1602468 (Migration)

[2016] AATA 4311

1602468 (Migration) [2016] AATA 4311 (31 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs RAJWINDER KAUR GILL
Mr JASWINDER SINGH
Master DILPREET SINGH

CASE NUMBER:  1602468

DIBP REFERENCE(S):  BCC2015/2441626

MEMBER:Antonio Dronjic

DATE:31 August 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 31 August 2016 at 2:34pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 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(g) on the basis that the first named applicant’s sponsor (N & R Trading Pty Ltd ATF N&R Unit Trust) was cancelled and barred for 2 years under s.140M of the Act. 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.

4. According to the primary decision record provided to the tribunal by the review applicant, the first named visa applicant was granted a subclass 457 Business (Long Stay) visa on 26 April 2013 and was valid until 26 April 2017. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was N & R Trading Pty Ltd. The occupation listed for the first named visa applicant was Cook. As a result of departmental monitoring, the business sponsor was barred and sponsorship cancelled under s.140M on 31 July 2015.

5. A notice of intention to consider cancellation (‘NOICC’) was e-mailed by the Department to the review applicants on 12 February 2016. As they have failed to respond to this notice, the delegate proceeded to cancel the applicants’ visas on 23 February 2016.

6. The applicants applied to the tribunal on 26 February 2016 for review of the delegate’s decision and with their application submitted a copy of the primary decision record. The applicants were represented in relation to the review by their registered migration agent.

7. On 5 August 2016, the tribunal wrote to the applicants advising that it had considered all the material before it relating to the applications but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicants to give oral evidence and present arguments at a hearing scheduled for 31 August 2016.

8. The first named applicant (thereafter the applicant) appeared before the tribunal on 31 August 2016 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by her registered migration agent who attended the tribunal hearing.

9. The tribunal began the hearing by explaining the role of the tribunal and the purpose of the hearing. The tribunal explained why it does not have jurisdiction in respect of the secondary applicants. The tribunal further explained that the applicant’s visa was cancelled under s.116 (g) of the Act as the delegate concluded that the ground prescribed in r.2.43 (1)(l)(iv) applied in this case. According to the primary decision record, the applicant’s sponsor, N & R Trading Pty Ltd, was barred for two years and sponsorship cancelled on 31 July 2015.

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, which may include matters of government policy, as set out in the departmental guidelines.

11. The applicant is 30 years of age female national of India. She is married and has a child who is six years old. Her two sisters and parents live in India and her brother in England. Her father is farmer and her mother is a house wife. Neither the applicant nor her husband owns any land or real estate in India under their names. Prior to arriving in Australia in April 2009, she has completed two years of a Bachelor of Arts Degree and a course to work as a nanny. She did not work in India. Neither she nor her husband has relatives in Australia. Her husband completed the equivalent of year ten and worked at his parent’s farm in India prior to arriving in Australia.

12. In Australia, the applicant has completed a Certificate III in Cookery in 2011 and a Diploma in Business Management in 2012. While undertaking her studies, the applicant worked as a Cook on a part time basis.

13. She gave evidence that her former employer, N & R Trading Pty Ltd, operated three restaurants in Melbourne. She commenced her part time employment as a cook at the restaurant located in Footscray, some seven months prior to being granted a 457 visa on 26 April 2013. She continued to be employed at the restaurant until July 2015. She confirmed that the Department contacted her in August 2015 by e-mail and notified of the cancellation of N & R Trading Pty Ltd sponsorship. She stated that, upon receiving this e-mail, she did contact the department but attempted to find a new employer.

14. She gave evidence that despite of her efforts, as of today she was unable to secure sponsorship and nomination from any other Australian business. She stated that she is a holder of a bridging visa “E” with no work rights and that, because she is not allowed to work, she was unable to find employment in Australia. She stated that neither she nor her husband worked in Australia since their visa was cancelled in February 2016.

15. I inquired how she and her family are managing to stay in Australia without being able to generate any income. She stated that they are paying monthly rent of $9,000 and that the cost of her child’s primary school is $9,000 per year. She gave evidence that her husband borrowed approximately $15,000 from his friends and that no formal agreement was signed with the friends who landed the money.

