1508144 (Migration)

[2016] AATA 3408

1508144 (Migration) [2016] AATA 3408 (2 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Bhawandeep Kaur
Mr Gaurav Gaba

CASE NUMBER:  1508144

DIBP REFERENCE(S):  BCC2014/2719807

MEMBER:Adrian Ho

DATE:02 March 2016

PLACE OF DECISION:  Melbourne

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 02 March 2016 at 5:29pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 June 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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 the applicant’s sponsoring employer had its standard business sponsorship status cancelled: r.2.43(1)(l)(iv). 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 second named applicant’s visa was 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 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), the Tribunal has no jurisdiction with respect to the second named applicant.

4. By letter dated 11 September 2015, the Tribunal wrote to the applicant pursuant to s.359(2) to provide information demonstrating that the above ground for cancellation did not exist, that no other ground for cancellation existed, and to provide information relevant to whether or not the visa should be cancelled.

5.    In the invitation the applicant was advised that, if the information was not provided in writing by the time stipulated, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement under the Act to appear before the Tribunal to give evidence and present arguments.

6.    A request for an extension of time was accommodated.  However, the applicant did not provide the information within the time as extended, and has not provided the information in the months that have passed since.

7.    The tribunal informed the applicant that the entitlement to a hearing in this matter had been lost in the following terms:

LOSS OF HEARING RIGHT – MRS BHAWANDEEP KAUR AND MR GAURAV GABA

I am writing in relation to the applications for review made by you in respect of decisions to cancel Subclass 457 (Temporary Work (Skilled)) visas.

On 11 September 2015, the Tribunal wrote to you in accordance with s.359(2) of the Migration Act, requesting information in regard to specific criteria concerning your application for review of a decision not to grant you a Subclass 457 visa.

The Tribunal’s correspondence explained that if you did not provide the information within the prescribed period, or a period as extended, you would lose your right to present evidence and arguments at a Tribunal hearing.

The Tribunal considers that you have not provided all of the information requested by the Tribunal within the prescribed period (or with a period as extended, if applicable).

The Tribunal has no power under s.359B(4) to now extend the time for you to provide the information: Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010) at [32].

In these circumstances, s.359C applies and pursuant to s.360(3) you are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if you have no entitlement to a hearing, the Tribunal has no power to permit you to appear at a hearing: Hasran v MIAC [2010] FCAFC 40.

The Tribunal will now accordingly proceed to finalise your application for review.

The Tribunal will defer making a decision until 26 October 2015 to allow you, if you wish, to make further submissions or provide further evidence.

1. No further contact has been received from the applicants.

2. The Tribunal has decided to proceed to decision without taking further steps to obtain information requested.

3. 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

1. 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) and r.2.43(1)(l)(iv). 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?

1. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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.

2. It provides that a 457 visa may be cancelled where the standard business sponsor who had sponsored the applicant for the visa has been cancelled or barred under s.140M.

3. The applicant submitted a copy of the delegate’s decision to the tribunal in which the delegate notes:

   a.The nomination by the standard business sponsor, AA & DD Pty Ltd, was approved on 3 March 2014;

   b.The approval of the sponsor as a standard business sponsor was cancelled on 11 February 2015;

   c.The sponsor was barred for 3 years from being approved as a standard business sponsor;

   d.A new nomination was sought for the applicant in April 2015 and was refused in May 2015.

4. The applicant advised the tribunal in writing that the business of her sponsor, AA & DD Pty Ltd, was closed (f.25).

5. On the evidence, the status of the applicant’s nominating standard business sponsor was cancelled after the nomination relating to her was approved and the sponsor has been barred under s.140M.

6. The prescribed ground for cancellation in r.2.43(1)(l)(iv) exists.

7. 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 power to cancel the visa should be exercised.

Consideration of discretion

1. 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 the applicant’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’.

2. The applicant has not to date put forward any considerations in relation to an exercise of the discretion to cancel, despite being invited to do so in the tribunal’s s.359(2) invitation in September 2015.

3. Based on the limited evidence before the tribunal, the tribunal finds:

4. a. That the purpose of the applicant’s stay in Australia on a Subclass 457 visa was to work for the standard business sponsor whose approved nomination the visa was granted against;

5. That sponsor has had standard business sponsorship status cancelled and has been barred from that status for 3 years;

6. On the evidence, the applicant is not the subject of an approved nomination by a standard business sponsor and there is no basis on which the applicant would now meet the criteria for a Subclass 457 visa;

7. c. On the evidence, the visa was cancelled in June 2015 and the applicant has had sufficient time to make arrangements to depart Australia in the event that the applicant will become an unlawful non-citizen as a result of cancellation;

8. The applicant has also had sufficient time to seek an approved nomination from any other standard business sponsors willing to provide sponsorship;

9. d. On the evidence, the applicant’s partner’s visa will also remain cancelled but there are no circumstances suggesting that particular hardship will fall to that partner who has had the same amount of time as the applicant to seek an alternative basis of lawful stay in Australia, and to make arrangements to depart;

10. On the evidence, there are no children or other members of the applicant’s family unit that will be affected by an consequential cancellations;

11. The past conduct of the applicant with the Department has been cooperative;

12. On the evidence, there are no particular circumstance of hardship that will result from cancellation;

13. On the evidence, cancellation will not result in Australia being in breach of its international obligations.

14. The tribunal gives particular weight to the consideration that the only permitted purpose of the applicant’s Subclass 457 visa is to work for the standard business sponsor in the position and occupation which had been nominated and approved.

15. As that sponsor is now no longer a standard business sponsor that can sustain sponsorship of a 457 visaholder, the purpose for the applicant to be present in Australia on a Subclass 457 visa does not exist.

16. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

17. The visa of the second named applicant was cancelled under s.140 by operation of law.  As no decision was made to cancel that visa, there is no reviewable decision for the tribunal to review, and the Tribunal has no jurisdiction with respect to the second named applicant.

DECISION

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

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

Adrian Ho
Member