Binti Mustaffa (Migration)

[2021] AATA 5451

Binti Mustaffa (Migration) [2021] AATA 5451 (17 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Norazura Binti Mustaffa
Master Nik Mohamad Daniel Hakim Bin Mohamad Nazri
Miss Putri Alisha Binti Mohamad Nazri
Mr Nik Mohamad Akmal Irfan Binti Mohamad Nazri
Miss Putri Aishah Maisarah Binti Mohamad Nazri

REPRESENTATIVE:  Mr Farnam Razzaghipour (MARN: 9789359)

CASE NUMBER:  2112769

HOME AFFAIRS REFERENCE(S):           BCC2021/721132

MEMBER:Michael Cooke

DATE:17 December 2021

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 482 - Temporary Skill Shortage visa.

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

Statement made on 17 December 2021 at 12:23pm

CATCHWORDS
MIGRATION – cancellation –Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant ceased employment exceeded 60 consecutive days – applicant breached condition 8607 – applicant took honest and reasonable steps to procure new employment – separation of the family unit – pending Partner visa application – best interests of the applicant’s children – no jurisdiction with respect to the other applicants – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116,140, 348
Migration Regulations 1994, Schedule 2, cl 482.212

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 20 September 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant has not complied with subclause (5) of condition 8607 attached to her visa. The basis for the cancellation of the other applicants’ visas was consequential cancellations under s.140. 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 primary applicant (the applicant) has tendered a comprehensive submission to the Tribunal addressing her visa situation and seeking to set aside the cancellation.

5. The applicants were represented in relation to the review.

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). 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?

   s.116(1)(b) - non-compliance with conditions

8. 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 8607(5) attached to the applicant’s visa. This condition requires that if the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

9. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa is MRVL Investments Pty Ltd (‘the sponsor’). The nomination was approved on 13 September 2018. The sponsor advised the Department that the applicant ceased employment with them effective 05 March 2021. This indicates the applicant has not complied with condition 8607(5) because the period during which she has ceased employment exceeded 60 consecutive days. The applicant is not the subject of an approved sponsorship at time of writing.

10. The sponsor nominated the applicant to work in a nominated occupation which is Chef (ANSZCO 351311). The sponsor has advised the Department that she ceased employment with them effective 05 March 2021. Her visa was granted subject to condition 8607 which requires that the period during which the applicant ceases employment must not exceed 60 consecutive days. It has been more than six months since she ceased employment with the sponsor, which exceeds the 60 days permitted by condition 8607(5). The applicant is not the subject of an approved sponsorship at time of writing.

11. In response to the NOICC, the applicant did not specify whether she agreed that there are grounds for cancellation. She stated that her personal circumstances have changed, and she lodged a Partner visa application on 20 August 2021 having remarried to an Australian citizen.

12. The applicant has provided an explanation for her departure form her nominated employer in a submission to the Tribunal. She indicated that she was under significant financial and family pressure through the cost of the children’s education and working full time as a single parent. Her former husband had returned to Malaysia and taken another wife. An opportunity presented itself in Canberra where there was free education and the promise of a sponsorship. However, with the onset of the pandemic and issues with her new employer’s management in Malaysia the Canberra-based offer of sponsorship did not eventuate. She has now been offered sponsorship by a new Canberra employer who has provided an offer to the Tribunal.

13. 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

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’.

    Consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

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

15. The applicant was granted a Temporary Skill Shortage (Subclass 482) visa on 15 October 2018 for the purpose of employment with an approved sponsor in a skilled occupation in Sydney which could not be filled from within the Australian workforce. The sponsor nominated her to work in the position of Chef (ANSZCO 351311).

16. The sponsor advised the Department that the applicant ceased employment with them effective 05 March 2021. According to Departmental records, the applicant does not have any other pending nominations with another sponsor after the most recent nomination for the visa was approved with the sponsor MRVL Investments Pty Ltd.

17. The applicant in her submission and additional information has indicated that for family education reasons she had to relocate to Canberra. She has been able to secure the promise of a further sponsorship nomination from her new employer. Furthermore, Departmental records indicate that on 20 August 2021 the applicant lodged a Partner visa based on her relationship with another person.

18. Based on the information before it the Tribunal is satisfied that the applicant’s purpose in Australia remains unchanged in a professional sense. She now has remarried, so her family status has changed dramatically.

19. The Tribunal gives this consideration minimal weight in favour of cancelling the visa.

    ·the extent of compliance with visa conditions

20. The applicant’s visa was granted subject to condition 8607. She has not had an approved nomination since her employment ceased with the sponsor on 05 March 2021. The Tribunal, overall, does consider the extent of her non-compliance with condition 8607 to be significant. However, there is no information to indicate that she has been non-compliant with any other visa conditions to which her visa was subject.

21. The Tribunal gives this consideration minimal weight in favour of cancellation.

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

22. The applicant did not provide any specific information in relation to this consideration to the delegate. However, she has provided a comprehensive response to the Tribunal concerning her situation.

23. The cancellation of her Temporary Skill Shortage visa would result in the applicant experiencing significant hardship (financial, psychological and emotional). Furthermore, she is a highly skilled Chef, and people in her profession are, apparently, in short supply coming out of the COVID 19 pandemic. Her present employer speaks highly of her skills and work ethic.

