Tirath Ram (Migration)

[2021] AATA 1093

Tirath Ram (Migration) [2021] AATA 1093 (19 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tirath Ram

CASE NUMBER:  2005656

HOME AFFAIRS REFERENCE(S):          BCC2019/2713613

MEMBER:Bridget Cullen

DATE:19 February 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 19 February 2021 at 1.47pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – approved sponsor was cancelled and barred – new nominations refused – employment ceased – financial hardship – applicant sought alternative employment – visa soon to expire – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, rr 2.12, 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 March 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)(g) on the basis that their approved sponsor was cancelled and barred for 2 years under s.140M of the Act and exercised their discretion to cancel the 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.

3. The applicant appeared before the Tribunal on 15 December 2020 to give evidence and present arguments.

4. 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

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)(g). 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)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(l)(iv) is relevant. The Prescribed ground, which applies to the visa holder, states the ground exists in the case of a person who holds a Subclass 457 visa who is a primary sponsored person, that the sponsor has been barred under s.140M of the Act.

7. The applicant in this matter was nominated by and approved for nomination by Tushaan Enterprises Pty Ltd. This nomination was approved on 3 February 2017. The applicants visa was subsequently granted on 27 March 2017, for a period of 4 years (until 27 March 2021).

8. On 6 September 2019, the Department made a decision to cancel the approval of Tushaan Enterprises Pty Ltd as an approved sponsor, and further barred them from making future applications for approval as an approved sponsor for a period of two years. A notice was sent to the applicant on the same date advising him of the decision.

9. The delegate, satisfied that the ground existed, sent a Notice of Intention to Consider Cancellation on 21 February 2020 that the above ground for cancellation existed. The applicant provided a response on 28 February 2020.

10. The applicant, in their response to the Notice, did not agree there were grounds for cancellation, surmised by the Delegate as follows:

    ·The visa holder was the victim of sponsor’s failure to comply with sponsor obligations;

    ·He maintained his 457 visa conditions until the sponsor closed the business and declared bankruptcy;

    ·The sponsor assured him that he was trying to get the business operating again;

    ·New nominations for sponsorship with Awadesh Bakery and Restaurant Pty Ltd were lodged 13 July 2019 and again on 15 September 2019. Both nominations have been refused and an AAT application is pending relating to the most recently lodged nomination.

11. Whilst the Department acknowledged that there were nominations made, there was no indication of a positive outcome for the applicant in these matters. The Tribunal did not consider it reasonable to adjourn the review in circumstances where there is no information suggesting that either new nomination would be approved, and it has now been more than 17-months since the applicant worked for an approved sponsor.

12. The applicant’s argument in relation to whether there is a ground to cancel focusses on his view that it “wasn’t his fault” that his sponsor was cancelled and barred. The Tribunal explained to the applicant that it did not need to find “fault” on his part. The reason for cancellation is one that is borne out on the evidence before the Tribunal – the applicant’s approved sponsor could no longer sponsor him, and he does not have an approved sponsor at the time of the Tribunal’s decision.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

14. 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’.

15. In response to the Notice, the applicant stated the following:

    ·He should be given an opportunity to seek employment with an alternative sponsor, and that he has a nomination application present at the Tribunal, with difficulties bringing skilled workers to the regional area;

    ·He has complied with his visa conditions and made attempts to rectify the issue by attending interviews with prospective sponsors;

    ·As a former Student visa holder, he attended classes, maintained satisfactory progress, did not work beyond allowed hours and maintained his OSHC;

    ·He would suffer financially, psychologically and suffer significant emotional distress;

    ·Cancellation of the visa would result in loss of travel rights, particularly noting he is in the process of seeking divorce from his wife. He claimed that if he was unable to undertake that travel, the process will be delayed further complicating his personal life; and

    ·He has resided in Australia for more than 10 years.

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

16. 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 purpose of the visa is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Tribunal finds that the purpose of the review applicant's stay in Australia was to work for an approved sponsor, which he has not done for more than 17-months.

17. Although the applicant has tried to obtain alternative employment, both potential nominations for sponsorship were refused by the Department. In any event, the purpose of granting a Subclass 457 visa is not to enable the visa holder to live in Australia and look for employment opportunities.

18. Based on the evidence before it, the Tribunal is satisfied that the applicant had a reasonable opportunity to secure employment with an Australian company who is an approved standard business sponsor, but has been unable to do so. The Tribunal has also taken into consideration the fact that the applicant's visa would, but for the cancellation, would cease on 27 March 2021. Overall, the Tribunal considers this a factor in favour of cancellation, as the applicant is not fulfilling the purpose for which the visa was granted.

    Circumstances in which ground of cancellation arose

19. The ground for cancellation arose when the applicant’s approved sponsor, Tushaan Enterprises Pty Ltd, was cancelled as an approved sponsor, and further barred from making future applications for approval as an approved sponsor for a period of two years.

20. The Tribunal does not consider the applicant to have been at fault or contributed to the ground for cancellation. The Tribunal does not weigh the circumstances in which the ground arose wither for, or against, cancellation of the visa.

    The visa holder's past and present behaviour towards the Department

21. There is no evidence before the Tribunal that the applicant has previously breached visa conditions. The applicant told the Tribunal that he had had some issues in relation to a partner visa before the former “MRT” and “before 4020”. However, there is no other information before the Tribunal explaining the issues raised by the applicant, and the Tribunal does not draw any adverse assumptions from the applicant’s own evidence.

22. The Tribunal weighs this slightly in favour of not cancelling the visa.

    The degree of hardship that may be caused to the visa holder

23. The applicant claims that the visa cancellation would cause him significant hardship, as he has been in Australia for more than 13-years. He is in the process of divorcing from his second wife, but those arrangements are unfolding in India.

24. The applicant does not own any property in either Australia or India. His mother and father still live in India. He does not have any family in Australia. He is not sure how to live in India after having been in Australia for such a lengthy period.

25. The Tribunal accepts that leaving Australia may involve some hardship to the applicant, but does not consider that this hardship would be significant. The Tribunal does not accept that the applicant would not be able to re-establish himself in India given his qualifications and employment experience gained in Australia.

26. The Tribunal notes that the applicant was granted a temporary visa to work in Australia for a limited time. Although the Tribunal understands that the applicant may have wanted to obtain permanent residence in Australia, his expectation was that the visa would end on 27 March 2021 – which is just over a month from the time of decision. The Tribunal considers that the applicant was always aware that the Subclass 457 visa was of a temporary nature only.

27. Although the Tribunal weighs the degree of hardship the applicant may face from cancellation slightly in his favour, this must be balanced with the countervailing consideration that he was granted a temporary visa which created no expectation of remaining in Australia permanently.

    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

28. 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 will have 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.

29. Further, 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 prescribes the classes of visas, which does not include business or skilled visas.

30. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

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

31. There are no consequential cancellations as a consequence of the applicant’s visa cancellation.

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

32. 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. There is no evidence before the Tribunal that would suggest that Australia would be in breach of any of its international obligations as a consequence of the applicant's visa cancellation.

33. Having 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

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

    Bridget Cullen
    Member