1609610 (Migration)

[2016] AATA 4674

1609610 (Migration) [2016] AATA 4674 (18 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nazema Begum
Mr Zaffar Abdul

CASE NUMBER:  1609610

DIBP REFERENCE(S):  BCC2016/973761

MEMBER:Denise Connolly

DATE:18 November 2016

PLACE OF DECISION:  Sydney

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 second named applicant.

Statement made on 18 November 2016 at 5:44pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 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 applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was granted a Subclass 457 visa on 31 July 2014 having been sponsored by the Lester Partnership Pty Ltd. The Department was informed on 9 October 2014 that the second named applicant was added to the visa as a dependent. On 22 October 2014 the business’ sponsorship was transferred to Sydney IT Careers Pty Ltd (the sponsor).

3. The decision record also confirms that the Department cancelled the sponsor’s approval as a standard business sponsor on 2 December 2015 under s.140M(1)(a) and barred the sponsor for 2 years from making future applications for approval as a standard business sponsor. On 11 May 2016 the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant responded and the delegate states she took those submissions into account, however cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applied to the applicant, that is, the ground in r.2.43(1)(l) that the sponsor has been cancelled or barred under section 140M of the Act.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant. This was explained to the applicants at the hearing.

6. The applicants appeared before the Tribunal on 12 September 2016 to give evidence and present arguments. The applicant had not requested an interpreter in the response to the hearing invitation. The Tribunal formed the view that the applicant was unable to give her evidence effectively without the assistance of an interpreter. A telephone interpreter was arranged but the Tribunal considered that process ineffective and decided to adjourn the hearing to arrange face to face interpreting. The Tribunal invited the applicant to another hearing on 14 October 2016. The applicant provided medical evidence stating that she was unwell in the period 30 September 2016 to 16 November 2016 due to her pregnancy. The Tribunal agreed to postpone the hearing until 18 November 2016. The hearing on 18 November 2016 was conducted with the assistance of an interpreter in the Urdu and English languages. The Tribunal also received oral evidence from the second named applicant.

7. The applicants were represented in relation to the review by their registered migration agent who also attended the hearings.

8. The Tribunal notes there is a s.375A certificate on the Department’s file however it has formed the view that it is invalid as the reason given is merely that the folios contain information related to Departmental procedures. The Tribunal has considered the material but does not consider it relevant to the applicant’s review because it relates to other parties not the subject of the review, and processes undertaken by the Department to prioritise the caseload.

9. 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

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)(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?

11. 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), that the sponsor has been cancelled or barred under section 140M of the Act, is relevant.

12. In this case the delegate’s decision record confirms that the Department cancelled the sponsor’s approval as a standard business sponsor on 2 December 2015 under s.140M(1)(a) and barred the sponsor for 2 years from making future applications for approval as a standard business sponsor.  

13. The Tribunal finds therefore that a prescribed ground for cancelling the visa applies to the applicant.

14. 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

15. 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’.

16. In response to the Department’s NOICC the applicant provided evidence that a new sponsor, Abdul Afroz Ashad, of Cumberland Partners had on 10 February 2016 lodged applications for approval as a Standard Business Sponsor and nomination approval, nominating the applicant. The delegate’s decision record, provided to the Tribunal by the applicant, confirms that the nomination application was refused by the Department on 21 June 2016. The delegate notes the applicant’s new sponsor then lodged another nomination application on 23 June 2016 however she noted that the new nomination application had been lodged more than 90 days after the applicant ceased employment. The delegate also noted that the applicant had breached condition 8107 which attached to her visa, which states that the period during which the visa holder does not work for the sponsor must not exceed 90 days. She noted the applicant had not been employed by the sponsor for a period exceeding 90 days.

17. At the hearing the Tribunal explained the relevant law and gave the applicant an opportunity to provide her evidence in relation to the discretionary factors to be considered by the Tribunal and any other relevant matter. The following summary of the evidence she provided at the hearing.

18. The applicant confirmed that she was first granted the Subclass 457 visa in July 2014. Her first sponsor was Lester Partnership. She did not in fact work for Lester Partnership as the sponsorship was taken over by Sydney IT Careers where she worked as an accountant. She was not aware that Sydney IT Careers was being monitored by the Department or that their sponsorship had been or cancelled or that they had been barred. She had heard rumours that they were having difficulties with the Department but she was not aware of the details. She was not interviewed by the Department. She stopped working for Sydney IT Careers in December 2015. The business told her that they were having issues with the Department and she would need to find another employer. She did not personally approach the Department. However she did look for another employer and she was offered sponsorship by Abdul Afroz, of Cumberland Partnership, an accounting firm. It has two offices, one in Liverpool and the other in Riverwood. She was to work on a full-time basis. She started working for Cumberland in July when she got work rights.

