1511394 (Migration)

[2015] AATA 3776

1511394 (Migration) [2015] AATA 3776 (24 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Niketaben Mihirkumar Shah

CASE NUMBER:  1511394

DIBP REFERENCE(S):  BCC2015/1516668

MEMBER:Denise Connolly

DATE:24 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2015 at 12:29pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 August 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant was granted a Subclass 457 visa on 28 March 2014 having been sponsored by Mr Sanjay Deshwal to work as a Marketing Specialist in his migration agency, AVMCS. The Department approved the nomination on 18 March 2014. On 13 February 2015 the Department received advice from the sponsor that the applicant had ceased employment with the sponsor, effective from that date. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breached condition 8107 which attached to the Subclass 457 visa. It required, among other things, that if the visa holder ceases employment, the period during which she ceases employment must not exceed 90 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 24 November 2015 to give evidence and present arguments. The week before the hearing, the representative, a registered migration agent, Mr Sanjay Deshwal, told the Tribunal he would be in India on the scheduled hearing date. He was invited to participate in the hearing by telephone however he did not provide to the Tribunal a contact telephone number. The applicant told the Tribunal she was prepared to proceed with the hearing without the representative’s participation.

4. As indicated above the applicant was represented in relation to the review by Mr Sanjay Deshwal, AVMCS. The Tribunal notes, based on the applicant’s oral evidence at the hearing, that the representative in this case is also the applicant’s sponsor and current employer. The Tribunal has some concerns as to whether this may be a breach of the Code of Conduct for registered migration agents. However it was not able to discuss this with the representative at the hearing as he did not participate. The Tribunal has decided in these circumstances not to take this issue any further as it is not relevant to the Tribunal’s consideration of whether there is a ground for cancellation and, if so, whether the visa should be cancelled.

5. 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

6. 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?

7. 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 attached to the applicant’s visa. This condition among other things requires the applicant to work only in a position in the business of the sponsor or an associated entity of the sponsor and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

8. At the hearing the applicant told the Tribunal that she was granted the Subclass 457 visa on 28 March 2014 to work as a Marketing Specialist for Mr Deshwal, AVMCS. She had commenced working for Mr Deshwal on 24 June 2013 and ceased her employment with him on 13 February 2015. Having read the delegate’s decision record, which she provided to the Tribunal, she acknowledged that she was required to comply with condition 8107. She told the Tribunal that she understands that she has breached condition 8107 by ceasing her employment with Mr Deshwal. 

9. The Tribunal finds the applicant was granted a Subclass 457 visa on 28 March 2014 valid until 28 March 2016 which required the applicant to meet condition 8107. She ceased her employment with the sponsor on 13 February 2015. At the hearing she told the Tribunal that she has started working for Mr Deshwal in his fashion business in Harris Park in about September 2015. However she indicated she is selling clothing and talking to people about migration.

10. Accordingly the Tribunal finds that the applicant was not employed by the sponsor from 13 February 2015. She may have returned to employment with the sponsor in September 2015 but, based on her oral evidence, the Tribunal is not satisfied she has been working as a Marketing Specialist. In any case the Tribunal is satisfied that the period during which the applicant ceased employment with the sponsor exceeded 90 consecutive days. The Tribunal finds the applicant has failed to comply with condition 8107 of her visa, as she did not comply with condition 8107(3)(b).

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act 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

12. 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’.

13. The Tribunal asked the applicant about the purpose of her stay in Australia, the circumstances in which she ceased her employment and various other issues relating to the relevant matters. The applicant told the Tribunal that she was sponsored to work for Mr Deshwal as the Marketing Specialist for his migration agency. Just before the visa was granted she married in India. After her visa was granted Mr Deshwal tried to get her husband a visitor visa but that application was unsuccessful. She then returned to India in November 2014 to visit her husband for 2 weeks. She went back to India again in January 2015 and she and her husband were involved in an accident. Her husband, who needed surgery, said he wanted her to return to India so she came back to Australia and her left her employment with the sponsor, Mr Deshwal. She then felt confused and depressed and did not know what to do so she stayed in Australia. The Tribunal asked the applicant what employment she had after leaving the employment with her sponsor. She said she did not work and she was not doing anything. The Tribunal questioned whether it was the case that she has done no work since February 2015. She said she did not return to work until September 2015 when she started working for Mr Deshwal again in his Indian fashion business, after she was given permission to work. The Tribunal questioned why she would remain in Australia if she was not working in circumstances where her husband wanted her to return to India. She said she was confused. The Tribunal asked how she supported herself for 6 months if she was not working. She said her relatives have been supporting her. The Tribunal indicated it may not accept that she was not working in Australia and not doing anything here, given the reason she has given for ceasing her employment with the sponsor was that her husband wanted her to return to India. She repeated that she was confused.

