tribunal accepts that Mr Soni and his family leaving Australia would involve some emotional hardship, it is nonetheless of the view that any hardship would not be significant given the qualifications and employment experience Mr Soni has gained in Australia and the fact that he still has family in India. 

30. The Tribunal gives little weight to these considerations in favour of not cancelling the visa.

    The circumstances in which the ground for cancellation arose  

31. The circumstances giving rise to the Department’s cancellation of Mr Soni’s Subclass 457 visa on 13 October 2016 arose from termination of his employment with The Roy before July 2015 and the related delay in providing documentation requested by the Department regarding approved sponsor Krishna’s first nomination.  In a submission lodged with the Tribunal dated 12 January 2017, Mr Soni acknowledges that Krishna started the procedure to nominate him on 25 September 2015, “just a few days over the 90 days” since his employment ceased with The Roy.  The delay, he explained, was due to Krishna waiting for a lease of its new premises.  As a result of that delay, the nomination was refused by the Department and a subsequent application by Krishna was withdrawn.

32. Immigration policy indicates that, as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose was beyond the visa holder’s control.  In this regard, the Tribunal accepts that Mr Soni’s cessation of employment with The Roy was beyond his control. 

33. The Tribunal gives weight to these considerations in favour of not cancelling the visa.

    Visa holder’s past and present behaviour towards Department

34. On the 28 September 2016 when Mr Soni received the NOICC, he responded on the same day and requested a 5 day extension to provide a response.  Mr Soni responded to the NOICC on 6 October 2016 noting that a new sponsorship and nomination application had been lodged by Nik’s for the position of Cook.  He gave evidence that he has always been co-operative with the Department.  There is nothing before the Tribunal to suggest that this is not the case. 

35. The Tribunal gives little weight to these considerations in not cancelling the visa.

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

36. Mr Soni told the Tribunal that his wife is a housewife and now looks after his son, who was born on 7 July 2016.  As noted above, his wife’s Subclass 457 visa was cancelled as a result of cancellation of Mr Soni’s visa.  Mr Son’s son has not been included in his review application to the Tribunal and, accordingly, the Tribunal has no jurisdiction in relation to his baby son. 

37. Mrs Vajani told the Tribunal she found out she was pregnant about the time her husband was finalising the offer from Krishna that led to lodgement of the sponsorship application which was approved.  There is no evidence before the Tribunal to suggest that Mr Soni’s wife and young son would not stay together as a family in the event that Mr Soni’s Subclass 457 visa is cancelled.

38. The Tribunal gives little weight to consideration of Mrs Vajani’s consequential cancellation under s.140 of the Act in not cancelling Mr Soni’s visa.

    Whether there are mandatory legal consequences to a cancellation decision

39. The Tribunal finds that cancellation of Mr Soni’s Subclass 457 visa could result in him being unlawful if he does not leave Australia in the permitted time such that he may thereby be detained at a Detention Centre.  The Tribunal gives little weight to this consideration in not cancelling the visa. 

40. Mr Soni currently holds a Bridging E visa allowing him to remain lawfully in Australia (with work rights) and, should he wish to apply for another visa from overseas, he will not be subject to a penalty under Public Interest Criterion 4013 since, based on Departmental records, he was granted his Bridging E visa on 18 October 2016, that is, just 5 days after the Department’s cancellation of his Subclass 457 visa.  The Tribunal gives no weight to this consideration in not cancelling the visa.

    Whether obligations under international agreements would be breached

1. There is nothing to suggest that any international obligations would be breached as a result of cancellation of Mr Soni’s Subclass 457 visa.  The Tribunal gives no weight to this consideration in not cancelling the visa.

   Other considerations

2. The Tribunal has considered Mr Soni’s evidence that he has lived in Australia since 2007 and that he has obtained his qualifications as a Cook as well as Café or Restaurant Manager from an Australian tertiary institution.  The Tribunal notes glowing references of Mr Soni’s work have been provided from a range of establishments including: Barbotine in Fitzroy; Fiesta Mexican Restaurant in South Yarra; and, Delaware North Companies. In addition, Mr Soni has provided assorted Certificates congratulating him for his work during the 2009 Australian Open and the Spring Racing Carnival 2008.

3. Mr Soni indicated to the Tribunal that he wishes to pursue his career as a Cook in Australia as there is nothing for him in India because Cooks are not valued there.  His aim is to secure permanent residence one day and open a restaurant in South Australia.  This would enable him to give jobs to 6 - 10 Australian citizens.  He also notes that his son was born in Australia and he wants to give him the best opportunity of a life here.

4. Having considered all of the circumstances in this case and the evidence before it, the Tribunal is persuaded that the evidence in favour of cancelling Mr Soni’s Subclass 457 visa outweighs that in favour of not cancelling his visa.  For these reasons, the Tribunal concludes it should exercise its discretion to affirm cancellation of Mr Soni’s Subclass 457 visa. 

   DECISION

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

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

   Katie Malyon

   
   Member