19. The applicant told the Tribunal that Cumberland’s first nomination application of which she was the subject was refused in June 2016 because of the salary that she was to be paid. Her Subclass 457 visa was then cancelled. Cumberland Partnership then made another nomination application which was also refused on 3 November 2016. The applicant is of the view that, had she been notified earlier of the Department’s intention to consider cancellation, she would not be in this situation.

20. With respect to the applicant’s purpose for staying in Australia and any compelling need to remain here, the applicant indicated that she would not have the same career opportunities in India. She wishes to remain in Australia to pursue a career and explore opportunities. She confirmed that she wishes to reside in Australia permanently.  She is concerned that she will be ‘blacklisted’ because she will have a bad record here if the visa is cancelled. The Tribunal raised with the applicant that the purpose of the Subclass 457 Visa program is not for the applicant to explore opportunities; it is for Australian businesses to employed skilled workers to fill positions temporarily that cannot be filled by local workers. The Tribunal noted that the Subclass 457 visa is a temporary visa, and not a permanent visa which appeared to be the visa that the applicant wished to pursue.

21. The Tribunal noted that the delegate had recorded that the applicant had breached condition 8107. The applicant indicated she did not know about this. She was told by her employer that she would have to look for another sponsor. There had been rumours in the business for about three or four months that the business was having issues with the Department. She was not interviewed by the Department.

22. With respect to hardship that may be caused by a visa cancellation, the applicant indicated that she has suffered a lot of hardship in the past year and she has exhausted her savings. Her husband is very stressed by the situation. The Tribunal asked if the parties had considered returning to their home country. She indicated she does not want to go home because she and her husband want to achieve something here. Also she is six months pregnant. She indicated that she wishes to remain in Australia to pursue career opportunities.

23. With respect to the circumstances in which the ground for cancellation rose, the applicant indicated that when she approached her new sponsor, Cumberland more than 90 days since she left Sydney IT Careers had already passed. This was because the Department did not inform her earlier that it was considering cancellation. She confirmed that she did not approach the Department in the interim. She confirmed that she is still not the subject of an approved nomination that has not ceased.

24. The applicant asserted that it is not her fault that she is in this situation. Her past and present conduct towards the Department has been good. She has always responded to any request for documents. The Tribunal discussed with the applicant the consequential cancellation for her husband and the impact on him if the Tribunal affirms the decision to cancel the visa. She confirmed that he is only working 2 or 3 days a week at odd jobs.

25. With respect to any mandatory legal consequences the applicant confirmed that she and her husband were granted Bridging visas E as soon as the Department took action to cancel her Subclass 457 visa. With respect to Australia’s international obligations, the applicant indicated that she does not want to return to India because she wants to pursue a career here. She indicated that she wants to have her family here and give her children opportunities. She stated that women in India do not enjoy the same rights.

26. The Tribunal asked the applicant if she had any other evidence to give about any other relevant matter which she wanted the Tribunal take into account. The applicant wants to develop her career in Australia. She does not want to return to India. She asked to be given another chance to find a sponsor.

27. The Tribunal also took evidence from the applicant’s husband. He indicated that the Department has not given her a chance. He discussed the decision to refuse Cumberland’s first nomination application which he thought was incorrect. He wants his wife to have the chance to have a better life. He and his wife are very stressed and want another opportunity to find another sponsor.

28. The Tribunal explained that it would now be proceeding to make its decision.

    Assessment of the evidence

29. With respect to the purpose for remaining in Australia the Tribunal accepts that the applicant wishes to stay in Australia permanently, to have her family here, and to pursue career opportunities. However it notes that she has not been able to secure sponsored skilled employment, the subject of an approved nomination, since she ceased working for her former sponsor, Sydney IT Careers, 11 months ago in December 2015. While it accepts that the applicant attempted to secure employment with a standard business sponsor, as the subject of an approved nomination, it notes that she has not been able to achieve this. Despite Cumberland making 2 applications for nomination approval, on the applicant’s evidence, both of those nomination applications have been unsuccessful. The Tribunal considers that the applicant has had a reasonable opportunity to secure sponsored employment since ceasing her employment with Sydney IT Careers 11 months ago. However she has not been able to achieve this.  It gives this factor significant weight. The Tribunal also notes that the applicant and her husband wish to remain in Australia permanently for the applicant to pursue her career, and bring up a family, and that they do not want to return to India.  As discussed with her at the hearing the Tribunal notes the Subclass 457 visa is a temporary visa granted for the purpose of filling a temporary labour shortage in a skilled area. While the Tribunal accepts the applicant is pregnant and now wants to have her family here, it is not satisfied there is any compelling need for the applicant to remain in Australia.

30. The Tribunal accepts the applicant’s evidence that there has been no other non-compliance except with respect to condition 8107. The delegate has not recorded any other visa condition breaches.  The Tribunal notes however that it is now 11 months since the applicant ceased working for the sponsor.

