1601796 (Migration)

[2016] AATA 4087

1601796 (Migration) [2016] AATA 4087 (13 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  DALJIT KAUR
Mr NAVJOT SINGH
Miss ANNANYA BADHAN

CASE NUMBER:  1601796

DIBP REFERENCE(S):  BCC2015/3724722

MEMBER:Antonio Dronjic

DATE:13 July 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 other applicants.

Statement made on 13 July 2016 at 12:45pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 February 2016 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 breached condition 8107(3)(b) as the period during the applicant ceased employment exceeded 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. 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.

   Background to the cancellation of the applicant’s visa

4. The decision record of 15 February 2016 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The tribunal summarises those reasons and findings as follows:

   ·On 2 April 2013, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 2 April 2017;

   ·The standard business sponsor who nominated the applicant to work as a Restaurant Manager was Just Chill café Pty Ltd;

   ·On 3 September 2015, the applicant ceased her employment with the sponsoring business;

   ·On 21 October 2015, the department received a nomination application from Bajaj and Punshi & Co Pty Ltd, nominating the Ms Kaur for the position of a Restaurant Manager;

   ·On 21 January 2016, the department refused the nomination application lodged by  Bajaj and Punshi & Co Pty Ltd,

   ·A notice of intention to consider cancellation (‘NOICC’) was issued 22 January 2016;

   ·On 25 January 2016 the applicant responded in writing to NOICC by stating that she has found a new employer who lodged nomination applications with the Department within 90 days period and that the decision to refuse nomination application of 21 January 2016 could still be appealed

   ·On 15 February 2016, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the tribunal on 16 February 2016 for review of the visa cancellation and with her application submitted a copy of the primary decision record.

6. On 19 April 2016, the applicant submitted the following documents:

   ·Letter from DIBP dated 19 April 2016 as evidence that her new prospective employer, Binny Foods Pty Ltd, lodged business nomination application with the department, nominating the applicant for a position of a Restaurant Manager; and

   ·Copy of the nomination application form listing the documents submitted with the nomination application.

7. On 17 May 2016, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 12 July 2016.

8. On 5 July 2016, the applicant wrote to the tribunal advising that her new prospective employer Binny Foods Pty Ltd, lodged a business nomination application with the department, nominating her a position of a Restaurant Manager; submitting that she lost her job at Just Chill café Pty Ltd because her previous employer closed the business; that the nomination application lodged in October 2015 by Bajaj and Punshi & Co Pty Ltd was refused mainly because of her migration agent’s negligence and that her migration agent has failed to inform her that she received notice of intention to cancel her visa. With this correspondence the applicant enclosed a copy of the Federal Court Decision in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 and copy e-mail the applicant sent to her migration agent on 18 February 2016.

9. The applicant appeared before the tribunal on 12 July 2016 to give evidence and present arguments. The tribunal began the hearing by explaining the role of the tribunal and the purpose of the tribunal hearing. The tribunal informed the applicant that her visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that she had not complied with the condition of her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceeded 90 consecutive days.

10. The tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

11. At the commencement of the hearing the applicant submitted the following documents:

    ·Copy of the DIBP notification of the visa grant dated 3 April 2013;

    ·Copy DIBP tax invoice related to the lodgement of business nomination application by Bajaj and Punshi & Co Pty Ltd dated 21 October 2015;

    ·Copy correspondence between the applicant and her migration agent from January 2016;

    ·Copy Itinerary related to the applicant’s daughters’ travel to India on 21 February 2016;

    ·Copy correspondence between the applicant and her migration agent from February 2016;

    ·Copy DIBP tax invoice related to the lodgement of business nomination application by Binny Foods Pty Ltd dated 19 April 2016;

    ·Copy decision of the Federal Court of Australia in the matter El Masri v Minister for Immigration and Border Protection [2015] FCAFC181; and

    ·Copies of several AAT decisions not related to the current review.

12. I explained to the applicant and her husband that 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.

13. I further explained to the applicant that I am not bound to follow decisions previously made by this tribunal and that court cases she intends to rely upon relate to the question of tribunal jurisdiction and are not relevant to the current review.

14. Ms Kaur is 32 years of age citizen of India. She is married and has one daughter who is two years of age. Her parents and two siblings live in India. Her husband’s parents and three siblings also live in India. Neither she nor her husband has relatives in Australia.

15. Prior to arriving in Australia, the applicant has completed a Bachelor of Arts degree and was working as a primary school teacher in India for approximately 12 months. Her husband worked in India as an Electrical Engineer for a period of four or five years. They lived at their parent’s house and neither of them owns property under their names.

16. Ms Kaur first came to Australia in December 2008 as a holder of a student visa. She completed various courses in Australia including an Advanced Diploma in Hospitality in 2013.

