2013528 (Migration)

[2021] AATA 2388

2013528 (Migration) [2021] AATA 2388 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013528

MEMBER:K. Chapman

DATE:16 June 2021

PLACE OF DECISION:  Brisbane

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 June 2021 at 3:09pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship cancelled and sponsor barred for one year – deficiencies rectified – discretion to cancel visa – visa, study, work and family history – continuing employment with sponsor and no non-compliance by applicant – potential hardship if cancellation affirmed – child’s medical condition and care – members of family unit – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 140M, 348

Migration Regulations 1994 (Cth), r 2.43

CASES

Botha v Minister for Immigration and Border Protection [2017] FCA 362

Rani v MIMA (1997) 80 FCR 379

Tien v MIMA (1998) 89 FCR 80

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 31 August 2020 made by a delegate of the Minister for Home Affairs to cancel the first named 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)(g) of the Act on the basis that the first named applicant’s visa sponsor, [Company], was cancelled and barred for one year pursuant to 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.

   BACKGROUND

4. The first named applicant (hereafter ‘the applicant’) was granted her Subclass 457 visa on 15 March 2017. The standard business sponsor who nominated her in the most recently approved nomination was [Company] T/A [Trading name] (‘the sponsor’). The second, third, fourth, fifth and sixth named applicants are, respectively, the spouse and minor children of the applicant. The applicants are nationals of India.

5. On 16 June 2020, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of her visa on the basis that her sponsor was cancelled and barred pursuant to s.140M of the Act. The Tribunal notes that a prior NOICC was issued upon different grounds in 2019, then not proceeded with by the delegate.

6. On 30 June 2020, the applicant responded in writing to the most recent relevant NOICC indicating, in summary, that relevant correspondence was not issued by the Department, she is not responsible for the sponsor’s ASIC registration lapsing, she has abided by all visa conditions, and querying why a new NOICC was issued following the initial NOICC in 2019. On 31 August 2020, the delegate cancelled the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

7. On 2 September 2020, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of the delegate’s decision with her application. The applicant submitted various pieces of material prior to the scheduled review hearing. The bulk of material was received on 3 June 2021. It included, but was not limited to, written submissions, medical records pertaining to the applicant and her second child (the fourth named applicant), a Statutory Declaration of [the second applicant] dated 10 June 2019 and an Accountant letter dated 22 May 2019 pertaining to the sponsor. All submitted material has been duly considered by the Tribunal.

8. The applicant appeared by video before the Tribunal on 11 June 2021 to give evidence and present arguments (having been granted a postponement of an earlier scheduled review hearing on medical grounds). The applicant confirmed that she was comfortable participating in the hearing by video. She confirmed no other person was providing evidence at the review hearing. The applicant was represented by her registered migration agent (‘the representative’) who also attended by video.

9. 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

10. Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. Relevantly, to the present matter, these include the ground set out in s.116(1)(g) of the Act, which provides that a visa may be cancelled if a prescribed ground applies to the visa holder. 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 as the sponsor has been cancelled or barred pursuant to section 140M of the Act. 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 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 matter, the ground in r.2.43 (1)(l)(iv) is relevant as the sponsor has been cancelled or barred pursuant to section 140M of the Act. The Tribunal notes that initially contentions were advanced on behalf of the applicant that the sponsor, [Company], did not receive relevant correspondence from the Department regarding the cancellation and barring decision pertaining to it. Furthermore, it was contended that the cancellation and bar regarding the sponsor related only to the sponsor’s failure to renew its ABN on time.

12. During the review hearing, the Tribunal canvassed with the applicant and her representative the status of the cancellation and bar decision pertaining to the sponsor. Much focus was placed by the representative, at hearing and in written submissions, on contentions regarding the Department failing to notify the sponsor of the decision made pursuant to s.140M. Ultimately, the applicant conceded that she was in possession of the relevant adverse decision record regarding the sponsor and that the sponsor did in fact have its standard business sponsorship cancelled.