31. Regarding the degree of hardship which may be suffered if the visa is cancelled the Tribunal accepts that the applicant has spent her savings remaining in Australia. It also accepts that a visa cancellation will be disappointing, stressful and emotionally upsetting for the applicants as they have expressed a strong desire to remain in Australia. However it notes the applicant is an accountant, with employment experience, and it is not satisfied that the applicant will suffer significant or serious hardship as a consequence of a visa cancellation. Also the Subclass 457 visa is a temporary visa and the Tribunal is not satisfied there is any evidence that the applicant would have had a real expectation that she and her husband would be able to remain in Australia on a permanent basis. Overall the Tribunal is of the view any hardship that may be caused by a cancellation will not be significant or serious.

32. With respect to the circumstances in which the ground for cancellation arose the Tribunal accepts that the applicant was not responsible for her ceasing employment with Sydney IT Careers. Nor does the evidence suggest that she was she responsible for the Department’s decision to cancel Sydney IT Careers as a standard business sponsor and bar the business from making future applications for 2 years.  It is a consequence of the Department’s decision to take action under s.140M against the sponsor that led to the ground for cancellation, not the applicant’s conduct. The Tribunal takes this into account.

33. The Tribunal also accepts the applicant’s evidence that her conduct towards the Department has been appropriate and that she has responded to the Department’s requests accordingly. The delegate has not raised concerns regarding her conduct, apart from the breach of condition 8107.

34. There is no evidence to suggest there has been a breach of r.2.43(1)(la). The Tribunal accepts however that the second named applicant’s visa will be automatically cancelled as a consequence of the visa cancellation. However there is no evidence to suggest the parties will not be able to remain together as the result of a cancellation, or that the second named applicant will suffer any significant hardship because of the consequential cancellation.

35. With respect to mandatory legal consequences the applicant has raised a concern that she will be ‘blacklisted’.  She has told the Tribunal that as soon as the Department cancelled the visas she and her husband were granted Bridging E visas. As a consequence the Tribunal is satisfied that a cancellation would not immediately result in the applicants being unlawful and subject to detention. It is satisfied the applicant will not be indefinitely detained as a possible consequence of cancellation, so long as she departs Australia before her Bridging E visa ceases. The Tribunal accepts the applicants may be required to go offshore to make another visa application. However so long as they depart Australia before their Bridging E visas expire they will not be affected by certain risk factors with respect to future visa applications. It is not satisfied she will be ‘blacklisted’.

36. Regarding the breach of any international obligations, the applicant has stated that women do not enjoy equal rights in India and she wants to bring up her children here so they have opportunities unavailable in India. The Tribunal accepts that this may be the case. However it is not satisfied, on the basis of the applicant’s evidence about limited career opportunities in India, that Australia’s international obligations would be breached as a result of the cancellation.  

37. The Tribunal has considered all of the relevant evidence and weighed up all of the circumstances, both individually and cumulatively, in the applicant’s case. It accepts that the applicant, who is pregnant, wishes to remain in Australia permanently to have her family and pursue career opportunities. However this is not the purpose of the Subclass 457 visa program which is to temporarily fill vacancies in skilled positions. Despite having 11 months since she left her employment with the sponsor Sydney IT Careers, and 2 nomination applications by Cumberland, the applicant is not the subject of an approved nomination. It does not agree to give the applicant more time to pursue another sponsor because it considers 11 months to be a reasonable period to do this. The Tribunal gives these factors significant weight. The Tribunal is not satisfied that the Department not contacting the applicant until June 2016 has hindered her attempts to secure sponsorship. Her new sponsor Cumberland has had 2 opportunities to have a nomination approved both of which were unsuccessful. The Tribunal accepts that the applicant is not responsible for the circumstances in which the ground for cancellation arose.  However she has now been in breach of condition 8107 for several months having been unsuccessful at securing sponsored employment with a standard business sponsor who has had a nomination approved.  The Tribunal accepts there may be some financial hardship and disappointment because the applicants do not want to return to India. It accepts that they will be stressed by a cancellation. However it is not satisfied any hardship will be significant or serious. In any case while the applicant and her husband have a desire to reside permanently in Australia the Tribunal has not seen evidence to indicate the applicant had a real expectation that she would remain here permanently.  The Tribunal accepts the applicant’s breach of condition 8107 appears to be her only non-compliance, and that she has been appropriate and open in her dealings with the Department. However it has now been 11 months since the applicant ceased working with the sponsor in the nominated occupation and the Tribunal gives this factor significant weight. While there is a consequential cancellation for the applicant’s husband, there is no evidence to suggest this will result in the parties being separated by such a cancellation, or that he would suffer any significant hardship as a result. The Tribunal is also not satisfied that international obligations would be breached as a result of a cancellation. Overall, in weighing up all of the evidence and circumstances, the Tribunal finds that cancelling the applicant’s visa is the correct decision.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

3. The Tribunal has no jurisdiction with respect to the second named applicant.

   Denise Connolly
   A/g Senior Member