1608525 (Migration)

[2016] AATA 4403

1608525 (Migration) [2016] AATA 4403 (16 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs POONAM SHARMA
Mr JAGTAR SINGH
Mr SAMARTH SINGH
Mr MEHTAB SINGH

CASE NUMBER:  1608525

DIBP REFERENCE(S):  BCC2016/1164213

MEMBER:Rania Skaros

DATE:16 September 2016

PLACE OF DECISION:  Sydney

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 16 September 2016 at 11:33am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 June 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)(g) on the basis that a prescribed ground for cancelling the visa applies to the visa holder. 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. The applicants appeared before the Tribunal on 16 September 2016 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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)(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?

8. 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) is relevant:

   (l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor )--that:

   …………

   (iv)  the sponsor has been cancelled or barred under section 140M of the Act; or

9. The evidence, which is noted on the decision record and was provided to the Tribunal, indicates that the applicant was nominated by All Spice Indian Cuisine Pty Ltd (the former sponsor) for a Subclass 457 visa. The applicant was granted the visa on 3 September 2013 for a period of 4 years.

10. On 28 April 2016 the former sponsor was barred for a period of 5 years under s.140M. It was this event that triggered the notice of intention to consider cancellation under s.116 of the Act that was sent to the applicant on 12 May 2016.

11. In responding to the notice, the applicant provided a statutory declaration and supporting documents. The applicant claimed that the ground of cancellation does not exist because of her and her family’s circumstances. The applicant went on to detail the history of her employment with the sponsor, the need to take maternity leave early due to complications with her pregnancy, her lodgement of the Subclass 186 visa and the subsequent withdrawal of that application, the lack of communication from her sponsoring employer about the bar and the winding up of the company which was placed under external administration, and the emotional and financial difficulties experienced by her and her family. The applicant stated that the bar placed on her former sponsor and business ceasing operation were factors beyond her control. She claimed that she has complied with all the conditions of her visa.

12. The Tribunal has considered the applicant’s claims, and while they are relevant to the exercise of the Tribunal’s discretion, nothing in what the applicant claimed establishes that the ground of cancellation does not exist.

13. The evidence, which has not been refuted by the applicant, indicates that the sponsor has been barred under s.140M of the Act. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(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

14. 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’.

15. The Tribunal first considered the purpose of the applicant’s travel and stay in Australia. The applicant travelled to Australia as the holder of a student visa. She subsequently applied for and was granted the Subclass 457 visa. The Subclass 457 visa is a temporary work visa that permits a holder to remain in Australia for a specified period to work in an approved occupation for an approved sponsor. The applicant was nominated in the occupation of Restaurant Manager to work for All Spice Indian Cuisine Pty Ltd. In April 2016 All Spice Indian Cuisine Pty Ltd was barred for a period of 5 years under s.140M and this triggered the cancellation of the applicant’s visa. Although a new nomination in respect of the applicant has been lodged by another approved sponsor that nomination is still pending. The Tribunal is concerned that without an approved nomination the applicant would not be able to fulfil purpose of the Subclass 457 visa and would breach the mandatory condition 8107 that is imposed on the visa. Conversely the nomination that has been lodged in respect of the applicant is by an approved sponsor and is for the same occupation that was filled by the applicant with her former sponsor. At the hearing the representative submitted that all relevant documentation requested by the Department in relation to the new nomination has been provided, that the employer has had a nomination previously approved and that the business was experiencing growth and had a need for employing another Restaurant Manager. The evidence before the Tribunal suggests that there is some prospect of the nomination being approved and the Tribunal gives some weight to this factor in favour of not cancelling the visa. 

16. The applicant claims to have complied with all the conditions of her visa and there is no evidence before the Tribunal to suggest this is not the case. The Tribunal is also satisfied on the evidence before it that the applicant has generally been cooperative with the Department. The Tribunal gives some weight to the fact that the applicant’s visa was not cancelled due to a breach on her part.