17. Ms Kaur confirmed that she was granted a subclass 457 visa on 2 April 2013, and this visa was, but for the cancellation, to remain valid until 2 April 2017. She commenced her employment as a Restaurant Manager at Chill Café Pty Ltd in September 2013. She confirmed that her employment ceased in September 2015 as the owners of the business decided to close the business.

18. She stated that she was fortunate to find another employer, Bajaj and Punshi & Co Pty Ltd, who nominated her for the same position in October 2015. She confirmed in her evidence that the nomination application lodged by Bajaj and Punshi & Co Pty Ltd was refused by the department in January 2016 and that she never commenced employment at this business.

19. She further stated that she managed to find another employer, Binny Foods Pty Ltd, who was willing to offer her a position of a Restaurant Manager. She gave evidence that on 19 April 2016, her new employer lodged the nomination application with the department and that the decision is still pending.

20. She stated that she currently holds a bridging visa “E”; and that the department granted work rights both to her and her husband in March 2016. She further stated that she is and has been working as a Restaurant Manager (20-25 hours per week) at Binny Foods Pty Ltd since April 2016. She stated that the business has two owners; employs two full time Chefs and 2-3 casual waiters. The restaurant is currently opened for dinner only, six days per week. She stated that from August 2016, the owners intend to open the restaurant for lunch and extend the work hours to seven days per week. She stated that one of the two business owners is at the restaurant most nights but, because he is new in this industry, he is still learning how to operate the business.

21. She gave evidence that her husband works and has been working as a taxi driver during the past three years. The couple’s daughter lives in India with the applicant’s in-laws since February 2016. As her visa was also cancelled she is unable to travel back to Australia.

22. I explained to the applicant that, based on the evidence before me, I am satisfied that she breached the condition of her subclass 457 visa and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

23. I explained what are considered to be relevant circumstances and indicated that I will take into consideration the evidence given at the hearing as well as documentary evidence and submission provided in support of the application.

24. I asked the applicant if there is anything else that she wants to raise with the tribunal. She stated that loss of job was not her fault and that she did everything she could to find another sponsoring business. She stated that she cannot go back to India as she would not be able to find a job there. I asked if she made any inquiries about the job prospects in India. She stated that it would be difficult to get a job as a teacher, that she lived in Australia for the past eight years and would like to stay here. Her husband stated that he purchased a car in Australia and will have to pay the balance of the loan if required to depart the country. I observed that he may be able to sell the car and repay the loan.

25. I observed that prior to arriving in Australia she lived for 25 years in India. I further noted that both she and her husband completed degrees and worked in India in the past and that all of their close relatives live in India. I noted that their daughter lives in India.  I explained to the applicant that the purpose of granting a subclass 457 visa is not to enable the visa holder to live in Australia and look for the employment opportunities. It has been almost 10 months since she ceased employment with her original sponsor. I noted that that, despite of her efforts, she was unable to secure employment with the company which is an approved sponsor and which successfully nominated her for the position of a Restaurant Manager.

26. I noted that, if the primary decision is affirmed by the tribunal, she may be required to depart Australia. I further noted that her visa was to cease on 2 April 2017 in any case and there is nothing to prevent her from re-applying for 457 visa once her prospective employer has a nomination application approved by the department.

27. I ask the applicant what she will do if the nomination application lodged by her prospective employer in April 2016 is refused by the department. She stated that she will try to find another employer.

28. I noted that it is uncertain if and when the applicant will become the subject of an approved business nomination and that the tribunal is not disposed to delay making a decision indefinitely. If the tribunal were obliged to await the decision on all nomination applications relevant to an applicant, the situation could arise whereby an applicant may remain within the immigration system by continuing to seek sponsorship from different businesses, even though such applications may be continuously refused.

29. 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

30. 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?

31. 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 in 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.

32. In this instance condition 8107 was attached to the applicant's visa, which was granted on 2 April 2013, and which, but for its cancellation, was valid to 2 April 2017.

33. Based on the evidence before it, including the oral evidence from the applicant, the tribunal finds that the applicant ceased employment with Just Chill café Pty Ltd on 3 September 2015. The tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the tribunal finds that the review applicant did not comply with condition 8107(3)(b).

34. 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

35. 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’.

36. The tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

37. Nevertheless, the tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the tribunal has also taken into account the submissions and evidence it received from the applicant.

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

38. The tribunal finds that the purpose of the applicant’s stay in Australia was to work as a Restaurant Manager on a temporary basis. The applicant was unfortunate to lose her job in September 2015. The applicant decided to remain in Australia and try to find a new employer.  However, as of the day of my decision the applicant has not found an Australian company who is an approved standard business sponsor and who successfully nominated the applicant for a position within the business.

39. I accept on the evidence before me that the applicant currently works as a part time employee for Binny Foods Pty Ltd, that this business lodged the nomination application on 19 April 2016 and the decision is pending with the department.

