Bhalla (Migration)

[2019] AATA 2471

Bhalla (Migration) [2019] AATA 2471 (28 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sonu Bhalla
Mr Manminder Singh Sandhu
Miss Reet Kanwal
Mr Kabir Sandhu

CASE NUMBER:  1836339

HOME AFFAIRS REFERENCE(S):           BCC2018/41088609

MEMBER:Mary Sheargold

DATE:28 June 2019

PLACE OF DECISION:  Melbourne

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 28 June 2019 at 1:51pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – credible witness – subjective belief of employment status – undocumented unpaid leave – consideration of discretion – 2  employers willing to sponsor the applicant – purpose of visa fulfilled – past compliance record – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 119, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1459
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Rani & Ors v MIMA (1997) 80 FCR 379
Sakhno v MIAC [2007] FMCA 1492
Tien & Ors v MIMA (1998) 89 FCR 80
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Zhao v MIMIA [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 December 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 applicant had not complied with the conditions attached to her Subclass 457 visa, specifically that she had breached condition 8107(3)(b) of Schedule 8 to the Migration Regulations 1994 (the Regulations) because she ceased employment with her sponsor, Evergreen Environmental Solutions Pty Ltd in September 2017. 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.

4. The applicants appeared before the Tribunal on 24 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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)(b) on the basis that the applicant has not complied with the conditions on her Subclass 457 visa. 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

8. On 28 October 2014, the Department of Home Affairs approved a nomination by Evergreen Environmental Solutions Pty Ltd atf Seth and Kapoor Family Trust to sponsor the applicant for a Subclass 457 visa in the occupation of Pastrycook (ANZSCO 351112) at The Cheesecake Shop in Mornington.  The applicant was granted Subclass 457 visa on 29 January 2015 on the basis that she was sponsored by a standard business sponsor under cl.457.223(4) of Schedule 2 to the Regulations.  The Subclass 457 visa was granted subject to mandatory condition 8107.  Visa condition 8107(3)(b) requires that if the applicant ceases employment, the period 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 for cancellation do not exist, or that if they do, there are reasons that the visa should not be cancelled: s.119 of the Act.  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.

10. The onus of establishing the facts that 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(s) for cancellation does not exist, or if it does, that there is a reason that the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified: see Zhao v MIMIA [2000] FCA 1235 at [25] and [32].

11. On 9 November 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (the Notice) noting that Departmental officers had attended The Cheesecake Shop in Mornington on 24 July 2018 and ascertained that the applicant’s employment at that location had ceased around September 2017. As a result, the Department informed the applicant in the Notice that her Subclass 457 visa might be cancelled in accordance with s.116(1)(b) of the Act because she may have breached visa condition 8107. The Notice invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 18 November 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.  The Tribunal also finds that the Notice sets out the grounds of the alleged non-compliance in respect of condition 8107 as required under the legislation.

    Does the ground for cancellation exist?

13. 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. This condition requires that the visa holder does not cease employment for more than 90 consecutive days whilst holding the visa.

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

15. At the hearing, the applicant told the Tribunal that:

    ·she worked at The Cheesecake Shop in Mornington (the Mornington store) until September 2017;

    ·while she worked at the Mornington store, she was required to work a minimum of 11 hours per day, 5 days per week, and that she was solely responsible for the day to day running of the business including performing all baking duties, all cake decorating duties, taking telephone calls, accepting and fulfilling orders and general management of the store;

    ·the owners of Evergreen Environmental Solutions Pty Ltd (the sponsor) had advised her at that time that they were closing the shop for renovations, and this was consistent with her observations of The Cheesecake Shop’s head office staff attending the Mornington store and discussing renovation requirements with the sponsor;

    ·the sponsor had told her the Mornington store would be closed for 2 weeks and requested she perform her duties at the sponsor’s Cranbourne or Berwick franchises of The Cheesecake Shop as directed by the sponsor;

    ·she worked between the Cranbourne and Berwick stores from September 2017 to March 2018, during which time she was paid cash in hand (which she claims to have questioned with the sponsor, but they reassured her as to the reason for the change in approach from EFT payments, which she accepted);

    ·in March 2018, the sponsor advised the applicant to undertake a significant period of unpaid leave while they continued to build new business opportunities where they could permanently re-deploy her;