16. I indicated to the applicant that, based on the evidence before me, I am satisfied that the ground for cancellation is made it out and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy, as set out in the departmental guidelines. I explained what are considered to be relevant circumstances and asked the applicant if there is anything that she wants to raise with the tribunal.

17. She stated that loss of job was not her fault and that she did everything she could to find another sponsoring business but was unable to do so because she has no work rights attached to her bridging visa. I asked if she applied to the Department to change the conditions of her bridging visa E and she stated that she was not aware that she can do that. I noted that she is represented by a migration agent who should be able to advise on these matters. She stated that she is not paying any money to her migration agent. She further stated that she did not receive a notice of intention to consider cancellation (‘NOICC’).

18. 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

19. 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(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?

20. 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)(IV) is relevant.

21. Information in the delegate's decision record, which was submitted by the review applicant to the tribunal, indicates that the review applicant's sponsoring employer in the most recently approved nomination for the visa, N & R Trading Pty Ltd, was barred for two years and sponsorship cancelled on 31 July 2015 under section 140 M.

22. Based on the evidence before it, including the oral evidence from the applicant, the tribunal finds that N & R Trading Pty Ltd had its sponsorship cancelled on 31 July 2015.

23. Accordingly, a ground prescribed in r.2.43(1)(l)(iv) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder. For these reasons, the tribunal is satisfied that the ground for cancellation in s.116(g) 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

24. 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’.

25. As regards the application of these policy guidelines, the tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J in Re Drake (No 2) (1978-1980) 2 ALD 634. Indeed, in Visnumolakakala v Minister for Immigration [2006] FMCA 1209 Smith FM 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 therefore are incapable of being elevated into legally necessary or relevant considerations.

26. The guidelines include factors such as the purpose of the applicant's travel to Australia; the degree of hardship that may be caused by the cancellation to the applicant and other family members; the circumstances in which the ground for cancellation arose; the applicant's past and present behavior towards the Department; whether the cancellation would lead to removal in breach of Australia's obligations under relevant international agreements, including Australia's non-refoulement obligations; and any other relevant matters raised by the applicant. The tribunal considered matters raised by the review applicant in her oral evidence given during the hearing.

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

27. The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The purpose of the visa is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.

28. 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. It has now been more than six months since the applicant’s visa was cancelled and more than 12 months since she last worked for her former employer.

29. 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 26 April 2017.

30. The purpose of the applicant's stay in Australia had been to work for the sponsor as a Cook and to reside temporarily for that purpose. The sponsorship was cancelled on 31 July 2015. According to the review applicant evidence, no sponsorship or nomination was secured from any other Australian business. The review applicant’s visa was cancelled for reasons beyond her control and the cancellation is therefore an unfortunate one. The tribunal has weighed this against the fact that the review applicant had ample time to find a new sponsoring employer.

    Circumstances in which ground of cancellation arose.

31. 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.

    The degree of hardship that may be caused to the visa holder

32. I accept that the applicant and her family have been living in Australia for more than seven years. I also accept that leaving Australia may involve some hardship to the applicant and her family, but I am not of the view that this hardship would be significant. There is no evidence before me to indicate that the applicant and her husband would not be able to re-establish themselves in India where majority of their family is currently living, given their qualifications, employment background and employment experience. 

33. I considered the consequences and note that 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.

34. Balanced against any potential hardship to the applicant and her family that may result from the visa cancellation, is the fact that the applicant and her family came to Australia on temporary visas which create no expectation of remaining in Australia permanently. 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. This purpose has been lost and I give significant weight to this consideration.

    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

35. 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.

36. 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

37. 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.

    The visa holder’s past and present behaviour towards the department

38. I accept that the applicant has been co-operative with the Department.

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

39. 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).  

40. 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

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

    Any other relevant matters raised by the visa holder

42. The tribunal considered the review applicant’s claims that that loss of job was not her fault and that she did everything she could to find another sponsoring business but was unable to do so because she has no work rights attached to her bridging visa.

43. Although not directly relevant to consideration of the discretion to cancel the visa, the applicant stated that she did not receive a notice of intention to consider cancellation (‘NOICC’). I note that the NOICC and the decision record of 23 February 2016 were sent to the same e-mail address provided by the applicant. The applicant did not claim that she did not received decision record related to the visa cancellation.

44. 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

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

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

    Antonio Dronjic
    Member