SRITAWAN (Migration)

[2019] AATA 849

SRITAWAN (Migration) [2019] AATA 849 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr WUTICHAI SRITAWAN

CASE NUMBER:  1813507

HOME AFFAIRS REFERENCE(S):           BCC2018/469843

MEMBER:Mr S Norman

DATE:24 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 24 January 2019 at 10:25am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – made attempts to find another sponsor – new nomination applications lodged – breach of condition outside the applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant was determined to have breached condition 8107(3)(b) (discussed below). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Pakping PICHETPONGTHORN (who is sponsoring the applicant for a Subclass 482 visa). The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b) 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?

6. 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 condition 8107 attached to the applicant’s visa. Relevant to this case, condition 8107(3)(b) stated:

   8107 … (3) … (b)  if the holder ceases employment--the period during which the holder ceases employment must not exceed 90 consecutive days; … 

7. The Tribunal notes that changes to condition 8107 made on 19 November 2016, reduced the time period that the holder of a Temporary Business Entry (class UC) Temporary Work (Skilled) (Subclass 457) visa can remain in Australia after ceasing employment with their sponsor from 90 days to 60 days. This amendment applies to visas granted on or after 19 November 2016[1]. The present applicant has 90 days, as his Subclass 457 visa was granted prior to 19 November 2016. 

   [1] Condition 8107(3) amended by Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016 (F2016L01696).

8. That being said, the applicant was granted a Subclass 457 visa on 12 March 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 5 April 2018, the applicant was advised that information before the Department indicated he had not complied with condition 8107(3)(b) which was attached to his visa. It was advised that in particular the applicant had not complied with condition 8107(3)(b).  

9. On 13 May 2017, the Department had received advice stating the applicant had ceased employment with his approved sponsor (Rose Garden Thai Restaurant P/L – in Berry NSW), on 6 May 2017. The delegate noted that at the time of their decision, the applicant did not currently hold a valid nomination and had not been employed in a nominated position for more than 90 days. The delegate (and the Tribunal) noted the nominated occupation was not one specified in a relevant instrument referred to in condition 8107(3A) which would have exempted the applicant from having to comply with the requirements in condition 8107(3)(a). Therefore, while the applicant continues to hold the Subclass 457 visa they can only lawfully work in Australia for either the sponsor or an associated entity of the sponsor. Based on the evidence before them, the delegate (and now the Tribunal) noted the applicant had not complied with condition 8107(3)(b) which had been imposed on the grant of his Subclass 457 visa. The applicant was then advised their Subclass 457 visa may be cancelled pursuant to s.116(1)(b) of the Act.

10. In the response to the NOICC dated 18 April 2018, the applicant did not dispute there were grounds for cancelling the visa. When discussed at hearing, the Tribunal is also satisfied the applicant did not dispute there were grounds for cancelling the Subclass 457 visa.

11. For the reasons set out above, 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), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

12. 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’.

13. Regarding the purpose of the applicant’s stay in Australia, by submissions dated 15 November 2018[2] the applicant said he initially travelled to Australia to study in 2008. He had then obtained qualifications in cookery and was sponsored for the Subclass 457 visa. The Tribunal notes the applicant had subsequently been granted a Subclass 457 visa for the purpose of filling a skill shortage in Australia and to work for an approved sponsor in a skilled occupation for which he was specifically nominated to work and which could not be filled from within the Australian workforce. The nominating sponsor (the Rose Garden Thai Restaurant P/L),whose nomination was approved on 12 March 2015, had requested the applicant work for them in the nominated position of Cook (ANZSCO: 351411). Therefore, for the purpose of the applicant’s stay in Australia, he was to work as a Cook on a temporary basis with the nominating sponsor. However, the applicant ceased employment with his nominating sponsor on 6 May 2017 and had then remained in Australia and attempted to find another nominating sponsor in the time allowed. Be that as it may, after considering the applicant’s evidence (both in writing and at hearing), the Tribunal is satisfied he attempted to stay in Australia for the purpose allowed by his Subclass 457 visa.

    [2] Tribunal – from folio 62.

14. Next, though not fully set out herein, both in writing and at hearing the applicant detailed the efforts he had made to regularise his migration status on ceasing his employment with his (now former) sponsor. For instance, in his response to the NOICC letter, the applicant set out parts of his work history (in Thailand and Australia). He also said he travelled to Melbourne (from Sydney) in search of work that did not eventuate, and that he was now ‘out of pocket’. Also, a visa cancellation would ‘compel him to depart Australia’.

