ABHISHEK (Migration)

[2018] AATA 5274

ABHISHEK (Migration) [2018] AATA 5274 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr ABHISHEK ABHISHEK
Mrs Chhavi SOOD

CASE NUMBER:  1825434

HOME AFFAIRS REFERENCE(S):           BCC2018/726978

MEMBER:Antoinette Younes

DATE:29 November 2018

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 second named applicant.

Statement made on 29 November 2018 at 5:02pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – cancellation of the approval of sponsor as a standard business sponsor – consideration of discretion – grounds for cancellation arose for reasons outside of the applicant’s control – nomination application lodged by prospective sponsor – degree of hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 140M, 348
Migration Regulations 1994 (Cth), r 2.43

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 August 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)(g) on the basis that the approval of Milestone PTY LTD as the sponsor as a standard business sponsor was cancelled and the sponsor was barred. 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 applicants appeared before the Tribunal on 22 November 2018 to give evidence and present arguments. The applicant’s current employer gave evidence.

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 is satisfied that 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).

9. In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. Specifically, the Tribunal noted the following:

   ·The standard business sponsor that nominated the applicant in the most recently approved nomination for the visa is Milestone PTY LTD (the sponsor) and the nomination was approved on 17 September 2016.

   ·On 12 February 2018, a delegate of the Minister decided to cancel the approval of the sponsor as a standard business sponsor pursuant to s.140M(1) of the Act, and bar the sponsor for five years from making future applications for approval as a standard business sponsor, pursuant to s.140(2).

10. The applicant agreed with the above information.

11. Regulation 2.43 prescribes grounds for cancelling a visa. Regulation 2.43(1)(1)(iv) enlivens the visa cancellation in the case of a sponsor’s bar or cancellation pursuant to s.140M.

12. In light of the cancellation of the approval of the sponsor as a standard business sponsor pursuant to s.140M(1) of the Act, and bar for five years from making future applications for approval as a standard business sponsor, pursuant to s.140(2), the Tribunal finds that the ground for cancellation in s.116(1)(g) exists.

13. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. 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’.

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

15. The applicant was granted a subclass 457 to enable him to work in Australia for an approved sponsor in a skilled occupation for which he was specifically nominated to work and which could not be filled from within the Australian workforce. Consistent with that purpose, the applicant worked for the sponsor until at least 12 February 2018 when the sponsor’s standard business sponsor was cancelled and a bar was imposed. The applicant ceased employment with that sponsor as a consequence of those events. That event was beyond the applicant’s control.  Similarly, the applicant has suffered heart conditions requiring surgery and these were beyond his control. He advised the Tribunal that his health is progressing well and he is able to work.

16. The applicant gave evidence and provided documents in support that he is currently working for a new employer, Luck’s Hair and Beauty Salon.  The evidence before the Tribunal indicates that in September 2018, the applicant found the new employer and commenced employment.  Luck’s Hair and Beauty Salon has lodged a new standard business sponsor application and a nomination application for the business nominating the applicant in the position of hairdresser.  The new employer gave evidence confirming that the position is genuine and that he considered the applicant a valuable contribution, particularly as the business is in a geographic area where the applicant’s language skills are in demand.  The Tribunal appreciates that the SBS and nomination applications have not yet been finalised but that is a separate question to the current consideration which is about the applicant’s purpose.

17. In submissions, the representative indicated that the applicant is an experienced hairdresser who is financially responsible for his family. He was sponsored by a company that was no longer able to trade as a result of commercial pressures. The applicant suffered a heart attack due to the stress associated with the cancellation process. The family has been occupied with the arrival of his first child, born on 27 May 2018. The applicant has completed a diploma of business and a Certificate III in hairdressing and he has over eight years of relevant work experience.  Milestone Pty Ltd purchased the applicant’s business around October 2014 and at that time the business was a well-established one and it retained the applicant as a senior hairdresser. The applicant is determined to use his skills’ set to benefit the Australian community and he will do “whatever it takes to ensure ongoing compliance with his visa conditions” by transferring his visa to his new sponsor.

