1818362 (Migration)

[2019] AATA 2384

1818362 (Migration) [2019] AATA 2384 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818362

MEMBER:Sheridan Lee

DATE:15 April 2019

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 second named applicant.

Statement made on 15 April 2019 at 9:24am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry(Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – breach of condition – employment conditions – not been working for sponsoring employer for more than 90 consecutive days – failed to secure new sponsor – non-compliance substantial – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189, 198, 348
Migration Regulations 1994, Schedule 2,

CASES
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
COT15 v Minister for Immigration and Border Protection (No1)[2015] FCAFC 190
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Rani & Ors v MIMA (1997) 80 FCR 379
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Tien & Ors v MIMA (1998) 89 FCR 80
Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 June 2018 made by a delegate of the Minister for Home Affairs 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 primary applicant (the applicant) failed to comply with visa condition 8107(3)(b) of her Subclass 457 visa. 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. 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 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.

4. The applicant appeared before the Tribunal on 6 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [father].

5. 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

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.

   Background

7. The decision of the delegate of the Minister for Immigration sets out that the Department of Immigration and Border Protection (now the Department of Home Affairs) approved a nomination by [Business 1], trading as [Café 1], to sponsor the applicant for a Subclass 457 visa in the occupation of Cook.

8. On 22 September 2015, the Department granted the applicant a Subclass 457 visa on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). The Subclass 457 visa was granted subject to mandatory condition 8107. 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.

   Notification procedures

9. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[1] In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

   [1]     Section 119.

10. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[2]

    [2]     See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32].

11. On 10 May 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that it had visited the nominated address for [Café 1] on three occasions: [in] September 2017,[in] November 2017 and [in] January 2018. On each occasion the business was not operating and on the final visit, the signage had changed to [Café 2]. As a result, the Department informed the applicant in the relevant notice that her Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because she may have breached condition 8107. The notice invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 17 May 2018.

12. Accordingly, the Tribunal finds that the applicant was given a notice of intention to consider cancellation in relation to her Subclass 457 visa. It also finds that this notice set out the grounds of the alleged non-compliance in respect of condition 8107. In addition, the Tribunal finds that the response the applicant provided on 17 Nay 2018 indicated that she understood the nature of the alleged non-compliance.

13. In the circumstances, the Tribunal considers that the Department provided the applicant with sufficient information to adequately understand and, therefore, respond to the notice of intention to consider cancellation, as required under the legislation.

    Does the ground for cancellation exist?

14. A visa may be cancelled under s.116(1)(b) if the Minister 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. Specifically, subclause 8107(3) applies because the Department granted the applicant a subclass 457 visa on the basis that the applicant met the requirements of subclause 457.223(4).

15. Relevantly, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer. As outlined, condition 8107(3)(b) required that the applicant not cease employment for more than 90 consecutive days.

16. In her written submissions and at the hearing, the applicant gave evidence that she was notified by her employer that the store would be closed for renovations in January 2018. After a period of approximately a month, she called to find out what was going on. She explained that she lived nearby to the store and one day when she went by, she saw that a new banner had been put up announcing that it was under new management.

17. At the hearing, the applicant gave evidence that she was looking for new employment [online] when she saw an advertisement for a position at [an address], which was the address of her sponsoring employer. She called the number in the ad and was advised by the person who had placed the advertisement that he had purchased the business and was opening a pizza restaurant.

18. While the applicant’s evidence on the timing of the café’s closure differed from that set out in the delegate’s decision, she conceded that she had not worked at the café since at least January 2018. By the time of the notice from the Department on 10 May 2018, and the date of decision on 19 June 2018, the applicant had not been working for her sponsoring employer for more than 90 consecutive days.

19. As such, 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 visa should be cancelled. The circumstances that gave rise to the cancellation as put forward by the applicant are considered below.

    Consideration of discretion

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

21. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. 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.[3]

    [3]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 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]

22. 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 and the oral evidence from the applicant and her father at the hearing.

23. The policy outlines that the following matters should be taken into account, if relevant, when deciding whether to cancel a visa.

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

24. At the hearing, the applicant gave evidence that she came to Australia to study [Course 1]. The Department’s records show that the applicant first arrived in Australia [in] March 2011 on a Subclass 676 Tourist visa and was granted a Subclass 573 Higher Education visa on 28 June 2011. She has lived here continuously since that time. The applicant didn’t complete the [Course 1] qualification, but did go onto complete Certificates III and IV in Commercial Cookery. The applicant’s mother, father and two sisters also live in Australia.

25. The applicant was issued a Subclass 457 visa on 22 September 2015 to enable her to remain in Australia and work in the occupation of Cook. The most recent standard business sponsor to nominate the applicant was [Business 1], with the nomination approved on 21 February 2017. The applicant’s daughter is listed as a dependant on her visa.

26. Since the applicant ceased working for her sponsoring employer in January 2018, she has been unable to secure a new sponsor. At the hearing, she gave evidence that she currently has no work rights, but was confident that she could secure a new sponsor. The Tribunal provided the applicant with three weeks of additional time to submit evidence that she had found a new employer willing to sponsor her.

27. On 29 March 2019, the applicant wrote to the Tribunal to advise that she had found some interested restaurants, however they wanted to start her on a probation period to test her skills. She outlined that ‘some of them said after testing my skills, they are happy to sponsor me asap.’ While the Tribunal acknowledges that there may be some difficulties associated with securing new employment, other than a general statement, the applicant has submitted no evidence to substantiate that she has another Australian employer willing or able to sponsor her under the skilled migration visa scheme. Accordingly, given this and the fact that the applicant ceased her employment with [Business 1] in January 2018, the Tribunal finds that the purpose for the grant of the Subclass 457 visa to the applicant no longer exists. The Tribunal finds that this factor weighs in favour of exercising the discretion to cancel the Subclass 457 visa.