17. The applicant stated that she, her spouse and two children aged 5 and 6 months will suffer emotional and financial hardship if her visa is cancelled. She stated that she has been living in Australia for the last 7 years. She wishes to raise her children in Australia. Her children were born in Australia and her eldest currently attends the local primary school. The Tribunal acknowledges that the visa applicant has been in Australia since 2009, however, during that time she has only ever held temporary visas. These visas, namely the student and 457 work visas, were granted to the applicant for a stated purpose and for a specified period of time and do not entitle the applicant and her family to remain indefinitely in Australia. The Tribunal acknowledges that the applicant and her family would prefer to remain in Australia and that returning to India after being in Australia for 7 years may cause some emotional difficulties however, the applicant and her family are citizens of India and the Tribunal is not satisfied that they would not be able to return to their country of origin and re-establish themselves there. The Tribunal acknowledges that the applicant’s children were born in Australia, however, they are Indian citizens and are still relatively young and would not, in the Tribunal’s view, have established strong emotional ties to Australia.  The Tribunal considers that the children can attend school in India and would be able to establish themselves there with their parents and with support of extended family. The Tribunal gives limited weight to the emotional hardship that may be experienced by the applicant and her family.

18. The Tribunal has considered the financial hardship that may be experienced by the applicant and her family. The Tribunal accepts that if the applicant’s visa is cancelled, her spouse’s visa will also be cancelled and he will be unable to remain and work in Australia. The Tribunal is not satisfied however that the applicant and her spouse would not be able to obtain jobs in India given their experience and skills. The Tribunal gives limited weight to the financial hardship that may be experienced by the applicant and her family.

19. It was submitted that the circumstances in which ground of cancellation arose were beyond the applicant’s control.  The applicant gave evidence that she commenced employment with her former employer in 2013 and it was only while she was on maternity leave in early 2016 that she was informed that her employer had been sanctioned and that her visa was subject to cancellation. The applicant claimed that her employer had not communicated with her about the business’ problems. She stated that she had to withdraw her permanent residence visa, Subclass 186, after finding out that the business was placed under external administration and ceased operating. The representative referred to the Departmental policy which indicates that ‘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”. The Tribunal acknowledges that the ground of cancellation arose as a consequence of the applicant’s former employer being sanctioned and accepts that this was a circumstance over which the applicant had no control. The Tribunal gives considerable weight to these circumstances in favour of not cancelling the visa.

20. The Tribunal accepts that the applicant worked for her former nominating employer on a Subclass 457 visa and became eligible to apply for permanent residency under the employer nomination, Subclass 186 visa. While it is unfortunate that the applicant was not able pursue this application due to the employer being sanctioned and ceasing operation, it is the intention of the legislation that applicants cannot meet the requirements for the grant of the visa if the position for which they were nominated is not approved. Accordingly, The Tribunal gives limited weight to this factor in its considerations.

21. The Tribunal accepts that the visas of the applicant’s spouse and children would be consequentially cancelled under s.140 however the applicant’s family were only entitled to their visas on the basis of being a member of her family, and it is the intention of the legislation that members of the same family have the same visa status. Accordingly, the Tribunal gives limited weight to this factor in its considerations.  

22. The applicants have not claimed, and there is no evidence to suggest, that any international obligations would be breached as a result of the cancellation. The Tribunal accordingly gives no weight to this factor in its considerations.

23. The Tribunal has also considered the consequences of the cancellation and accepts that if the applicant’s visa is cancelled she and her family will be affected by s.48 of the Act and will have limited options to apply for another visa in Australia. The applicant and members of her family may also be subject to indefinite detention if they do not apply for another visa or depart Australia voluntarily. The Tribunal notes however that these are the intended consequences of the legislation in respect of cancellations under s.116 and as such the Tribunal gives these factors limited weight in its considerations.

    Conclusion

24. Having considered the relevant circumstances, the Tribunal is of the view that the factors for cancelling the visa are outweighed by the factors for not cancelling the visa, including the circumstances under which the ground for cancellation arose, which the Tribunal has accepted were beyond the applicant’s control, being nominated by another approved sponsor and complying with visa conditions.

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

    DECISION

26. 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.

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

    Rania Skaros
    Member