15. By submissions dated 15 November 2018,[3] it was said there was no other evidence of non-compliance (other than that discussed herein). It was also said the applicant was aware he had 90 days to find a new sponsor (after ceasing work with his former sponsor); and he had made attempts to find another sponsor (discussed above).

    [3] Tribunal – from folio 62.

16. Amongst other things, it was also said the applicant had commenced working at a new restaurant in August 2017, and a new nomination approval had been lodged. It was claimed the applicant had no control over this process. It was said that when his Subclass 457 visa was cancelled on 3 May 2018, the applicant was the subject of a nomination which was in process and this was for another temporary work visa to work as a cook at the Leaf in Berry restaurant.[4] The agent then said the nomination had been approved and remained current. The agent then referred to the degree of difficulty in finding experienced and reliable Cooks in (particularly regional) Australia.

    [4] Tribunal – folio 61.

17. After considering the evidence, the delegate (and now the Tribunal) accepted the applicant had been actively and consistently looking for another employer to nominate him under the Subclass 457 visa program. However, it had been more than 10 months since the applicant ceased his employment for his former sponsor (on 6 May 2017), at the time of the delegate’s decision.

18. Regarding the degree of hardship the applicant or his family may suffer if his Subclass 457 visa is cancelled, in his response to the NOICC letter, the applicant said the cancellation of his visa would ‘compel him to depart Australia’. The Tribunal accepts the applicant or his family would suffer some financial or other hardship if his visa was cancelled.

19. Next, the Tribunal has no evidence the applicant has been unco-operative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

20. Next, the Tribunal accepts that if the applicant’s visa is cancelled, he would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However based on the information before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. I also note the applicant may (temporarily) retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing Australia.

21. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act and would have limited options to apply for further visas in Australia. After considering PIC 4013 (Parts 1 & 2), the Tribunal understands the applicant is not subject to the risk factor identified in that public interest criteria.  

22. Next, and by submissions lodged with the Tribunal on 26 November 2018,[5] the applicant provided:

    ·Evidence of pay from ‘I Beleaf Pty Ltd T/A Leaf in Berry’ (for the period 2/07/2018 – 11/11/2018[6])

    ·A PAYG payment summary – individual non-business to 30/06/2018[7]

    [5] Tribunal – from folio 81. 

    [6] Tribunal – from folio 73 (reverse side).

    [7] Tribunal – folio 63.

23. In the response to the NOICC, it was also claimed that a possible sponsor for the applicant (Ms Pakping PICHETPONGTHORN – I Beleaf P/L – t/a Leaf in Berry[8]) contacted the Department in January (2018) to inquire about the possibility of transferring the 457 sponsorship for the applicant to her business. By agent submissions dated 15 November 2018,[9] it was claimed this new sponsor (discussed below) was also consulting with medical specialists in relation to ongoing health issues and that is why she was unable to organise the nomination transfer process in a more timely manner (evidence of health issues were lodged). Evidence subsequently lodged also indicated that Ms PICHETPONGTHORN’s restaurant was an award winning restaurant in the tourist village of Berry, south of Sydney. The delegate also noted that the skilled occupation of Cooks is recognised as being in short supply, particularly in regional NSW; and that Berry is located in the far south coast region of NSW.

    [8] Department – folio 28.

    [9] Tribunal – from folio 62.

24. When this was discussed at hearing, the Tribunal noted that a nomination application for ‘I Beleaf P/L’, relating to a Subclass 482 visa, had been lodged on 6 April 2018 (before the applicant’s Subclass 457 visa was cancelled by the Department). The visa applicant identified was the applicant in this case. That nomination application had been approved by the Department on 13 June 2018.[10] However, the Tribunal understood the applicant was not allowed to lodge the related Subclass 482 visa application, as he was prevented from doing so by s.48 of the Act (as his Subclass 457visa had been cancelled under s.116(1)(b)). Next, on 14 January 2019, a second nomination application was lodged, this time by ‘We Beleaf P/L’. The visa applicant identified was again the applicant in this case. The I Beleaf P/L restaurant operated in Berry NSW; and the We Beleaf P/L restaurant operated in Nowra NSW.

    [10] Tribunal – folio 58.

