Bhattarai Gurung (Migration)

[2020] AATA 5052

Bhattarai Gurung (Migration) [2020] AATA 5052 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pooja Bhattarai Gurung
Mr Bijendra Gurung
Master Evan Gurung

CASE NUMBER:  2005364

HOME AFFAIRS REFERENCE(S):          BCC2019/4944347

MEMBER:Joanne Bakas

DATE:13 October 2020

PLACE OF DECISION:  Adelaide

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 13 October 2020 at 12:14pm

CATCHWORDS
MIGRATION – cancellation – Subclass 457 (Temporary Work (Skilled)) visa – breached conditions – ceased employment for more than 90 consecutive days – new management of business terminating sponsorship – attempts to find related work unsuccessful – impact of Covid-19 – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 140(1), 189, 348
Migration Regulations 1994, condition 8107(3)(b), cl 457.511

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 17 March 2020 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 applicant became the subject of an approved nomination by their sponsor Sri Siva Sai Pty Ltd on 11 October 2016 and was subsequently granted a Subclass 457 (Temporary Work (Skilled)) visa on 11 October 2016 which had an initial expiry date of 11 October 2020. On 21 August 2019 the Department of Home Affairs were notified by the sponsor that the applicant had ceased employment on 19 August 2019 due to closure of the business. The Department put to the applicant on a Notice of Intention to Consider Cancellation (NOICC) dated 10 February 2020 that under s.116(1)(b) of the Migration Act the applicant is required to comply with all conditions of their visa ; including condition 8107(3)(b) which requires that if the visa holder ceases employment the period during which the visa holder ceases employment must not exceed 90 days. The applicant was notified that their apparent violation of this condition could form grounds for the cancellation of their visa and was invited to comment.

3. The applicant responded to the NOICC on 6 March 2020. In the response the applicant stated that they were advised at the end of July 2019 that the salon where she was employed as a Salon manager with Sri Siva Pty Ltd will be closing due to a dispute between the employer and the franchisor, resulting in a change of management. The notice came as a complete surprise to her and put her in very difficult circumstances and she has gone through financial hardship since which affected her and her young family. She also stated in the response that she was continuing to search for a new employer who can provide her with sponsorship for the same position

4. In the Departmental decision dated 17 March 2020, the delegate found that the grounds for cancellation of the visa were made out on the basis that the applicant had not complied with section 116(1)(b) of the Act on the basis that the Minister was satisfied that the applicant did not comply with a condition of their visa; in this instance condition 8107(3)(b) attached to the applicant’s visa. In the assessment of the discretionary factors as to whether or not the visa should be cancelled the delegate found that the visa should be cancelled, having regard to all the circumstances. On 17 March 2020 the applicant applied for review of their visa cancellation with the Tribunal.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. 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 the second and third named applicants.

7. The applicants appeared before the Tribunal via telephone on 1 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepalese and English languages.

8. The applicant sought additional time to provide the Tribunal with documentation to support her position regarding the efforts she has made to find alternate employment. This was received by the Tribunal on 3 September 2020 and the Tribunal proceeded to determine the application before it.

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 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?

11. 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 at clause 8107(3)(b) that if the visa holder ceases employment the period during which the visa holder ceases employment must not exceed 90 days.

12. It is not disputed by the applicant that she ceased work with Sri Siva Sai Pty Ltd on 19 August 2019. She submits this was due to the salon where she was sponsored being taken over by new management which did not wish to continue the sponsorship. As such she is in breach of condition 8107 attached to her visa. 

13. It has not been contended that the applicant has been employed at any time after 19 August 2019 and it follows that she has clearly ceased employment for more than 90 consecutive days.

14. As the applicant has ceased employment for more than 90 consecutive days, she is in breach of condition 8107 that is attached to her visa and the ground for cancellation in section 116(1)(b) exists. As this 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

15. 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’.

16. According to cl.457.511, a subclass 457 visa allows a person to remain in Australia for four years after the grant of the visa.  It follows that the visa would be ceasing in any case shortly, on 10 October 2020, in approximately a month’s time.

