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Singh (Migration) [2019] AATA  1614  (17 May 2019)

Last Updated: 3 July 2019

Singh (Migration)  [2019] AATA 1614  (17 May 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Gaganpreet Singh

CASE NUMBER: 1901046

HOME AFFAIRS REFERENCE(S): BCC2018/4285060

MEMBER: Jade Murphy

DATE: 17 May 2019

PLACE OF DECISION: Melbourne

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

Statement made on 17 May 2019 at 12:05pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – Winding Up order – Liquidator appointed – closure of sponsoring business – consideration of discretion – purpose of visa grant – unemployed for over 13 months – decision under review affirmed

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 11 January 2019 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 delegate was satisfied that the applicant had not complied with a condition of the visa, specifically condition 8107(3)(b) in that the applicant ceased employment with the sponsor for a period exceeding 90 day 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. The applicant appeared before the Tribunal on 17 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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)(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?

s.116(1)(b) - non-compliance with conditions

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(3)(b) attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which they cease employment must not exceed 90 consecutive days.
7. As set out in the delegate’s decision, as provided to the Tribunal by the applicant, the applicant was nominated in the occupation of Cook (ANZSCO 351411) with the sponsor Ark Holdings (WA) Pty Ltd. The delegate noted that information available to them indicated that on 22 November 2017 the sponsor was given a Winding Up order and Appointment of Liquidator by the Court and that the sponsor then sold the business and ceased to operate. The delegate further states that information available to them indicated that the applicant ceased employment with the sponsor at least since 22 November 2017 when the sponsor was given the Winding Up order and a Liquidator was appointed by the Court.
8. On 18 December 2018 the applicant was sent a Notice of Intention to consider cancellation of Temporary Business Entry (subclass 457) visa letter and on 24 December 2018 the applicant responded to the Notice. The applicant advised that they were unaware of the sponsor’s actions and that the sponsor did not provide him with written or verbal notification of liquidation and closure of the business. The applicant stated that he found out this had occurred when he returned from approved leave in November 2017. The new management of the business did not offer the applicant employment and the sponsor was no longer contactable. The applicant stated that he no longer had a job and was not aware of visa condition 8107 and any related implications. The applicant stated that he felt exploited and vulnerable. The applicant told the department that he had been actively looking for work and has secured work with a new employer; JO’s Curry House in Bunbury, Western Australia and the employer has agreed to sponsor him for a subclass 482 visa. The delegate stated that in September 2018 the applicant received notification from the Department providing him information regarding the liquidation of the sponsor and the implications of condition 8107 including the 90 day work period and stated that the applicant now accepts responsibility for this.
9. At hearing, the applicant confirmed his responses to the department and the series of events as set out above.
10. 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 visa should be cancelled.

Consideration of discretion

11. 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’.
12. In his response to the department’s Notice of Intention to cancel his subclass 457 visa, the applicant stated that his visa should not be cancelled because he has been compliant with the Australian Taxation Office, has paid his taxes and contributed to the Australian economy since he arrived here in 2008 on a student visa. The applicant stated that he has suffered financially, emotionally and mentally and that the sponsor’s closure has jeopardised his career and future plans.
13. In considering the exercise of its discretion, the Tribunal has considered the purpose of the applicant’s travel and stay in Australia. The applicant was granted a subclass 457 visa for the sole purpose of permitting him to engage in employment in a nominated position for an approved business sponsor. As acknowledged by the applicant, he has not worked in the nominated position for his approved sponsor since 22 November 2017 due to closure of the sponsoring business. This indicates to the Tribunal that the sponsor does not have a need for the applicant to work in the nominated occupation any longer. The applicant has not applied for a new 457 nomination and does not have an approved 457 sponsor. The applicant did not provide the Tribunal with any compelling reason as to why he needed to remain in Australia. At hearing, the applicant submitted that he has found a business that is willing to sponsor him if his visa cancellation is set aside and that he has tried to find a new employer the whole time. The applicant did not provide any evidence to the Tribunal of this and as a result the Tribunal places little weight on this submission.
14. The Tribunal considers that although it accepts the applicant’s submissions that he has complied with taxation regulations during his time in Australia, it is satisfied that he has not complied with condition 8107 which was imposed on his 457 visa. The applicant stated that he was unaware of this condition and any related implications. While the Tribunal acknowledges this submission, the Tribunal considers that upon being granted a subclass 457 visa, the applicant was issued with a grant notification outlining the visa conditions attached to his visa. By accepting the grant of the visa, the applicant is taken to have accepted the conditions on which it is being granted. Condition 8107 and the 90 day requirement is clearly outlined on the subclass 457 grant notification. The Tribunal notes that there is no evidence that any other visa conditions have been breached by the applicant.
15. The cancellation arose because the applicant’s sponsor went into liquidation, closed and sold its business. The applicant states that he was never given formal notice of the events that occurred of formal termination of employment. The applicant submits that the sponsor became uncontactable. The Tribunal accepts that the events that led to the breach of condition 8107 and the subsequent cancellation were unforeseen and not caused by the applicant. However, the applicant was unemployed for over 13 months before he was contacted by the Department regarding this issue. The Tribunal considers this a significant period of time to remain in Australia without obtaining a new 457 nomination or approved business sponsor. The Tribunal considers that during this time the continuous breach of condition 8107 was the applicant’s responsibility and could have been avoided by the applicant by obtaining a new employer and seeking a new approved nomination.
16. As noted by the Department, if the visa in cancelled then the applicant will become immediately unlawful and may apply for a Bridging visa E to rectify their status. As an unlawful non-citizen the applicant may be liable to detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant will be subject to section 48 of the Act which means that he will have limited options to apply for further visa in Australia and may be required to return to his country of origin.
17. The Tribunal considers that the applicant may be caused some financial and emotional hardship if his visa in cancelled. At hearing, the applicant submitted that if his visa had not been cancelled then he would have applied to extend his 457 visa or applied for permanent residency. He stated that the effect of the cancellation on him would be significant as he has spent 11 years in Australia and he would need to look after his parents if he returned to India which he submitted would be difficult. The Tribunal accepts the applicant may be caused some financial and emotional hardship, however aside from this statement, the applicant did not provide any evidence about his ties to Australia or any compelling reason for staying in Australia. The Tribunal also acknowledges that the degree of this hardship is limited in that there are no dependants on the applicant’s visa and no children which will be affected by any such decision. There would not be any consequential cancellations under s.140 of the Act.
18. As noted by the delegate, there is no evidence to suggest that the applicant has been uncooperative with the department.
19. The Tribunal notes that there are no international obligations, including non-refoulement and best interests of any children, which would be breached as a result of the cancellation.
20. Weighing up the above findings, the Tribunal places weight on its finding that that the purpose of the applicant’s stay in Australia was temporary and to work in the nominated position for his sponsor. This purpose no longer exists as his sponsor has ceased to exist and the nominated position therefore does not exist as a result. In addition, the Tribunal places weight on the applicant’s lengthy stay in Australia while unemployed and his inaction in obtaining a new employer and seeking a new approved nomination which resulted in a continuous 13 month breach of condition 8107. The Tribunal further places weight on the finding that no international obligations would be breached as a result of cancellation and the applicant has no dependants on his visa that would be subsequently cancelled. In the exercise of its discretion, the Tribunal concludes that these considerations weigh more heavily than the hardship caused to the applicant upon cancellation, that the circumstances that led to the cancellation were unforseen, the applicant’s cooperation with the department and that the applicant may be liable to detention and removal if he does not voluntarily depart Australia.
21. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Jade Murphy
Member