40. I considered whether to adjourn making decision in this case until the department makes decision on the business nomination application lodged by Binny Foods Pty Ltd. I considered whether, in the circumstances of this case, whether the review applicant had a fair opportunity to find another employer and the significance of my decision to the applicant.

41. As explained to the applicant at the hearing, it is uncertain if and when the applicant will become the subject of an approved business nomination. If the tribunal were obliged to await the decision on nomination application relevant to an applicant, the situation could arise whereby an applicant may remain within the immigration system by continuing to seek nomination from different businesses, even though such applications may be continuously refused.

42. I observe that the department did not proceed with the visa cancellation until DIBP made decisions on nomination application lodged in October 2015 by the applicant’s prospective employer Bajaj and Punshi & Co Pty Ltd on 21 January 2016. It has been more than 10 months since the applicant ceased her employment with the company that was an approved standard business sponsor and that successfully nominated the applicant for a position of a Restaurant Manager within the business.

43. Based on the evidence before me, I am satisfied that the applicant was given reasonable opportunity to secure employment with an Australian company who is an approved standard business sponsor and who successfully nominated the applicant for a position within the business. I have also taken into consideration the fact that the applicant’s visa would, but for the cancellation, ceased on 2 April 2017.

44. The tribunal is not disposed to delay making a decision indefinitely. I have taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[3] and Manna v Minister for Immigration and Citizenship[4] where the Courts have held that the tribunal is not required to indefinitely defer its decision-making processes.

    [3] [2002] FCA 617

    [4] [2012] FMCA 28

1. I noted that, if the primary decision is affirmed by the tribunal, the applicant may be required to depart Australia. There is nothing to prevent the applicant from re-applying for 457 visa once she finds the new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant. Accordingly I decided not to postpone its decision-making any further.

2. I accept that the applicant attempted to find another sponsoring employer. However, as explained at the hearing, the purpose of granting a subclass 457 visa is not to enable the visa holder to live in Australia and look for employment opportunities. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The tribunal finds that this purpose no longer exists as the applicant ceased working for her sponsor on 3 September 2015. I give significant weight to this consideration.

   The reason for and extent of the breach

3. The applicant’s visa was subject to 8107 condition. She provided to the tribunal a copy of the DIBP notification of the visa grant dated 3 April 2013 which clearly sets up the conditions that her visa was subject to. I am satisfied on the evidence before me that the applicant was aware of the condition imposed on her 457 visa.

4. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in September 2015. I accept that the applicant did not voluntarily cease working with her sponsoring employer. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that successfully nominated the applicant for a position within the business within 90 days. This was contained in a condition of her visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. In this case, I accept that the applicant took steps to commence employment with another sponsoring employer. However, as of the day of this decision, the applicant had already being without sponsor that successfully nominated the applicant for a position within the business for more than 10 months. I find that the applicant’s failure to commence employment with a new business sponsor that successfully nominated the applicant for a position within the business after 10 months since the original cessation of employment represents a significant breach of condition 8107.

   Circumstances in which ground of cancellation arose.

5. Whilst the tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond her control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

   Past and present conduct of the visa holder towards the department

6. There is no evidence before me that the applicant previously breached visa conditions or that she was not co-operative with the Department.

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

7. The applicant claims that the visa cancellation would cause hardship to herself and her family, that she will not be able to find a job in India and that her husband will have to sell his car in order to re-pay the existing car loan.

8. I accept that leaving Australia may involve some hardship to the applicant and her family, but I am of the view that this hardship would not be significant. I do not accept that the applicant would not be able to re-establish herself in India, given her employment background and experience. Prior to arriving in Australia, she lived in India for 25 years. Both the applicant and her husband completed degrees and worked in India in the past. Their daughter, parents and siblings live in India.

9. Balanced against any potential hardship to the applicant and her family that may result from the visa cancellation, is the fact that the applicant came to Australia on temporary visa which create no expectation of remaining in Australia permanently. The 457 visa would have ceased in February 2017 in any event. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

10. In any event, the applicant is not prevented from re-applying for 457 visa once she finds the new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

    Whether there are mandatory legal consequences, such as whether cancellation would
    result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the
    Act which prevent the person from making a valid visa application without the Minister’s
    Intervention

11. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow her to remain in Australia. If that is the case she and her family have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

12. The tribunal is mindful that Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

    Whether there would be consequential cancellations under s.140

13. The tribunal notes that there are consequential cancellations of visas for the applicant’s husband and child. Whilst the applicant’s husband’s and child’s visa are also cancelled as a consequence of this cancellation, the tribunal notes that the consequence will not result in separation of the applicant from his husband and child.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

14. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

15. There is little in the evidence before the tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

    The impact on any victims of family violence

16. There is no evidence before the tribunal regarding this matter.

17. Having regard to the findings above and the circumstances of the case as a whole, the tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

19. The tribunal has no jurisdiction with respect to the other applicants.

    Antonio Dronjic
    Member