17. The decision of the delegate, provided by the applicant, notes that in response to the NOICC of her visa, the applicant stated her sponsorship ceased because of a dispute between the employer ad the franchisor, resulting in a change of management.  She had no intention of leaving the position. She has not yet been successful in obtaining a new sponsorship but is hopeful she will find a suitable sponsor for a position as a salon manager.  

    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

18. The applicant submits that she has lived in Australia for 14 years.  It was not her intention to leave that sponsored employment.  She has been trying to find a new sponsor but has not as yet been successful.  Following the hearing the applicant provided the Tribunal with correspondence to establish that she has been attempting to find a new sponsor.

19. At the hearing the applicant also stated that she has compelling reasons to remain in Australia.  Her son was born here.  She would like to be able to remain in Australia for his future.  She is not able to return to Nepal due to the Covid-19 pandemic. She has many skills gained form her study and work in Australia and wants to make use of these skills in Australia.

20. The Tribunal is cognisant of the circumstances that the applicant was granted the visa for the purpose of being able to temporarily fill a skill shortage in a particular area and to work in Australia for an approved sponsor in a skilled occupation for which she was specifically nominated and which could not be filled from within the Australian workforce.

21. The applicable visa conditions allow the applicant 90 days from ceasing employment with the sponsor in which to pursue and secure a new sponsor or to apply for another visa in line with a valid purpose for wishing to remain in Australia, or alternatively, to arrange to depart Australia. The applicant stated at the hearing that she has not been able to find another sponsor.  There is otherwise no evidence before me that she has had any other nominations lodged by employers since her employment with her sponsor ceased.  The cessation of employment with her sponsor means that her ongoing stay with no sponsor is not in line with the purpose of the visa.  During the 90 day period a person continues to hold the visa for an extended period to continue searching for another sponsor, or alternatively to await the outcome of an appeal by a potential sponsor to this Tribunal.

22. The applicant gave her evidence in an honest and forthright way and the evidence indicates that the applicant has made attempts to regularise her immigration status through finding alternate employment but has not as yet been successful.

23. The evidence before the Tribunal indicates that the cessation of the applicant’s employment was due to circumstances beyond the applicant’s control and the Tribunal accepts that the applicant has made attempts to find alternate employment.

24. These circumstances weigh somewhat in favour of not cancelling the visa. 

    The extent of compliance with visa conditions

25. The applicant’s subclass 457 visa was granted subject to condition 8107.

26. The Tribunal acknowledges and takes into consideration that it has been in excess of the 90 continuous day period allowed under condition 8107(3)(b) for a visa holder to secure a nomination with another approved sponsor. The period during which the visa holder ceased employment was some seven months, which exceeds the 90 days permitted by clause 8107(3)(b).

27. The applicant has not been able to find another sponsor and the Tribunal considers this has been an ample amount of time to pursue her options to find a new approved sponsor, be granted another visa, or depart Australia.

28. The applicant submits that it is very difficult to find a sponsor as a Beauty Salon Manager that pays the proper amount.  In addition the Covid-19 pandemic has made it very difficult to gain employment in this area. She immediately started to apply for jobs but some potential employers asked her for money to sponsor her.  Others offered only part-time work and another offered a position in a salon but not a management position. Another employer was only willing to sponsor her by taking an extra charge from her.  However, she could not afford this. She submitted that she provided documents to support her claims of the efforts she has made to the department when she applied for a Bridging visa.

29. There is nothing before the Tribunal to show that the applicant has not otherwise complied with the conditions of her visa.

30. However, as the applicant has not as yet been able to find an alternate sponsor or lodge a new visa application the Tribunal gives this consideration some weight in favour of cancelling the visa.

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

31. The applicant submits that it will be very hard, financially and emotionally, on her and her family if she had to return to Nepal.  They do not have anything in Nepal.  She came here at a very young age and has lived in Australia for 14 years.  There is no good situation to return to.  Her son goes to school here.

32. In addition, both her younger and older sister are Australian citizens and her parents live in Australia. Her husband’s parents still reside in Nepal.  Her husband is working at Woolworths and he is taking care of all of the family’s financial needs. Having been in Australia for so long will make it difficult to also settle her financial situation including credit cards.  It is not possible for her and her family to return because they will be facing a financial crisis. She has many loans and debts to pay because things have been very difficult for them due to the pandemic in Western Australia.

