Thankamani Radhakrishnan Pillai (Migration)

[2021] AATA 4331

Thankamani Radhakrishnan Pillai (Migration) [2021] AATA 4331 (8 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Renjith Thankamani Radhakrishnan Pillai

CASE NUMBER:  2105020

HOME AFFAIRS REFERENCE(S):          BCC2021/489601

MEMBER:Antonio Dronjic

DATE:8 September 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 08 September 2021 at 4:10pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – employer’s tax and superannuation obligations – consideration of discretion – purpose of visa – did not take up full-time employment despite two offers – circumstances giving rise to breach – beyond the applicant’s control – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140

Migration Regulations 1994 (Cth), r 2.12; Schedule 8, Condition 8107

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
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 16 April 2021 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)(b) on the basis that the applicant breached condition 8107(3)(b) of Schedule 8 to the Migration Regulations 1994 (the Regulations), as the period during which the applicant ceased employment exceeded 60 consecutive days. 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 other applicants’ visas were 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 those other visas 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 them.

   Background to the cancellation of the applicant’s visa

4. The decision record of 16 April 2021 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 15 December 2017, the applicant was granted a Subclass 457 Business (Long Stay) visa, to remain valid for the period of four years.

   ·The standard business sponsor who most recently nominated the applicant to work as a Painting Trades Worker was AJSW Painting Pty Ltd (the sponsor);

   ·On 29 April 2020, the applicant ceased his employment with the sponsoring business.

   ·A notice of intention to consider cancellation (NOICC) was issued on 11 March 2021.

   ·On 16 March 2021, the applicant responded to the NOICC.

   ·On 16 April 2021, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 20 April 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record.

6. On 13 July 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a video hearing scheduled for 7 September 2021.

7. On 5 September 2021, the applicant submitted additional documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.

8. The applicant appeared before the Tribunal on 7 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was represented in relation to the review by his registered migration agent.

9. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act, as the delegate concluded that he had not complied with the conditions of his visa. Specifically, the 8107 condition to which his visa was subject prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. The Tribunal explained that the applicant’s wife’s visa was automatically cancelled by operation of s.140(1) of the Act, which made the cancellation of her visa self-executing on the cancellation of his visa.

10. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

11. The applicant is 33 years of age, and a married national of India. He has a daughter who is two years of age. Prior to arriving in Australia as a holder of a Student visa in April 2009, he completed a Bachelor of Business Administration degree and gained six months of work experience in India. His sister and parents live in India where the applicant owns a house.

12. The applicant completed several courses in Australia including a Certificate III in Painting and Decorating, Diploma and Advanced Diploma in Business and Certificate IV in Marketing.

13. The applicant’s wife, Ms Saranya Madhukumar, completed a Bachelor of Commerce degree in India. Her brother and parents live in India and neither she nor the applicant has any relatives in Australia.

14. The applicant was granted a Subclass 457 visa on 15 December 2017, based on the sponsorship and nomination made by an Australian company, AJSW Painting Pty Ltd. The applicant confirmed in his evidence that he received a copy of the visa grant letter from the Department which contained an explanation of the conditions imposed on his visa and his understanding of these conditions.

15. The applicant gave evidence that he commenced employment at AJSW Painting in April or June 2016. He stated that in 2009 he registered his own business and obtained an Australian Business Number (ABN). He continued to work at AJSW Painting as an independent contractor using his own ABN number until April 2018. After the applicant complained to his employer, from April 2018, he started receiving salary. He was paid $23.00 per hour or an annual salary of $48,000.

16. The applicant stated that his employer did not pay his tax to the Australian Taxation Office (ATO) until after his visa was cancelled. He further stated that his former employer did not pay him superannuation contributions. He gave evidence that approximately three months prior to this hearing he contacted (emailed) both the ATO and the Fair Work Ombudsman but did not lodge a formal complaint. 

17. He ceased his employment at AJSW Painting in April 2020 because his employer did not pay his tax to the ATO or make mandatory superannuation contributions. The applicant gave evidence that his employer (Joseph) told him that, because of the COVID-19 pandemic, there is not enough work, and that he should not come to work for four or five months.

18. The applicant gave evidence that in January or February 2021, he was offered employment by Unik Constructions Pty Ltd. The Tribunal noted that the applicant submitted a copy of the offer of employment letter from Unik Constructions dated 2 July 2021, indicating that they are willing to sponsor the applicant and pay him an annual salary of $60,000.

19. The applicant confirmed in his evidence that he is currently holding a bridging visa and is not prevented from working in Australia. The Tribunal enquired if the applicant commenced employment at Unik Constructions. The applicant stated that he started working there as subcontractor using his own ABN number approximately a month ago. He further stated that, because of the current pandemic, Unik Constructions is unable to provide him with full-time work.

20. The Tribunal noted that the applicant submitted another job offer letter from a different business, Kagcon Pty Ltd, dated 23 August 2021. According to this letter, the applicant was offered a full-time employment to commence on 15 September 2021. The applicant gave evidence that he did some work as an independent contractor for Kagcon Pty Ltd, but that this company at the present does not have enough work and is unable to provide him with full-time employment.

