1602040 (Migration)

[2016] AATA 3744

1602040 (Migration) [2016] AATA 3744 (15 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Beant Kaur

CASE NUMBER:  1602040

DIBP REFERENCE(S):  BCC2015/3767842

MEMBER:Fraser Syme

DATE:15 April 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 15 April 2016 at 11:19am

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 applicant’s 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 applicant had not complied with 8107(3)(b) of the subclass 457 visa she previously held. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant included the decision record with the review application.

3. The applicant appeared before the Tribunal on 14 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sekhon, the partner of the applicant.

4. The applicant was represented in relation to the review by her registered migration agent who did not attend the hearing and provided no written submissions. A former migration agent represented her before the department. At the hearing, the applicant provided a bundle of documents, most of which were previously provided by her former migration agent to the department. The new documents were documents between the applicant and her former migration agent.

5. 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

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?

   s.116(1)(b) - non-compliance with conditions

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. Condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. An extract of condition 8107 is attached to this decision.

8. The decision of the delegate sets out that:

   a.The applicant’s subclass 457 visa was granted to her on 28 November 2013 and was subject to condition 8107.

   b.The applicant’s former employer, Rajosh Pty Ltd (“Rajosh”) was approved to nominate the applicant for the position of cook on 22 November 2013.

   c.On 22 June 2015, Rajosh notified the department the applicant ceased her employment on 12 June 2015.

   d.The department sent a notice of intention to consider cancellation (“NOICC”) of her visa to the applicant on 13 January 2016. She responded through her former migration agent on 27 January 2016.

   e.Her response to the NOICC included a statutory declaration from the applicant and a submission from the former migration agent, which relevantly included:

   i.She ceased employment with Rajosh due to some misunderstanding. No further explanation is provided.

   ii.Thereafter, she tried to find a new sponsor to nominate her in the hope of not breaching condition 8107. There are screenshots of text messages to potential employers and two job application rejection letters from recruitment agencies. She had difficulty finding work because her visa conditions prevented her from to doing trial work and she was unwilling to pay a ‘recruitment fee’ to potential employers.

   iii.A new employer, Billiluna Pty Ltd (“Billiluna”) applied on 23 September 2015 to nominate the applicant for the occupation of customer service manager.

   iv.It was for reasons outside of her control that nomination application was made 13 days outside the 90 period. The applicant’s visa should not be cancelled pending a decision on that application.

9. To comply with condition 8107(3)(b), the applicant cannot be unemployed for more than 90 consecutive days. At the hearing, the applicant told the Tribunal she knew her visa was subject to condition 8107. She stated she ceased work with Rajosh on 12 June 2015 and she remained unemployed. On the basis of that evidence, the Tribunal finds the applicant has been unemployed for more than 90 consecutive days.

10. 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

11. 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, whether the visa holder has a compelling need to travel to or remain in Australia

12. The purpose of the subclass 457 visa is to permit applicant to work in a nominated position for an approved sponsor. The Tribunal considers that the applicant has not worked with an approved sponsor since June 2015 weighs in favour of cancelation of his visa. The applicant explained her compelling reasons to remain in Australia are that she has resided here for 8 years and she does not have a job in India. The Tribunal does not consider these to be compelling reasons for the applicant to remain in Australia, but discusses those matters further below in relation to hardship.

    ·     the extent of compliance with visa conditions

13. The Tribunal considers extent of the applicant’s breach is the applicant remained not unemployed since 12 June 2015, which is significantly in excess of 90 consecutive days. The Tribunal considers that the applicant has been in breach of condition 8107 since 10 June 2015 weighs in favour of cancelation of his visa.

    ·    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

14. The applicant raised as hardship that she has resided in Australia for 8 years. She has no job in India. She and Mr Sekhon have been in a relationship for 8 years. He is an Australian citizen. Her parents are opposed to her relationship with Mr Sekhon as he is a distant relative of her mother’s family. She and Mr Sekhon have been deceiving their families about the true nature of their relationship. She cannot imagine her life without him. She has until now always had an excuse to put off pressure from her parents to marry. She is worried her parents will force her to marry another man if she returns to India as she is now 28 years old. Mr Sekhon stated the same fear about the applicant’s parents forcing her to marry another man. When the applicant travelled to India in 2013/14, it negatively affected his study performance as he was worried about her. He is concerned if she returns to India, his study will again be negatively affected.

15. The Tribunal discussed with the applicant she has shown herself to be independent and resilient in establishing her own life in Australia. She has resisted pressure from her parents in the past and would be able to do so again if her parents sought to have her marry a different man. It was open to Mr Sekhon to sponsor the applicant for a partner visa on the basis of their de facto relationship. Any separation would be temporary while that application was being processed.

16. Although not raised by the applicant during the hearing in relation to this consideration, the Tribunal has had regard too to whether Billiluna would suffer hardship if the applicant is unable to take up employment with it. The Tribunal returns to that nomination application of Billiluna below in relation to circumstances which led to the ground of cancellation.

17. The Tribunal accepts all of the reasons set out above would cause some degree of hardship to the applicant, Mr Sekhon and/or Billiluna and weigh in favour of not cancelling the applicant’s visa. The Tribunal returns to the level of that degree of hardship further below.