33. The Tribunal notes that the applicant did hold a previous student visa first granted on 5 June 2007 and accepts that there will be a significant degree of hardship that will result to the applicant and her family members, should the visa be cancelled. In particular the Tribunal considers the applicant may face emotional hardship given the length of time the applicant has resided in Australia.

34. The Tribunal considers that the applicant’s circumstances regarding the hardship factor weigh substantially against cancellation of the visa.

    Circumstances in which ground of cancellation arose

35. The applicant submits that the ground for cancellation arose because her employer changed management following a dispute between the employer and franchisor and as a result changed management.  The new management did not wish to continue with the sponsorship and she had no reasonable forewarning of this.

36. The Tribunal notes that the applicant submits she has attempted to find an alternate sponsorship and accepts that the applicant would not have left her sponsored position by choice.

37. The applicant’s evidence is consistent with Departmental records which indicate no new nomination for sponsorship has been approved in regard to her.

38. These circumstances weigh somewhat in favour of not cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

39. There is no evidence before me indicating the applicant has not been cooperative with the department and she has responded to the NOICC and there is otherwise no evidence of any previous breach of visa conditions.

40. The applicant submits that she did not speak to the Department regarding the cessation of her employment as she was not aware she was required to do so.

41. The Tribunal notes that the delegate observed: “There is no evidence the visa holder has been uncooperative with the Department or departmental staff and she has engaged in the cancellation process by responding to the NOICC. The visa holder has stated that she has always complied with the conditions of her visa. The Tribunal affords this consideration a little weight against cancelling the visa.”

42. The Tribunal also considers that this factor weighs somewhat against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

43. If the applicant’s visa is cancelled, her husband’s will also be as will her son’s as members of the same family unit. 

44. The Tribunal affords this consideration a little weight against cancelling the visa.

    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

45. In circumstances where the visa is cancelled, the applicant and her dependents will no longer have suitable visa status to allow them to remain in Australia. She will thus become an unlawful non-citizen liable for detention under s.189 of the Act and removal under s.198 of the Act.

46. The applicant would also be subject to s.48 of the Act which would limit the potential to lodge further visa applications onshore in Australia.

47. As such, the Tribunal gives this consideration a little weight against cancelling the visa.

    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

48. 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).

49. As noted by the delegate, the applicant’s child’s visa was granted because he is a member of the family unit of the primary visa holder. If a decision is made to cancel the applicant’s visa, the child’s visa will consequentially be cancelled as a result. The Tribunal notes that this will keep the family’s status aligned and is therefore unlikely to result in a separation of the family unit. A decision as to where the family members reside, including the possibility of relocation, is a matter for the child’s parents to consider if required, following visa cancellation.

50. 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.

51. The applicant’s son is nearly four years old.  In the event of a visa cancellation outcome, it is unlikely to cause the breakup of the visa holder’s family unit or separation of any family members.  The Tribunal acknowledges that there would be a period of readjustment required by the child including potentially language factors in a new country and some social reintegration with new friendship groups. However, since the child is aged four years, the Tribunal does not consider that the applicant’s son would experience substantial hardship readjusting to life outside of Australia, if required to depart. The Tribunal is satisfied that it is in the best interest of the applicant’s child to remain with his family and there is no reason to suggest that this is not possible.

52. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR would not be affected by the cancellation of the applicant's visa as the family would not be separated because of the cancellation.

53. There is no information before the Tribunal which indicates that visa cancellation would impact Australia's international obligations or would be in breach of Australia's non-refoulement obligations.

54. The Tribunal has considered that the circumstances of this case would not lead to a breach of any other international obligations Australia may have.

55. The Tribunal therefore attributes little weight to these considerations in deciding whether to exercise the discretion to cancel the visa.

    Any other relevant matters

56. There are no other relevant matters evident or raised by the applicant.

57. In considering the circumstances as a whole, the Tribunal is satisfied that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled.

    DECISION

1. 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.

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

   Joanne Bakas
   Member