13. The Tribunal notes that on 23 April 2019, as reflected in the relevant decision record contained in the applicant’s Departmental file, the sponsor received a cancellation of its standard business sponsorship, and a bar for 12 months from making applications for approval as a standard business sponsor and temporary activities sponsor, pursuant to s.140M of the Act. It is apparent from that file that a copy of this s.140M decision was provided to the applicant by the Department. This decision record reveals that the sponsor was not subject to an administrative sanction merely on the basis of its ABN not being renewed rather, in addition, the sponsor was found to have been deregistered by ASIC, to have failed to update the Department of the cessation of a prior visa holder’s employment and to have failed to provide relevant particulars regarding the employment of the applicant.

14. In the view of the Tribunal, it is indisputable that the sponsor was cancelled and barred in accordance with section 140M of the Act on 23 April 2019. Accordingly, 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. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

17. The applicant arrived in Australia in 2009 as the holder of a Student visa with her husband and eldest child. She gave birth to her second child in Australia in [Year] (the fourth named applicant). The applicant continued to study until 2014, thereafter obtaining a Subclass 457 visa in connection with her employment by the sponsor as a Restaurant Manager. The applicant gave birth to her third child in [Year] and her fourth in [Year], both in Australia (the fifth and sixth named applicants). She understandably took leave from the workplace for the birth of her children. According to the applicant, she has been continuously employed by the sponsor since 2014 until the present time, noting some periods of leave.

18. The applicant submitted that the sponsor relocated the [Restaurant] from its initial location at [Suburb 1] in December 2018, due to a dispute with the landlord concerning lease renewal terms and also extensive renovations being conducted in the vicinity of the business premises. The Restaurant re-opened in mid 2019, following the location of a suitable premises at its present location in [Suburb 2]. The Statutory Declaration of [the second applicant] dated 10 June 2019 confirms these particulars.

19. The fourth named applicant, the now [Age] year old second child of the applicant, was diagnosed with [Medical condition] at a young age. She was born in Australia and has received regular medical intervention, including as an inpatient at the Queensland Children’s Hospital. Submitted medical evidence confirms that the applicant took leave, as the primary caregiver, in early 2019 to care for the fourth named applicant, who requires regular [treatment]. The applicant then fell pregnant with her fourth child, who was born in [year] (the sixth named applicant). The Tribunal records that it accepts the veracity of the medical evidence submitted regarding the fourth named applicant’s medical condition and multiple pregnancies of the applicant.

20. At the review hearing, the applicant outlined that she remains employed as the Restaurant Manager of the [restaurant] at [Suburb 2]. She works from the afternoon into the evening, and on weekends finishes later. Her husband, the second named applicant, is [an Occupation 2] performing [a job task] for [a work sector]. He works from the early morning until the afternoon. The applicant explained that she and her husband coordinate their work, so as to share the care of their four children. The Tribunal had the benefit of observing the applicant provide her evidence at the review hearing and is satisfied that she truthfully outlined her circumstances. For completeness, the Tribunal accepts that the applicant remains employed by the sponsor as the Restaurant Manager at the [restaurant].

21. The Tribunal considers that the purpose of the applicant’s stay in Australia, holding a Subclass 457 visa, is to work in the approved nominated occupation of Café or Restaurant Manager (ANZSCO code 1411111). Whilst the applicant’s visa was cancelled on 31 August 2020, the Tribunal accepts that she remains employed by the original sponsor. Following careful consideration, the Tribunal is satisfied that the purpose of the applicant’s stay in Australia remains extant. Accordingly, the Tribunal finds that this factor weighs strongly against cancelling the applicant’s visa.

22. There is no persuasive evidence before the Tribunal to indicate the applicant has failed to comply with any visa conditions. Of note, the Tribunal accepts that the applicant has taken periods of legitimate leave for reasons outlined and she has remained employed by the sponsor at all relevant times. On balance, the Tribunal finds that the extent of the applicant’s compliance with visa conditions weighs moderately against cancelling her visa.