    ·    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

18. Much of the discussion at the hearing and evidence related to this consideration. The applicant explained she took a 6-week vacation to India at the end of 2013 and beginning of 2014 with the consent of her then employer, Rajosh. On return to work in February 2014, Rajosh refused to pay her holiday pay, citing the applicant at that time had not worked with it for a full 12 months. The applicant continued to press for her holiday pay over the next few months, without success. During that time, a number of small incidents occurred with her employer and their relationship deteriorated. One misunderstanding with her employer of a kitchen incident led to her making the ultimatum she would only return to work if Rajosh paid her outstanding holiday pay, which was refused and she chose to cease her employment. She telephoned legal aid, but did not make an appointment, instead she paid for a private solicitor who advised her she was not entitled to the holiday pay as she had not worked with Rajosh for 12 months.

19. She then began looking for employment with a new employer to nominate her. She made many unsuccessful applications. The Tribunal accepts the applicant was very pro-active in seeking to secure a new employer to nominate her. In August 2015, she was offered employment with Billiluna on the basis of her past, similar work experience. She told the Tribunal how she was critical of her former migration agent causing her to breach her visa conditions. She engaged her former migration agent to prepare a nomination application on 21 August 2015, but that migration agent delayed to make the nomination application until after the expiry of her 90 days. She told the Tribunal that nomination application was still pending and she was unaware if the department had requested any further information to finalise that application. This was her reason for providing the Tribunal with the documents between her and her former migration agent.

20. The Tribunal commented the requirements of condition 8107 are the applicant was not unemployed for more than 90 consecutive days. It was not the case her having a pending nomination application made within 90 days meant she would be in compliance with that condition. However, that Billiluna had made that nomination application would be a factor for the Tribunal to consider favourably in assessing how to exercise its discretion.

21. When asked did the applicant consider any of the circumstances which led to the ground of cancellation of her visa were outside of her control, she replied she believed they were all within her control. Regardless, the Tribunal does consider the delay in the department finalising the nomination application of Billiluna is something outside of her control. However, although she had seemingly valid reason for doing so, the Tribunal agrees that was something within the control of the applicant as it was her choice to end her employment relationship and that was the trigger for the subsequent events which led to her being unemployed for more than 90 consecutive days. Nonetheless, the Tribunal considers the circumstances leading to the ground of cancellation arising generally weigh in favour of not cancelling the applicant’s visa.

    ·    past and present conduct of the visa holder towards the department

22. The applicant told the Tribunal, conscious of the requirements of condition 8107 but had otherwise fully complied with all of the conditions of her former student visas and her subclass 457 visa. The Tribunal considers this weighs in favour of cancelling the applicant’s visa

    ·    if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

23. The applicant’s breach is not related to r.2.43(1)(la).

    ·    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

24. The applicant acknowledged if her visa is cancelled, she would be required to depart Australia or would be subject to detention. The Tribunal considers this weighs in favour of  cancelling the applicant’s visa

    ·    whether there would be consequential cancellations under s.140

25. The applicant is the visa holder. No other person will have a visa consequentially cancelled under s.140. The Tribunal considers this weighs in favour of cancelling the applicant’s visa.

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

26. The applicant stated there are no issues regarding an international obligation that would be breached if her visa was cancelled. The Tribunal considers this weighs in favour of cancelling the applicant’s visa.

    ·    any other relevant matters.

27. The applicant did not raise any other relevant matters.

28. Balancing all of these factors, the Tribunal places significant weight on the applicant not having worked for an approved sponsor under an approved nomination since September 2015, but notes she does have some prospects of doing so dependent upon the outcome of Billiluna’s nomination application. The Tribunal is willing to accept she had reasons for ceasing her employment with Rajosh, but that was something within her control, albeit subsequent events leading to the grounds for cancellation of her visa was less so within her control. The Tribunal accepts the applicant and Billiluna would experience some financial hardship if her visa was cancelled as she would be without her potential income from working with Billiluna and Billiluna would incur cost to secure another employee. The Tribunal considers the degree of that hardship though is not high. What weighs more strongly in favour of not cancelling the applicant’s visa is the hardship Mr Sekhon will experience if separated from the applicant. While the Tribunal accepts there may be some possibility of the applicant’s parents arranging for her to marry another man, the Tribunal retains doubts as to whether that may genuinely occur. The Tribunal further accepts the applicant will face hardship if she is separated from Mr Sekhon – even if that separation is for a temporary period awaiting an outcome of a spouse visa.

29. There are factors then which weight both in favour and against cancelling the applicant’s visa. On balance, though and considering the matters raised by the applicant singularly and cumulatively, the Tribunal concludes the preferable decision in this case is that the applicant’s visa should not be cancelled.

    DECISION

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

    Fraser Syme
    Member

    
    

    Attachment – Condition 8107

    8107    …

    (3)      If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)      the holder:

    (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)      unless the circumstances in subclause (3A) apply:

    (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

    (C)      if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor.

    (aa)      the holder must commence that work within 90 days after the holder’s arrival in Australia; and

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and

    (c)      if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:
               (i)      hold the licence, registration or membership; and
               (ii)      comply with each condition or requirement to which the licence,     registration or membership is subject.

    (3A)      For subparagraph (3)(a)(ii), the circumstances are that:

    (a)         if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    (aa)      if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

    (b)      the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.