    ·from 19 March 2018 to 19 May 2018, she travelled with her family to India;

    ·on returning to Australia on 19 May 2018, she began her attempts to contact the sponsor to discuss when she was returning to work, but that during those conversations the sponsor became aggressive and hostile, and told her if she resigned from her employment, the sponsor would sue her;

    ·after a telephone call from Departmental officers on 24 July 2018, she had concluded there may be an issue with ongoing employment with the sponsor and so she began to look for a new role with a new employer;

    ·it was difficult to obtain new employment due to employers needing to complete labour market testing, and that once she had found a suitable role, her visa was cancelled before the new employer had completed the labour market testing;

    ·she received a payment of $3,824 from the sponsor on 5 December 2018 as an annual leave payment; and

    ·she did not work from 19 March 2018 until February 2019, when she commenced a full time role as a Pastrycook at The Cheesecake Shop in Caulfield South.

16. In the primary decision record, the delegate noted that the applicant claimed she was dependent on her sponsor to be employed, and that she relied on her sponsor’s promise of re-employment as he had lodged an application to sponsor her under the Employer Nomination Scheme (class EN Subclass 186) visa in February 2017.  The delegate noted the applicant’s submissions that she had been contacting her sponsor for updates and that she was assured that her employment was secure and that he would employ her again soon, and noted her submission that she has not worked for any other employer other than her sponsor, that she never abandoned her employment, and that she always wanted to continue working for her sponsor.

17. The delegate also noted that the applicant had recently been offered employment as a Pastrycook and that the new employer was keen to sponsor her on a Subclass 482 visa, and notes the applicant’s statement that her actions relating to regaining employment demonstrate she does not intend to breach her visa conditions.

18. The applicant’s evidence at the hearing is consistent with the evidence set out in the primary decision record.  The Tribunal notes that the applicant remains adamant that she did not cease employment with her sponsor because she was never given a cessation letter or termination letter, and that it was her belief that such a document would be required in order for her to seek employment with a new sponsor.  Further, she stated that she had been too scared to resign from her position with the sponsor due to the sponsor’s threatened litigation against her.  At the hearing, the applicant’s representative stated that the applicant would come to him in tears due to her fear of litigation from the sponsor, and that she genuinely believed he was entitled to pursue her if she had resigned from the sponsor’s company.

19. The Tribunal asked the applicant if she could provide documentary evidence confirming the period of unpaid leave that she had agreed to with the sponsor.  The applicant told the Tribunal that she had not sought documents in writing because she blindly trusted the sponsor because they treated her like family.  She noted that she was intimidated by the sponsor and felt she had no choice but to trust him.  Further, she submitted that the sponsor’s threats to sue her if she resigned indicated that she remained employed by the sponsor.

20. The Tribunal notes that the applicant was open, forthright and frank in her evidence at the hearing, and finds her to be a genuine and credible witness.  The Tribunal accepts that the applicant believed she continued to be employed by the sponsor when she commenced an extended but not documented period of unpaid leave in March 2018.  However, the Tribunal has considered the lack of evidence regarding the agreed unpaid leave coupled with the behaviour of the sponsor as described by the applicant from March 2018 until the time her Subclass 457 visa was cancelled, and finds that despite the sponsor’s claims to the applicant to the contrary (including threatened litigation against the applicant), the sponsor had ceased to employ the applicant from 19 March 2018.  The Tribunal notes that the one-off payment of $3,824.00 made by the sponsor to the applicant on 5 December 2018 was likely a payment of accrued annual leave that the applicant had been entitled to prior to ceasing work for the sponsor in March 2018.  The applicant concedes that she did not work from 19 March 2018, and as such, she had ceased employment for more than 90 days by the date the Department issued the Notice.

21. For these reasons, 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.

    Consideration of discretion

22. 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’.

23. 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.  There is no 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 the applicant: see Chow v MIMIA [2002] FCA 1459; Lobo v MIMIA [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v MIMIA [2006] FCA 1767 at [49]; Moller v MIAC [2007] FMCA 168 at [14]; and Sakhno v MIAC [2007] FMCA 1492 at [55].

24. The applicant was granted a Subclass 457 visa on 29 January 2015 to enable her to remain in Australia and work for the sponsor in the occupation of Pastrycook.  The purpose of the Subclass 457 visa scheme was to fill genuine shortages in the Australian skilled job market and the occupation of Pastrycook was included on the list of occupations that has been designated for that purpose.

