1510341 (Migration)

[2016] AATA 3846

1510341 (Migration) [2016] AATA 3846 (18 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sukhdeep Kaur Gill
Mr Tarsem Singh
Mr Japman Singh

CASE NUMBER:  1510341

DIBP REFERENCE(S):  BCC2014/3454735

MEMBER:Don Lucas

DATE:18 May 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

STATEMENT MADE ON 18 MAY 2016 AT 11:44AM

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 July 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 ground prescribed in Migration Regulation 2.43(1)(l) was made out, namely that the first named applicant’s (‘the applicant’) standard business sponsor had been sanctioned under s.140M of the Act, and the discretionary considerations weighed in favour of the applicant’s visa being cancelled.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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. However, in view of the Tribunal’s findings below, having the effect of restoring the applicant’s subclass 457 visa, the consequential cancellation of visas held by members of her family unit will also be reversed.

5. The applicant was represented in relation to the review by her registered migration agent.

6. The applicant appeared before the Tribunal on 6 January 2016 to give evidence and present arguments.

7. 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

8. 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?

9. 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) is relevant.

10. The applicant was granted a subclass 457 visa on 6 September 2012 based upon a nomination made by Sage Food Co Pty Ltd as a standard business sponsor for the position of Cook.

11. On 9 December 2014 the Department cancelled the standard business sponsorship status of Sage Food Co Pty Ltd for a period of three years under s.140M(1)(a). The Department also decided to bar Sage Food Co Pty Ltd from making any applications the standard business sponsorship for a three year period in accordance with s.140M(1)(b).

12. The Tribunal accordingly finds that a prescribed ground for cancellation in s.116(1)(g) is made out. 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

13. 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’.

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

14. A subclass 457 visa was granted to the applicant on the basis of the nomination for the position of Cook in the business operated by Sage Food Co Pty Ltd.

15. Prior to the delegate’s decision, the applicant had advised the Department that she was in the process of seeking redeployment as a Cook with another business which was in the process of obtaining approval of a business nomination relating to the applicant. At the time of the delegate’s decision, the applicant had not been able to secure a successful nomination with the new business sponsor, P& J Kontoutis Family Trust.

16. On 31 July 2015 the applicant’s representative provided a submission indicating that an initial nomination had been unsuccessful due to an oversight in accompanying the application with evidence of labour market testing. A second nomination application was made identifying the applicant which was pending.

17. On 17 September 2015 a new nomination made by P& J Kontoutis Family Trust  as a standard business sponsor identifying the applicant was approved for the position of Cook. Accordingly, the applicant is once again in a position to perform in an occupation nominated for the purposes of the temporary business entry program.

18. The Tribunal gives this development significant weight in its conclusion that the correct and preferable decision is that the applicant’s visa not be cancelled.

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

19. Although consequential cancellation has followed the cancellation of the applicant’s visa in relation to her spouse and child, any such effects will be reversed by the Tribunal’s decision to set aside the applicant’s cancellation and to substitute a decision that the applicant’s visa not be cancelled.

    Circumstances in which ground of cancellation arose

20. The evidence before the Tribunal indicates that the circumstances giving rise to the cancellation ground were fundamentally beyond the applicant’s control. Publicly available information contained on the database of the Australian Securities and Investments Commission (ASIC) confirms that Sage Food Co Pty Ltd was deregistered as a company on 7 June 2015. The cancellation decision made by the Department on 9 December 2014 arose as a result of findings concerning breaches of sponsorship obligations in r. 2.82 (obligation to keep records) and r.2.86 (obligation to ensure primary sponsored person works in the nominated occupation). Although the findings made in the sanction decision may give rise possible breaches of the work limitation condition 8107 in relation to other sponsored persons, no information arises and as to any breach on the part of the applicant.

21. The Tribunal accordingly gives weight to this consideration in the exercise of its discretion not to cancel the applicant’s visa.

    The extent of non-compliance with the conditions subject to which the visa was granted

22. The Tribunal has carefully examined the record of the Department’s decision to sanction the applicant’s initial standard business sponsor. Nothing arises from this nor from any subsequent evidence that would indicate any breach on the part of the applicant with the particular conditions imposed upon her subclass 457 visa.

    Past and present conduct of the visa holder towards the department

23. At the hearing, the applicant gave evidence concerning how she initially approached the business operated by her former standard business sponsor. She stated that she had searched for employment as a Cook by approaching a number of different hospitality businesses directly. She met with the proprietor of Sage Food Co Pty Ltd, Mr “Prashanth” who agreed to employ her after a short period of supervised training. The applicant volunteered evidence to the effect that she had been required to pay the sum of $30,000 to the proprietor, who had told her that this figure would cover his own expenses including legal and government fees for the nomination and visa application processes through his migration agent, and would also cover her compulsory overseas worker’s health insurance. The applicant indicated that she paid this amount in three instalments of $10,000 over the course of around one year, the money’s coming from savings that she and her husband had accumulated over the years.

24. The Tribunal indicated to the applicant the payment of a sum of money in this amount to a subclass 457 business sponsor might suggest that the applicant had engaged in a transaction that could be characterised as payment for a visa, which would be unlawful for a number of different reasons and fundamentally a matter undermining the integrity of the subclass 457 visa program.

25. The applicant responded that she genuinely believed that the sum she had been required to pay to her employer related to legitimate expenses he would incur on her behalf in the process. She acknowledged that in retrospect that she had been naive in this regard, but reiterated that she had no intention of wrongdoing. She further stated that she was in any case an eligible candidate for a subclass 457 visa as she possessed the requisite qualifications obtained in Australia for the occupation of Cook and had no need whatsoever to pay for a visa, beyond any legitimate expenses associated with such a process. She also referred to her subsequent successful employment and nomination application made by her current employer who was a standard business sponsor.

26. Subsequent to the hearing, the applicant provided all of the relevant formal qualifications for the occupation of Cook which is persuasive that the applicant is a person who possesses the necessary qualifications for this occupation as described in ANZSCO.[1]

    [1] The Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary

27. Having carefully considered the evidence before it, the Tribunal is prepared to give the benefit of the doubt to the applicant in relation to her claim that she did not intentionally engage in any visa fraud in relation to how she secured the initial nomination with her first standard business sponsor, although the Tribunal is inclined to conclude that there was indeed malafides on the part of the applicant’s first standard business sponsor. On balance the Tribunal accepts that the applicant’s payment of monies to her former sponsor was naive on her part rather than ill intentioned. The Tribunal also gives weight to the evidence concerning the applicant’s formal qualifications for her nominated occupation and the fact that she has once again been identified in an approved nomination made on this occasion by a new standard business sponsor.

28. The applicant has presented evidence that she retained health insurance over the relevant period. The applicant has also provided some evidence of regular wage payments made by her former standard business sponsor.

29. The Tribunal also gives significant weight to the fact that the applicant herself volunteered the information concerning her own payment of monies to her former sponsor.

    CONCLUSIONS

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 first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

32. The Tribunal has no jurisdiction with respect to the other applicants.

    Don Lucas
    Member