21. The applicant gave evidence that neither Unik Constructions nor Kagcon Pty Ltd lodged sponsorship or nomination applications with the Department. According to his understanding, Unik Constructions is currently advertising for the position of a Painting Trades Worker. He conceded that at the present time, he is not sponsored by an Australian business that successfully nominated him for the position in their business.

22. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached condition 8107 that was imposed on his Subclass 457 visa and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

23. The Tribunal indicated that it would take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application. The Tribunal asked the applicant if there was anything else that he wanted to raise with the Tribunal.

24. The applicant stated that he has been living in Australia for 14 years and has never breached any of the conditions imposed on his visas. He reiterated that he did not do anything wrong and that he was used by his former employer. He further stated that Australia needs qualified trade workers and that he has been working in this industry for six years. He stated that he just wants another chance. The Tribunal acknowledged that the applicant submitted several character references letters from his friends and co-workers.

25. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 video conferencing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

26. 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

27. 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.

    Does the ground for cancellation exist?

28. 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 is attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 60 consecutive days.

29. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 29 April 2020. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

30. 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

31. 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’.

32. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]

33. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

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

34. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for AJSW Painting Pty Ltd as a painting trade worker on a temporary basis.

35. The applicant was unfortunate to lose his job in April 2020. He decided to remain in Australia and try to find a new employer. Despite being permitted to work in Australia from April 2021, and despite having two offers of full-time employment, the applicant did not commence full-time employment. He continues to work as subcontractor using his own ABN number.

36. According to the primary decision record, Unik Constructions, one of those two companies that offered full-time employment to the applicant, lodged an application for a temporary activities visa (Subclass 408) on 15 March 2021 but decided to withdraw that application on 25 March 2021.

37. The applicant gave evidence at the hearing that, because of the COVID-19 pandemic neither Unik Constructions nor Kagcon Pty Ltd currently have enough jobs to provide him with full-time employment.

38. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian company which is an approved standard business sponsor, and which successfully nominated the applicant for a position within the business. The Tribunal further finds that the applicant’s Subclass 457 visa would, but for the cancellation, have ceased on 15 December 2021 in any case. 

39. As explained at the hearing, 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 was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor in April 2020. The Tribunal gives significant weight to this consideration.

    The reason for and extent of the breach

40. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in April 2020. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 60 days. This was contained in a condition of his visa, which stated if the employment ceases it ‘must not exceed 60 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor, and which successfully nominated the applicant to work at the business.

41. The Department did not proceed with the visa cancellation until 16 April 2021. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 16 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

42. The applicant gave evidence that he ceased employment at AJSW Painting because his employer did not pay tax to the ATO or make mandatory superannuation contributions. He was asked by his employer not to come to work for five or six months as there was not enough work to give to the applicant because of the restrictions related to the COVID-19 pandemic.

43. The Tribunal accepts that the applicant may have not been advised in writing that his employment ceased. Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of 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.

    Past and present conduct of the visa holder towards the Department

44. There is no evidence before the Tribunal that the applicant previously breached visa conditions or that he was not co-operative with the Department.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

45. The Tribunal accepts that the applicant has been living in Australia for 14 years, that he formed personal and economic ties in Australia and is a qualified painting trades worker with more than six years of relevant experience. The Tribunal further accepts that Australia needs qualified trade workers.

46. The Tribunal has taken into consideration the applicant’s evidence that both he and his wife completed tertiary education in India, that the applicant owns a property in India and that all of their siblings live there. Considering his family composition, formal education completed in India and Australia and his work experience gained in Australia, the Tribunal is satisfied that the applicant and his family will be able to re-establish themselves in India.

47. Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant was granted a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being 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 person from making a valid visa application without the Minister’s Intervention

1. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case, he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

2. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as he breached the 8107-condition imposed on his visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act, if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

3. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

4. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 of the Regulations prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

   Whether there would be consequential cancellations under s.140

5. Whilst the applicant’s wife’s visa was also cancelled because of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his wife and child.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

6. 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).

7. The Tribunal is satisfied that in the circumstances of this case cancellation would not lead to removal. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

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.

   The impact on any victims of family violence

9. There is no evidence before the Tribunal regarding this matter.

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

    DECISION

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

    Antonio Dronjic
    Member

    
    

    ATTACHMENT A: DOCUMENT LIST

    ·Letter from Saneesh Palakkattu George (Undated)

    ·Letter from Jino Kudilil Joseph (Undated)

    ·Letter from Jashad Mullasseri (Undated)

    ·Letter from Seby Sebastian (Undated)

    ·Letter from Annamalai Adaikkappan dated 02/09/2021

    ·Letter from Solmon Palakkattu George (Undated)

    ·Letter from Anil Jose (Undated)

    ·Letter from Shibu Joseph (Undated)

    ·Letter from Pappachan Saji Kunnumpurath (undated)

    ·Letter of offer from Kagcon dated 23/08/2021

    ·Letter from Siju Alex (Undated)

    ·Letter from Anish (Undated)

    ·Letter from Joshy George dated 02/09/2021

    ·Letter from Unik Constructions (Undated)

    ·Letter of offer from Unik Constructions dated 02/07/2021