1513084 (Migration)

[2016] AATA 4113

1513084 (Migration) [2016] AATA 4113 (20 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jarnailo Devi
Mr Pawan Kumar
Miss Kunjal Dalal

CASE NUMBER:  1513084

DIBP REFERENCE(S):  BCC2015/1805982

MEMBER:Karen Synon

DATE:20 July 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 20 July 2016 at 10:18am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 September 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)(b) on the basis that the applicant had not complied with Condition 8107(3)(b). 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 applied for review of the primary decision on 23 September 2015 and provided a copy of the department’s decision and notification of cancellation.

4. On 28 April 2016 the Tribunal wrote to the applicant in accordance with the provisions of s.359A(2) providing particulars of adverse information in relation to visa cancellation and inviting information in relation to the exercise of the Tribunal’s discretion.  An extension of time which to respond and give information was requested and granted.  On 6 June 2016 a response and supporting documents were received.  These are considered where relevant below.

5. The applicant appeared before the Tribunal on 13 July 2016 to give evidence and present arguments.  The hearing was conducted via video with the applicant in Perth.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.  The applicant’s husband was present throughout the hearing but did not give evidence.

6. The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.

   Jurisdiction in relation to the secondary applicants

7. 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.

8. The Tribunal wrote to the applicants about this matter on 23 May 2015 and in response on 3 June 2016 the applicant agreed that other applicants should not have been included in the review application and requested that the review be conducted in respect of her only.

9. 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

10. 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?

11. 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. Condition 8107 (3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutives days’.

12. On the basis of the information before it from the department records (and as detailed to the applicant in accordance with s.359), the Tribunal finds that the applicant was granted a subclass 457 visa on 20 May 2013 to occupy a position of ‘Café or Restaurant Manager’ for Charanjit Singh and Manjit Kaur ATF Rajan Family Trust.  The Tribunal therefore finds, based on this information, that the occupation listed in the relevant approved nomination for the applicant was that of ‘Café or Restaurant Manager’.

13. The Tribunal finds that the applicant’s occupation of Café or Restaurant Manager’ (ANZSCO Code 141111) is not a specified occupation for the purposes of paragraph 8107(3A).

14. The applicant, on 6 June 2016, provided the following relevant response to information put to her in accordance with s.359A:

    I do not know and do not have any information about when and how the then employer…notified DIBP about the cessation of my employment with them…

    I contacted the employer several times asking of the business operation had ceased, what is my obligation….

    During the entire 457 process, very little information/documents were shared with me by the MARA agent or by the employer.  As a result I was not aware of my obligation or conditions attached to 457 visa.

    My employer has not paid my superannuation obligations to date and I recently leant that I can contact Fairwork Australia to seek help and assistance to deal with the underpayments and super non payments.

    I notified DIBP about my employment situation as soon as I leant about my visa conditions and [have attached correspondence].

15. At the hearing the applicant gave evidence that she was employed full-time as a restaurant manager of Authentic Punjab Restaurant and that in this role she performed following duties: setting the menu on a daily basis; opening and closing the restaurant; outgoing stock orders; checking the profit and loss; and calculating the salary of workers based on the number of hours they had worked.

16. The circumstances in which the applicant ceased employment were that on 28 August 2004 she and the staff were informed by a person involved in management (not the owner) that the owner would be shutting the restaurant down.  It was subsequently closed in the first week of September.  She was very surprised when told the restaurant was closing down and emailed the owner but he did not respond for two months.  The last day she worked there was 30 August 2004 (approximately 2 weeks after the date the owner provided to the Department as her last effective working day).  He has not paid superannuation or her sick leave entitlements and she never received payslips.

17. The applicant highlighted evidence she had provided to the Tribunal comprising a Form 1022 regarding a change in her circumstances, a Form 1005 being an application for a bridging visa and an email dated 29 April 2015 from her former representative who relevantly advised the department that the applicant was still on a 457 visa which restricts her to working for her previous nominating employer (Rajan Family Trust trading as Authentic Punjab Restaurant) but that business had closed down and she had lost her job late last year, as supporting her claim that she had advised the Department as soon as she became aware of her visa conditions that she was no longer working for her sponsor.  The applicant conceded that a significant period of time had passed before she made this notification but explained that she had no knowledge of the visa as she had been offered a job while she was still a student and she did not know about this visa condition.

18. The applicant concedes that after she ceased employment with Charanjit Singh and Manjit Kaur ATF Rajan Family Trust she ceased employment for a period exceeding 90 days which is supported by the information before the Tribunal contained in the primary decision and department records (as provided to the applicant in accordance with s.359A).  The Tribunal therefore finds that during the period the applicant held her subclass 457 visa she ceased employment for more than 90 consecutive days.  In this respect the Tribunal notes that whether the applicant ceased employment with Charanjit Singh and Manjit Kaur ATF Rajan Family Trust on 15 August 2014 as reported by her former employer to the department, or 30 August 2014 as she told the Tribunal, is not of particular relevance to this decision is the applicant agreed that he had ceased employment for a period exceeding consecutive 90 days.

19. The Tribunal accordingly finds that the applicant has not complied with condition 8107(3)(b) of her Subclass 457 visa.

