Amandeep Kaur (Migration)

[2019] AATA 4179

Amandeep Kaur (Migration) [2019] AATA 4179 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amandeep Kaur
Mr Jagjit Singh Wahra
Master Abhinoor Singh Wahra

CASE NUMBER:  1902292

HOME AFFAIRS REFERENCE(S):           BCC2018/4403680

MEMBER:Antonio Dronjic

DATE:29 August 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 other applicants.

Statement made on 29 August 2019 at 2:22pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – unable to secure new nomination – purpose of visa not fulfilled – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

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 31 January 2019 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 first named applicant (the applicant) breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 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 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 to the cancellation of the applicant’s visa

4. The decision record of 31 January 2019 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 20 February 2015, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain valid until 20 February 2019;

   ·The standard business sponsor who nominated the applicant to work as a hairdresser was CH Luxe Pty Ltd AYF the CH Luxe Trust (the sponsor);

   ·On 18 April 2018, the owner of the sponsoring business, informed the Department that the sponsoring business ceased trading on 18 April 2018 and that the applicant ceased her employment on that day;

   ·A notice of intention to consider cancellation (NOICC) was issued to the applicant on 2 January 2019;

   ·The applicant responded to the NOICC on 17 January 2019; and

   ·On 31 January 2019, the delegate proceeded to cancel the applicant’s visa.

5. The applicants applied to the Tribunal on 1 February 2019 for review of the visa cancellation and with their application submitted a copy of the primary decision record.

6. On 11 June 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 29 August 2019.

7. The applicant appeared before the Tribunal on 29 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review by their registered migration agent.

8. The Tribunal began the hearing by informing the applicant that her visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that she had not complied with the conditions of her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained that the applicant’s husband’s and son’s visas were automatically cancelled by operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of her visa.

9. The Tribunal noted that, because her visa would have, but for the cancellation, ceased on 20 February 2019, the Tribunal has no power to reinstate the visa even if the cancellation is to be set aside. The Tribunal further explained that as of 18 March 2018 it is no longer possible to apply for a Subclass 457 visa as it has been abolished and replaced with a new temporary working visa. The applicant confirmed that she understood the explanation.

10. The Tribunal explained that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

11. The applicant is 33 years of age and a married national of India. Her husband and son, who is eight years of age and attending the second grade of primary school, are currently in Australia. In India, the applicant has completed a Bachelor of Arts and Masters of Arts degrees. She married in 2005 and resided at her husband’s parent’s home in India. Her parents and two siblings live in India and one of her cousins is residing in Australia. In addition to completing the equivalent of year 12, the applicant’s husband completed a laboratory technician diploma and worked at his father’s paint shop.

12. The applicant stated that at her home, she communicates with her husband in the Punjabi language. Her son understands Punjabi but ‘cannot speak properly’. The applicant and her husband first arrived in Australia in June 2009 holding a Student visa. By late 2013, the applicant had completed several courses related to hairdressing and management. Her husband was employed as a cleaner, furniture removalist and courier. From 2015 until present time he works as a full time driver.

13. The applicant was granted a Subclass 457 visa on 20 February 2015, based on the sponsorship and nomination made by the same hairdressing salon operated by CH Luxe Pty Ltd AYF the CH Luxe Trust. She confirmed in her evidence that she received a copy of the visa grant letter from the Department which contained an explanation of the conditions imposed on her visa and her understanding of these conditions.

14. She commenced her full-time employment as a hairdresser at this salon on 16 March 2015 and ceased employment on 18 April 2018. She stated that the owner of the hairdressing salon, Mr Sewak Dev Singh Gill, informed her that he is looking for the new location for his business and that she must wait. A month later, she contacted Mr Gill and was told that he is still looking for the new location for his salon.

15. In June 2018, Mr Gill told the applicant that he informed the Department that she no longer works at his business. In November 2018, she received a letter from the Department informing her that the business was sold. She than attempted to find new employer but was not successful. In January 2019, she was offered a position at Femina hair and beauty salon. The owners of this business have undertaken to sponsor and nominate her for the position of a hairdresser. The applicant stated that she never commenced working at this salon as her visa was cancelled on 31 January 2019. The business owners never proceeded with lodgment of the sponsorship application with the Department.

16. The applicant gave evidence that she has not worked as a hairdresser since 18 April 2018, and stated that, as of the day of this hearing, she is not employed in her occupation by an Australian business that is an approved sponsor and that successfully nominated her to work at that business.

17. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that she breached the condition 8107 that was imposed on her Subclass 457 visa as the period during which she ceased employment exceeded 90 consecutive days and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

18. The Tribunal invited the applicant to state if there any matters she wants the Tribunal to take into account in considering whether the visa should be cancelled.