23. The Tribunal has also had regard to the circumstances of the visa cancellation. The ground for cancellation arose when the applicant’s sponsor, [Company], was cancelled and barred pursuant to s.140M of the Act, in connection with failure to maintain relevant ASIC registration and for not reporting particulars pertaining to two nominated employees. The applicant gave evidence that she is not involved in the ownership of the sponsor, nor is she related by family to any person so involved. The applicant staunchly maintained that she was not responsible for any of the omissions on the part of the sponsor related to the imposition of the s.140M sanction. Further, it was submitted that all deficiencies of the sponsor have been rectified. The Tribunal accepts the applicant’s evidence on these matters. Therefore, the Tribunal finds that the circumstances in which the ground for visa cancellation arose weigh moderately against cancelling the applicant’s visa, given her lack of culpability in the omissions of the sponsor.

24. The Tribunal has also considered the hardship that may be experienced if the applicant’s visa is cancelled and whether there is any compelling need for her to remain in Australia. The Tribunal notes the applicant submitted evidence that she and her husband will face economic hardship if the Subclass 457 visa is cancelled and they are returned to India. Further, she outlined that her children would face hardship in adjusting to schooling in India, noting that three of her four children were born in Australia. These are matters that weigh moderately against cancellation of the applicant’s visa, when considered in combination with the medical condition suffered by the fourth named applicant.

25. Of note, the applicant submitted medical evidence indicating that her [Age] year old child, the fourth named applicant, would suffer great hardship due to the disruption of her ongoing hospital treatment for [Medical condition] in Brisbane and furthermore would be placed at a higher risk of adverse outcomes if returned to India where the COVID-19 virus is more prevalent. The Tribunal accepts that significant hardship would be suffered by the applicant and her family members, if the Subclass 457 visa is cancelled, on account of this child’s medical condition. Additionally, the Tribunal is satisfied that the applicant has a compelling need to remain in Australia in order to maintain continuity of care for her Australian born child suffering [medical condition]. These are matters that weigh strongly against cancelling the applicant’s visa in the view of the Tribunal.

26. The Tribunal notes that the visas of the applicant’s immediate family members will be consequentially cancelled pursuant to s.140 of the Act if her visa is cancelled. However, the visas of the secondary visa holders were granted on the basis of them being members of the family unit of the applicant and it is the intended consequence of the legislation that members of the same family have the same visa status. Following careful consideration, the Tribunal finds that the consequential cancellation of the visas held by the secondary visa holders weighs neither in favour of, nor against, the cancellation of the applicant’s visa in the aforementioned circumstances.

27. Regarding the applicant’s past and present conduct towards the Department, there is no evidence before the Tribunal to suggest that she has not been cooperative in her dealings with them. The Tribunal finds that this circumstance weighs moderately against cancelling her visa. With respect to the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant (and her family) does not hold a valid visa she would be an unlawful non-citizen and subject to immigration detention, it would be difficult for her to make visa applications in Australia and she would be liable to removal from Australia when safe to do so. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s visa given they are the intended consequences of legislation.

28. In relation to the consideration of Australia’s international obligations, the Tribunal has carefully considered Australia’s international obligations arising from the Convention on the Rights of the Child (CROC) with respect to the present review. Accordingly, the Tribunal treats the interests of the third, fourth, fifth and sixth named applicants as a Primary consideration in its decision making process. The Tribunal accepts that the adjustment process for the children in relocating to India and resuming schooling in that country weighs moderately against cancelling the applicant’s visa. Additionally, the Tribunal is satisfied that the best interests of the fourth named applicant are to remain in Australia and continue to receive continuity of medical care for her [medical condition]. This is a matter that weighs strongly against cancellation of the applicant’s visa.

29. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there is any other circumstance weighing in favour of cancelling her visa.

    CONCLUSION

30. The Tribunal has carefully reflected upon the factors relevant to the exercise of the discretion to cancel the visa. On balance, having regard to the particular facts of the present matter, the Tribunal finds that the factors against cancelling the applicant’s visa are significant. In particular, the requirement for the fourth named applicant to maintain continuity of medical care in Australia weighs strongly against visa cancellation.

31. Considering the circumstances as a whole, the Tribunal concludes that discretion should not be exercised to cancel the applicant’s visa.

    DECISION

32. 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.

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

    K. Chapman
    Member