18. The Tribunal is satisfied that the purpose of the applicant’s travel and stay in Australia is to work and he has done so consistent with that purpose.  He stopped working when the sponsor’s standard business sponsor was cancelled and a bar was imposed.  He is now employed.  The Tribunal gives this aspect weight in favour of the applicant.

    ·the extent of compliance with visa conditions

19. There is no evidence before the Tribunal that the applicant has not complied with any other visa condition and the Tribunal gives this aspect favourable weight.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

20. The Tribunal is satisfied that the cancellation of the visa would mean that the applicant and his family would experience a significant degree of hardship.  The applicant is recovering from major heart surgery and he is trying to re-establish his working life, amongst other things, to comply with visa conditions.  Their daughter was born on 27 May 2018.  It is reasonable for the Tribunal to assume that his wife and child would be negatively impacted by the cancellation of his visa. The impact is financial and emotional.

21. If the applicant chooses not to leave Australia voluntarily, he could be detained and deported. The applicant would also have difficulties obtaining any further Australian visas. The Tribunal is of the view that although these are consequences of the legislation, in his circumstances particularly the fact that the cancellation was due to reasons beyond his control, they do mean that the visa should not be cancelled.

22. On balance, the Tribunal is satisfied that there is degree of hardship in the case of cancellation of the applicant’s visa and that the degree of hardship is such that it means that the visa should not be cancelled.

23. The Tribunal has given this aspect favourable weight.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as 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

24. On 12 February 2018, a delegate cancelled the approval of the sponsor as a standard business sponsor pursuant to s.140M(1) of the Act, and barred the sponsor for five years from making future applications for approval as a standard business sponsor, pursuant to s.140(2).  Regulation 2.43(1)(1)(iv) enlivens the visa cancellation in the case of a sponsor’s bar or cancellation pursuant to s.140M.

25. The Tribunal accepts that the grounds for cancellation arose for reasons outside of the control of the applicant, namely, the cancellation of the standard business sponsorship of his former employer.  His illness was also beyond his control.  The Tribunal has given this aspect significant favourable weight.

    ·past and present behaviour of the visa holder towards the department

26. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this favourable weight.

    ·whether there would be consequential cancellations under s.140

27. The applicant’s spouse (and now daughter) was granted the visa on the basis of being a member of the applicant’s family unit.  Her visa is cancelled pursuant to s.140(1) as a consequence of the cancellation of the applicant’s visa.

28. The Tribunal has given this aspect favourable weight.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

29. As mentioned earlier, if the applicant does not to leave Australia voluntarily, he could be detained and deported. The applicant would also have difficulties obtaining any further Australian visas. The Tribunal is of the view that although these are consequences of the legislation, in his circumstances particularly the fact that the cancellation was due to reasons beyond his control, they do mean that the visa should not be cancelled.

30. The Tribunal has given this aspect favourable weight.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

31. The applicant has a daughter who is about 6 months old.  As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the applicant’s daughter.  By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the chid.

32. The CROC applies to children under 18 years of age.  The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

33. Article 3 of the CROC states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

    States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

34. The applicant’s daughter is about six months old. She has not commenced her schooling.  When and if granted subclass 457, if the applicant’s visa is cancelled, the daughter’s visa would be pursuant to s.140(1). The Tribunal does not consider that consequence to amount to a breach of the CROC.

35. On the evidence before it, the Tribunal is satisfied that in case of the cancellation of the applicant’s visa, Australia would not be in breach of its international obligations and the Tribunal gives this aspect weight not favourable to the applicant.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

36. The subclass 457 is not a permanent visa. There is no assurance or guarantee that the holder of the subclass 457 would eventually be granted a permanent visa. The Tribunal gives weight not favourable to the applicant.

    ·any other relevant matters

37. There are no other matters relevant to the Tribunal’s consideration.

38. The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. There are aspects that are not favourable to the applicant but there are many other aspects that weigh heavily in the applicant’s favour.

39. The Tribunal is satisfied that on balance the correct and preferable decision is that the applicant’s subclass 457 visa should not be cancelled.

    DECISION

40. 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.

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

    Antoinette Younes
    Senior Member