25. At hearing, Ms PICHETPONGTHORN explained that she had been the chef in the I Beleaf P/L restaurant in Berry NSW for approximately two years, and for the following four years, she had been engaged in that restaurant, principally as the Director (engaged in managing staff employed to prepare foods, engage tradesmen to repairs machinery, purchase machinery, train staff, advertise the business etc). Ms PICHETPONGTHORN’s business partner had managed the ‘wait staff’ and the finances (though an independent accountant was also engaged). However, and in approximately April 2016, Ms PICHETPONGTHORN and her business partner also commenced to operate a second restaurant (in Nowra NSW – We Beleaf P/L). Both Ms PICHETPONGTHORN and her (then) business partner, were then engaged in similar roles for the two restaurants. In late 2018, Ms PICHETPONGTHORN and her business partner decided to separate their businesses. The business partner was to take over the I Beleaf P/L restaurant (in Berry NSW – and for which Nomination Approval was granted on 13 June 2018); and Ms PICHETPONGTHORN was to take over the We Beleaf P/L restaurant (in Nowra NSW).

26. Further, though the nomination approval application lodged by the I Beleaf P/L restaurant was approved by the Department on 13 June 2018, and the applicant had been working there as a chef/cook from at least early 2018, he ceased working at the I Beleaf P/L restaurant (in Berry NSW) in December 2018; and he commenced working for the We Beleaf P/L restaurant (in Nowra NSW), from around 12 December 2018. The nomination application lodged by the We Beleaf P/L business on 14 January 2019 (some three days prior to the Tribunal hearing), has not yet been considered by the Department.

27. After discussing the evidence at hearing, the Tribunal was satisfied that Ms PICHETPONGTHORN had substantial experience in co-owning and operating a successful restaurant (in Berry NSW). Further, the financial information lodged by the We Beleaf P/L restaurant (in Nowra NSW[11]), indicated that business, which only commenced in April 2016, was operating at a small profit as of 30 June 2018.

    [11] Tribunal – from folio 93.

28. That being said, the Tribunal accepts:

    ·     the applicant was granted the Subclass 457 visa on 12 March 2015

    ·     his breaching condition 8107(3)(b) was not materially the fault of the applicant

    ·     that the applicant then made active and consistent attempts to regularise his migration status, but that he was not (at least initially) successful in obtaining a new sponsor

    ·     the applicant was then identified as the visa applicant in a new nomination application lodged by I Beleaf P/L, and which application had been approved by the Department on 13 June 2018 (and at which restaurant he commenced working in early 2018)

    ·     that the health of the applicant’s new sponsor had (initially) prevented the pursuit of the nomination application lodged by I Beleaf P/L

    and:

    ·     that the owner and operator of the We Beleaf P/L restaurant in Nowra NSW (Ms PICHETPONGTHORN), appears to have substantial experience in successfully operating the Berry restaurant (along with her former partner); and the Nowra restaurant since April 2016 (though Ms PICHETPONGTHORN is now the sole owner/operator of the Nowra restaurant since December 2018).

    ·     that the applicant had commenced working at the We Beleaf P/L restaurant in Nowra NSW from around 12 December 2018;

    ·     that a nomination application had recently been lodged by We Bealeaf P/L, naming the applicant as the visa applicant; and

    ·     the evidence considered supports the conclusion that chefs (cooks) can be difficult to engage in regional NSW.[12]

    [12] Including but not limited to, ‘Reality bites: shortage of chefs hits restaurant industry growth’, The Australian, 29 August 2015, accessed 17 January 2019; and ‘Australia needs to fix its hospitality reputation before infrastructure boom’, news.com.au, 21 May 2018, accessed 17 January 2019.  

29. As stated at the hearing, the Tribunal notes the applicant will be in breach of condition 8107(3)(b) if the decision to cancel his Subclass 457 visa is set aside. However, unless the decision to cancel his Subclass 457 visa is set aside, he could not lodge a Subclass 482 visa application. Further, and given the applicant has been identified in two prior successful nomination applications, and given he was previously granted a Subclass 457 visa as a Cook (the job he performs at the We Beleaf P/L restaurant in Nowra NSW), and given the Tribunal is satisfied the breach of condition 8107(3)(b) may have been outside the applicant’s control (which was also accepted by the delegate[13]), I have decided not to exercise the discretion to cancel the applicant’s Subclass 457 visa.

    [13] Department –folio 37.

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

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Mr S Norman
    Member