19. The applicant asked the Tribunal to give her another three to four months to find a new employment. She stated that she is willing to move to any other Australian state and that she travelled to Tasmania to look for a job. She further stated that her son was born in Australia and it will be difficult for him to live in India as he does not speak good Punjabi language. She stated that her family will suffer hardship if the visa remains cancelled as they have been living in Australia for ten years and it will be difficult for the family to adjust to life in India.

20. 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

21. 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.

    Does the ground for cancellation exist?

22. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. Condition 8107(3)(b) requires that if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant’s visa, which was granted on 20 February 2015 and which, but for its cancellation, was valid to 20 February 2019.

23. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment with the sponsoring business on 18 April 2018. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

24. For these reasons, the Tribunal finds 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 power to cancel the visa should be exercised.

    Consideration of discretion

25. 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’.

26. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] 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.[2]

    [1]    See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; 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].

27. 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 evidence it received from the applicant.

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

28. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for CH Luxe Pty Ltd AYF the CH Luxe Trust as a hairdresser on a temporary basis. The applicant was unfortunate to lose her job in April 2018. She decided to remain in Australia and try to find a new employer but was not successful.

29. Based on the evidence before it, the Tribunal is satisfied that, as of the day of its decision, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.

30. The Tribunal further finds that the applicant’s Subclass 457 visa would, but for the cancellation, have ceased on 20 February 2019 in any case and that it is no longer possible to reinstate the applicant’s Subclass 457 visa.

31. As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for her sponsor in April 2018. I give significant weight to this consideration.

    The reason for and extent of the breach

32. The ground for cancellation arose when the applicant ceased working with her sponsoring employer in April 2018. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of her visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor and which successfully nominated the applicant to work at the business.

33. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 16 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

34. The applicant ceased her employment at the sponsoring business in April 2018. The Department did not proceed with the visa cancellation until 31 January 2019. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with another business sponsor.

35. Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond her control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

    Past and present conduct of the visa holder towards the Department

36. There is no evidence before the Tribunal that the applicant previously breached visa conditions or that she was not co-operative with the Department.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

37. The applicant claims that the visa cancellation would cause hardship to herself and her family. It was submitted that the applicant’s son, who was born in Australia, is eight years of age and is attending primary school in Australia. The applicant claims that it will be difficult for her son live in India as he does not speak good Punjabi language. The applicant further stated that her family will suffer hardship if the visa remains cancelled as they have been living in Australia for ten years and it will be difficult for the family to adjust to life in India.

38. The Tribunal accepts that the applicant and her husband have been living and working in Australia since June 2009 and that they have established ties to the Australian community. The Tribunal accepts that the applicant and her family will suffer some hardship if they are required to depart Australia.

39. The Tribunal accepts that the applicant’s son is attending school in Australia and has been living in this country since his birth. The Tribunal accepts that the applicant’s son may have some difficulties adjusting to a different education system in India. However, the Tribunal is not satisfied that the visa cancellation would cause significant hardship if the child’s studies in Australia were disrupted. The Tribunal finds that the purpose of a Subclass 457 visa is not to enable family members to study in Australia.

40. The Tribunal has taken into consideration the applicant’s evidence that in India, the applicant completed Bachelor of Arts and Masters of Arts degrees and that her parents and two siblings reside in India. Both the applicant and her husband speak the Punjabi language and according to the applicant’s evidence, their son understands Punjabi although he ‘cannot speak properly’. Considering her family composition, formal education completed in India and Australia and her work experience gained in Australia, the Tribunal is satisfied that the applicant and her family will be able to re-establish themselves in India.

41. Balanced against any potential hardship to the applicant and her family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

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

42. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow her to remain in Australia. If that is the case she has the opportunity to depart Australia. Whilst her failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

1. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as she breached the 8107 condition imposed on her visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once she finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

2. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

   Whether there would be consequential cancellations under s.140

3. Whilst the applicant’s husband’s and son’s visas were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from her husband and son.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

4. 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).

5. The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration. However, this consideration does not preclude visa cancellation. Taking into account the rights and duties of his or her parents, the Tribunal is satisfied that it is in the best interest of the applicant’s son to remain with his family.

6. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.

   The impact on any victims of family violence

7. There is no evidence before the Tribunal regarding this matter.

   Other relevant matters

8. The applicant asked the Tribunal to give her three to four months to find new employment. She stated that she is willing to move to any other Australian state and that she travelled to Tasmania to look for a job. The Tribunal explained to the applicant that her visa would have, but for the cancellation, ceased on 20 February 2019 in any case and that the Tribunal has no power to reinstate the visa. In addition, the Tribunal finds that the purpose of granting a Subclass 457 visa is not to enable the applicant to look for employment opportunities in Australia.

9. Having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

   DECISION

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

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

    Antonio Dronjic
    Member