14. When asked about the other relevant factors, the applicant said that she tried to secure other employment with Australian Leather Pty Ltd, who agreed to sponsor her in May 2015, and she made a new Subclass 457 visa application. However their nomination application was refused so she withdrew that visa application in July 2015. Then Mr Deshwal agreed to sponsor her again and she started working in his Indian fashion business, selling clothes. The Tribunal indicated that Retail Worker is not an occupation for which a Subclass 457 visa may be granted. She indicated she also talks to people about migration.

15. The applicant said that she wishes to remain in Australia but indicated she is ambivalent about staying here. She has had many job offers and wants to have a stable life and then return to India to be with her husband and family. She said that she has had no other issues in relation to compliance with visa conditions or her conduct towards the Department. She breached her visa condition because she was confused about what to do, and depressed, and she could not make up her mind. With respect to any hardship a visa cancellation may cause, she claims that her family has been able to support her but she has also used her credit cards. She indicated that she just wants to stay here for one or two more years.

16. The Tribunal has considered the applicant’s assertions in relation to her reasons for breaching condition 8107. It accepts that, once her husband was unsuccessful at his visitor visa application, he may have wanted her to return to India. However it is not persuaded that this is the reason she left her employment with Mr Deshwal. It is of the view that, if the applicant made the decision to leave that employment to be reunited with her husband, she would have returned to India to be with him. She did not do this. She claims she stayed in Australia and did not work for 6 months. The Tribunal is unpersuaded by this evidence. It is of the view that, if she was not working in that 6 month period, she would have returned to India to be with her husband and family. It does not accept that she did nothing in Australia for 6 months because she was depressed and confused, in circumstances where she could have returned to her family.  It is concerned that she was working in Australia without permission. It expressed its concern to the applicant that she may not have been frank in her oral evidence.

17. The applicant claims she wishes to remain in Australia for one or two years and then she will return to India to be with her husband and family. She claims she has been supported in Australia by relatives although she has also had to use her credit card. Having considered this evidence, the Tribunal is not satisfied there is any compelling need for the applicant to remain in Australia. It is also not satisfied that the applicant will suffer any hardship if the visa is cancelled. She has a husband and family to return to in India. The Tribunal has considered the circumstances in which the applicant breached condition 8107 and in which the ground for cancellation arose. It has some concerns that the applicant was not entirely frank with the Tribunal about her reasons for leaving her employment with Mr Deshwal. It raised with her a few times at the hearing its concern that her explanation for breaching condition 8107 may not be persuasive. Having considered the available evidence, the Tribunal is concerned there is some other reason for the applicant’s actions, which she has not disclosed. In any case the Tribunal is unpersuaded by her evidence in relation to her decision to leave her sponsored employment. In all the circumstances of this case it does not consider her rationale for leaving her sponsored employment gives weight to reasons for not cancelling the visa.

18. The applicant has told the Tribunal that there are no other concerns arising in relation to her compliance with visa conditions and her conduct towards the Department. There are no consequential cancellations. She has told the Tribunal that she ultimately wishes to return to India to her husband and family. The Tribunal is satisfied that there are no family violence issues. It is also satisfied that no international obligations would be breached as a result of cancellation.

19. The Tribunal accepts the applicant’s evidence that she is working for Mr Deshwal in his Indian fashion business in Harris Park. On the basis of her evidence, it is not satisfied this employment is in the nominated occupation of Marketing Specialist. She claims she has had several other job offers. The Tribunal takes this into account. However there is no evidence that she has a job offer in the nominated occupation for which a nomination has been approved. Mr Deshwal may have made a nomination application in relation to the applicant, however on the basis of her oral evidence about her current employment with Mr Deshwal the Tribunal is not satisfied she is undertaking the duties of a Marketing Specialist. In these circumstances it does not consider it necessary to wait for the outcome of any nomination application Mr Deshwal may have recently made.

20. Considered overall, the Tribunal is of the view it is the preferable decision that the applicant's visa be cancelled. After she voluntarily left her employment with the sponsor, she remained in Australia for some time, and claims she did not work. The Tribunal finds her reasons for this decision unpersuasive. It is concerned that she has worked in Australia without permission. It is concerned that she has not been frank with the Tribunal about her reasons for leaving her sponsored employment with Mr Deshwal. While she may currently be working lawfully for Mr Deshwal the Tribunal is not satisfied she is working in the nominated occupation. It is concerned she is merely working as a Retail Worker, an occupation for which a Subclass 457 visa would not be granted. The Subclass 457 visa is a temporary visa for skilled work in fields in demand in Australia. The Tribunal is satisfied there are no family violence issues or international obligations which would be breached as the result of cancellation. It takes into account the applicant’s evidence that apart from this breach she has a good migration history. However it is concerned that her purpose for remaining in Australia is no longer to meet the requirements for a Subclass 457 visa and it is not satisfied there is a compelling need for her to remain here.

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.

    Denise Connolly
    Member