28. In submissions to the Tribunal dated 6 November 2018, the applicant raised allegations that she was the victim of physical and sexual violence instigated by her ex-husband during their marriage. The submissions outlined that the applicant’s husband returned to India in February 2016 and she fears returning to India on the basis that he will harm her. The applicant made additional written submissions and gave further evidence of the abuse at the Tribunal hearing. She provided the Tribunal with documentation evidencing her divorce proceedings before the Indian courts and an intervention order issued by the Australian courts, along with a written statement and verbal evidence from her father.

29. The Tribunal notes that the applicant lodged an application for a protection visa on 22 February 2018. At the hearing, the applicant confirmed that her application for protection is still before the Department. The Tribunal is concerned by the gravity of the applicant’s submissions, however, is satisfied that these claims will be adequately addressed in her application for a protection visa.[4] For that reason, they have been given no weight in the consideration of the discretion to cancel the applicant’s Subclass 457 visa.

    The extent of compliance with visa conditions and the visa holder’s past and present behaviour towards the Department

    [4] COT15 v Minister for Immigration and Border Protection (No1)[2015] FCAFC 190

30. The Tribunal accepts that the applicant has not previously breached any visa conditions. There is also no evidence to suggest that the applicant has a history of difficulties, or lack of co-operation with the Department.

31. At the hearing, the applicant confirmed that she has had no other compliance issues with the Department since arriving in Australia. This weighs against cancelling the visa.

    The degree of hardship that may be caused to the visa holder and any family members

32. As outlined, the applicant has a young daughter residing with her in Australia. She is listed as a dependant on the applicant’s visa and her visa would therefore be subject to a consequential cancellation under s.140 of the Act. The applicant’s daughter was born on [birth date deleted] and is currently [age] years old.

33. The applicant’s parents and two sisters also reside in Australia. The applicant gave evidence that she is currently living in a rental property in [Suburb 1] and her daughter is attending [Primary School]. Her family live close by and assist to pay the applicant’s rent. The applicant has expressed a desire to remain in Australia to be with her immediate family who support her financially and emotionally.

34. The applicant gave evidence that she has no one to support her in her home town. She has no family to stay with and no money to send her daughter to a good school. The Tribunal accepts that returning to India as a divorced single mother may be difficult for the applicant, especially without the support of her immediate family. Further, it would be difficult for her daughter to start school under a different system in a country that she is not familiar with. This weighs against exercising the discretion to cancel the visa.

35. However, the Tribunal notes that the applicant now holds trade qualifications gained in Australia and speaks multiple languages. Neither she nor her daughter would be permanently barred from applying to visit Australia again from offshore in future. Further, the Tribunal notes that the applicant held a temporary visa with no guarantee that she could remain in Australia on the expiration of the visa. While it may be upsetting for the applicant and her daughter to depart Australia, particularly after living here for more than 8 years with aspirations to remain permanently, these factors weigh in favour of exercising the discretion to cancel the visa.

    The circumstances in which the ground for cancellation arose

36. The policy suggests the Tribunal should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

37. The Tribunal accepts that the applicant was advised by her employer that the café would be closed on a temporary basis for the purpose of undertaking renovations and that the business changed hands without her being notified, which led to the initial breach of her visa condition. This weighs against exercising the discretion to cancel the visa.

38. Nevertheless, the applicant has not worked for her sponsoring employer since January 2018. The applicant had approximately 6 months to secure a new sponsoring employer before her visa was cancelled and failed to do so. The Tribunal appreciates that the applicant has experienced a difficult time as a result of domestic violence, an ongoing divorce and has relied on her family for support. However, the applicant’s ex-husband has not been in Australia for more than three years and she has had more than 15 months since her employment ended with her sponsoring employer to put forward a new potential sponsor. No medical evidence was put forward to support an incapacitation for work due to trauma.

39. The Tribunal empathises with the applicant’s situation, however it is mindful that the purpose of the Subclass 457 visa was to fill a genuine skills shortage in the Australian labour market. In the circumstances, the applicant’s non-compliance with condition 8107 of her visa is substantial. This weighs in favour of exercising the discretion to cancel the visa.

    Whether there are mandatory legal consequences to a cancellation decision

40. The Tribunal acknowledges that upon the cancellation of her visa, the applicant would ordinarily become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s198 if she does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of her visa. In the current matter however, the applicant would be eligible to remain in Australia within the community until the conclusion of her protection application.

41. These are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new visa from overseas.

    Australia's international obligations

42. 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).  

1. As outlined above, the applicant has put forward a claim that she fears return to India on the basis that she would face harm from her ex-husband. An assessment against Australia’s non-refoulement obligations will be undertaken during the course of her application for a protection visa. For this reason, an assessment of Australia’s protection obligations is not necessary in the context of this decision.[5]

   [5] Ibid, 4.

2. There is little in the evidence before the Tribunal that would suggest that Australia would be in breach of its other international obligations pursuant to any of the above international agreements. The Tribunal notes that the applicant would not be separated from her 11 year old daughter as a result of the cancellation and she did not make any claims regarding her rights under the ICCPR. 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 Subclass 457 visa.

   Any other relevant matters

3. No further issues were raised by the applicant in relation to the exercise of the Tribunal’s discretion to cancel her Subclass 457 visa.

4. Based on the evidence before it and taking into account all the relevant circumstances, on balance, the Tribunal finds that the reasons for not exercising the discretion to cancel the applicant’s Subclass 457 visa do not outweigh the reasons to cancel the visa.

5. Nevertheless, the Tribunal expresses the hope that the Department gives due consideration to the applicant’s claims for protection.

   DECISION

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

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

   Sheridan Lee
   Member