20. 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 power to cancel the visa should be exercised.

    Consideration of discretion

21. 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 to and stay in Australia

22. The applicant gave evidence that she originally came to Australia as a student first to study hospitality management and cookery and while a student was offered a job.  She accepted the job offer to work on a 457 visa to gain experience.  She decided she wanted to stay permanently in Australia in January 2015.

23. As explained to the applicant at the hearing, a 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that the applicant would be able to remain in Australia on a permanent basis.  The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time as a ‘Café or Restaurant Manager’ for Charanjit Singh and Manjit Kaur ATF Rajan Family Trust.  This purpose no longer exists.  However the applicant has now provided evidence of a new approved nomination for the position of ‘Cook’ which is valid until 6 November 2016.  While the Tribunal cannot be certain that such a nomination will ultimately result in the applicant being granted another 457 visa, it is at least satisfied that her skills and experience are in need and sought by another employer to fill a gap in its workforce.

    The circumstances in which the ground for cancellation arose and the extent of compliance with visa conditions

24. The applicant has not complied with condition 8107(3)(b) ’if the holder ceases employment – the period which the holder ceases employment must not exceed 90 days’.

25. While the Tribunal is not satisfied that the applicant advised the department of her changed circumstances and that she was no longer eligible for the 457 visa which she was granted for a period many months, it is satisfied that during this time she was earnestly seeking alternative employment; albeit unsuccessfully for some time.  As discussed with the applicant at the hearing, the onus was on her to advise the Department of any change in her circumstances and she had failed to do so until April of the following year.  Her explanation for this was that she did not know about the visa conditions and that her representative told her the department would send her a letter and after this she had 90 days to find a new employer.  While the Tribunal does not find this explanation credible (especially as she provided to the Tribunal a copy of an email in which she specifically asked her former sponsor “I am writing about my immigration status.  I want to know which day you have informed immigration you have shut down your business”), it accepts that the applicant did not voluntarily cease working with her former sponsor and that she sought every opportunity to seek alternative employment.  The Tribunal is therefore prepared to accept that the applicant's failure to commence employment with a new business sponsor within the 90 days allowed for in the Regulations was due to the difficulty of securing an employer and the necessary steps the sponsor must undertake to apply for a standard business sponsorship and nomination to be approved.  Therefore, despite the Tribunal’s concerns about the applicant’s lack of initiative in contacting the department about her changed circumstances, it nonetheless accepts that the breach of the visa condition arose because the applicant's employer ceased operating and the restaurant was closed down.  It observes that that these circumstances are not the fault of the applicant and that therefore the breach was occasioned through no fault of her own.  Therefore the Tribunal is satisfied, in this instance, that the breach of condition 8107 was not significant.

    Past and present conduct of the visa holder towards the department

26. As noted above the applicant did not advise the department that she had ceased employment with her sponsor.  She did not respond to the NOICC because she claims she never received it and later lodged a complaint about this with Australia Post.  The Tribunal notes the NOICC was returned to the department unclaimed.  While there is no evidence before the Tribunal that the applicant breached a condition(s) of her previous student visas, it nonetheless finds that her conduct towards the department in relation to this 457 visa has not been satisfactory.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

27. The applicant’s visa was cancelled on 17 September 2015.  The applicant’s oral evidence was that if the Tribunal did not find in her favour she would return to India and apply for a nomination offshore.  Based on this the Tribunal is satisfied that there is no evidence before it that cancellation would result in the visa holder being subject to detention, or that indefinite detention is a possible consequence of cancellation.

    Degree of hardship and consequential cancellations under s.140

28. The applicant claims that the visa cancellation would cause hardship because her former sponsor still owes her superannuation and annual leave payments.  She said she has not yet lodged a claim for these.  She has a new nomination and if she has to go back to India and apply from there it will disadvantage her new employer because she will have to stop work.  It will affect her life in a big way because she has lived here for the past 5-6 years and has done everything here.  Her husband has been working as a kitchen hand at an Italian restaurant for 20 hours a week and he would also need to leave his job and this would affect his employer.  In her written submission the applicant contended that the family will face severe financial difficulties as they have spent all their savings to further their study and careers in Australia and if they have to return to India, they would have start all over again.

29. While the Tribunal accepts that the applicant and her husband leaving Australia would involve some financial and emotional hardship, it is nonetheless of the view that this hardship would not be significant given the qualifications and employment experience the applicant has gained in Australia.  However the Tribunal does accept that the applicant’s new proposed sponsor, for whom she is already working, will suffer hardship if she had to depart Australia and apply from oversea for another 457 visa.  As the 457 visa program exists to assist Australian employers to fill skills gaps in their workforce, the Tribunal is satisfied that this hardship would be significant for the applicant’s employer and proposed sponsor.

    Whether any international obligations would be breached as a result of the cancellation

30. There is no evidence before the Tribunal regarding this matter and no such matters were raised by the applicant or her representative.  The Tribunal asked the applicant if she had any fears for her safety and/or security in returning to India and she said she did not.

31. The Tribunal has taken into account all of the available evidence in this case.  Having considered all the circumstances the Tribunal is persuaded that it should exercise its discretion not to cancel the visa.

32. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

33. 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.

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

    Karen Synon
    Member