25. In written submissions dated 20 June 2019, the applicant told the Tribunal that she has at least 2 other potential sponsors willing to sponsor her to work as a Pastrycook in their The Cheesecake Shop franchises, including the applicant’s current employer, Chirag Cakes Pty Ltd.  The Tribunal has received signed letters from the owners of both franchises confirming their willingness to sponsor the applicant once her visa issues are resolved.

26. The Tribunal places considerable weight on the fact that the applicant has documentary evidence from 2 employers willing to sponsor her, including her current employer, when considering whether to exercise the discretion to cancel the applicant’s visa.  In particular, the Tribunal notes the applicant’s considerable efforts to secure new employment and a new potential sponsor once she was aware that her employment with Evergreen Environmental Solutions Pty Ltd was untenable.

27. The Tribunal notes that there is information on the Departmental file indicating that the applicant was not honest in her telephone interview with Departmental officers on 24 July 2018.  The Tribunal has considered the transcript of that interview, where the applicant states that she still works at The Cheesecake Shop in Mornington.  The Tribunal discussed this with the applicant at the hearing, and notes the applicant’s genuine contrition for her actions.  The applicant told the Tribunal she was scared during the telephone interview and was worried about repercussions from the sponsor if she had said anything differently, but acknowledged that she should not have made statements that she still worked in Mornington. 

28. The Tribunal considers this to be a relatively minor infraction, especially given the applicant’s vulnerability in respect of the sponsor, who wielded considerable influence over the applicant, and notes that other than non-compliance with condition 8107(3)(b), the applicant has not had any compliance issues in the past.  The Tribunal notes the applicant’s demonstrated intent to abide by all her visa conditions: in particular, the applicant took steps to have work rights granted on her current bridging visa and did not work for a period of months, causing considerable financial strain for her family, in order to ensure she remained compliant with her visa conditions.  This also weighs against exercising the discretion to cancel the applicant’s visa.

29. In relation to hardship that would be experienced by the applicant if her visa were cancelled, the Tribunal acknowledges the applicant’s evidence at the hearing that due to her period of extended unpaid leave from the sponsor, she has been in serious financial hardship.  The applicant told the Tribunal that on returning from their trip to India, her husband has been unable to secure steady employment, and that since being granted a Bridging Visa E, no one is willing to employ him. 

30. The applicant told the Tribunal that she and her family have established themselves in Australia over 10 years, and that they have been forced to sell assets to maintain cashflow while she was not working, including the sale of a block of land on which the applicant and her husband had planned to build their dream home.  The applicant also stated that she has had to withdraw her daughter from a private school and enrol her in the local government high school, and that her studies have been severely affected by this.  The Tribunal accepts that the cancellation of the visa would result in substantial disruption to the applicant relating to her and her family’s established life in Australia, and gives some weight to this factor.  

31. The Tribunal acknowledges that upon cancellation of her visa, the applicant would become an unlawful non-citizen and be liable to be detained under s.189 of the Act, and liable for removal under s.198 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.

32. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled in accordance with s.116 of the Act. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for and being granted a new visa from overseas.

33. In considering whether the 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 (CROC), and the International Covenant on Civil and Political Rights (ICCPR).

1. The Tribunal notes that in the primary decision record, the delegate gave some weight to the factors regarding the hardship to be experienced by the applicant and her family, including her two children, if her visa was cancelled.  Specifically, the delegate considered CROC and whether cancellation would not be in the best interests of the applicant’s two children, and found that the potential consequences of their visa cancellation did not provide a significant reason not to cancel the visa.

2. The Tribunal notes that there was no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.  Therefore, the Tribunal is satisfied that there is little in these matters to weigh against exercising the discretion to cancel the applicant’s visa.

3. The applicant has demonstrated a willingness to seek new employment in order to continue working in her nominated occupation, and is a sought-after Pastrycook in Melbourne.  The Tribunal considers that the purposes of the visa program would be upheld if her visa was not cancelled. The Tribunal has weighed up carefully all relevant matters and has concluded that, on balance, the grounds that act in favour of exercising the discretion to not to cancel the applicant’s visa outweigh the grounds for cancelling.

4. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

5. 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.

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

   Mary Sheargold
   Member