24. The Tribunal notes that the applicant has a pending Partner visa application. Cancellation under these grounds will not impact that process and she may be eligible for a Bridging E (Subclass 050) visa, which will allow her to remain in Australia lawfully whilst awaiting an outcome on this application.

25. The Partner visa application lodged 20 August 2021 indicates that the applicant has a spouse who is currently in Australia. She has indicated in her submission that, naturally, her spouse will experience serious emotional and familial hardship as a result of any possible visa cancellation. Furthermore, she is loath to be saddled with a visa cancellation on her Departmental visa history in view of her subsequent Partner visa application.

26. The Tribunal gives this consideration heavy weight against cancellation.

    ·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.

27. The circumstances which led to the grounds for cancellation were that the applicant ceased employment with the sponsor and has not successfully obtained a new nomination with a new sponsor. Therefore, the period during which the applicant has ceased employment has well exceeded 60 consecutive days. There is evidence before the Tribunal to indicate there were extenuating circumstances that led to the grounds existing and which she has addressed fully in her submission to the Tribunal. The applicant has indicated that she has been making attempts to obtain a new nomination with another approved sponsor. Her present employer has informed the Tribunal he is willing to do so. In response to the NOICC, the applicant confirmed that her personal circumstances have changed, and she lodged a Partner visa application on 20 August 2021.

28. The Tribunal gives this consideration minimal weight in favour of cancellation.

    ·past and present behaviour of the applicant towards the Department

29. There is no information before the Tribunal to suggest the applicant has been uncooperative with the Department or Departmental staff.

30. The Tribunal give this consideration some weight against cancellation.

    ·whether there would be consequential cancellations under s 140

31. The applicant has the following dependants whose visas would, or may, be cancelled under section 140 of the Act:

    ·Nik Mohamad Daniel Hakim BIN MOHAMAD NAZRI

    ·Putri Alisha Kyra BINTI MOHAMAD NAZRI

    ·Nik Mohamad Akmal Irfan BIN MOHAMAD NAZRI

    ·Putri Aishah Maisarah BINTI MOHAMAD NAZRI

32. The above listed secondary visa applicants’ Temporary Skill Shortage visas were granted on the basis on being ‘a member of the family unit’ of the main applicant. The applicant’s family members are currently onshore, and a visa cancellation decision will impact their residential status in Australia - dramatically. The applicant has already attempted unsuccessfully to relocate to Malaysia. She insists that they would suffer significant educational and emotional hardship if they were to return to Malaysia.

33. The Tribunal give this consideration significant weight against cancelling the visa.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the applicant being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

34. The applicant has a pending Partner visa application before the Department. She was granted an associated Bridging A (Subclass 010) upon lodgement of this application. If I decide to cancel her current visa, the Bridging A visa will automatically cease. If the applicant does not resolve her visa status, she will become an unlawful non-citizen and may be liable for detention under section 189 of the Act. Were the visa to be cancelled, the applicant may be eligible to apply for a Bridging E visa to remain in Australia while awaiting the outcome of the pending Partner visa application. Cancellation of the visa under these grounds will not incur any penalty under Public Interest Criterion 4013, to prevent the applicant from being granted a new visa, providing she establishes the eligibility for one.

35. The Tribunal gives this consideration some weight against cancelling the visa.

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

36. The applicant has four members of the family unit attached to the Temporary Skill Shortage visa, her four children, Nik Mohamad Daniel Hakim aged 8, Putri Alisha Kyra aged 15, Putri Aishah Maisarah aged 17, and Nik Mohamad Akmal Irfan aged 21.

37. In these circumstances, the Tribunal has considered the International Covenant on Civil and Political Rights (‘ICCPR’) and the United Nations Convention on the Rights of the Child (‘CRC’), including Australia obligation to put the best interest of the child into consideration while making a decision related to the family unit. In relation to cancellation action this consideration does not preclude cancellation of a visa but requires the delegate to turn their mind to the consequences of cancellation, particularly whether a child will be separated from the family unit.

38. The applicants, Nik Mohamad Daniel Hakim, Putri Alisha Kyra, Putri Aishah Maisarah are currently holding Bridging A visas. The applicant’s eldest dependent, Nik Mohamad Akmal Irfan, was not included in the applicant’s Partner visa application and does not currently have any other pending visa applications. In the event of cancellation, the applicants’ (Nik Mohamad Daniel Hakim, Putri Alisha Kyra, Putri Aishah Maisarah) Bridging A visas will automatically cease. This also means that the applicant and all dependents will cease to hold substantive visas and will become unlawful non-citizens because of visa cancellation. Thus, the family’s status is, therefore, unlikely to result in separation of the family unit.

39. They may be eligible to apply for Bridging E visas to enable them to remain lawfully in Australia while they make arrangements to depart or await pending visa applications.

40. The applicant and her minor dependents’ continued stay in Australia is reliant on the pending Partner visa application. The applicant’s eldest dependent, Nik Mohamad Akmal Irfan, is an adult and cannot be considered under the CRC, however his circumstances need to be assessed under the ICCPR regarding maintaining family unity. Nik Mohamad Akmal Irfan was not included in the pending Partner application. The applicant has made claims that he has some care and welfare responsibilities for his younger siblings.

41. Whilst the Tribunal acknowledges these circumstances, the option to return to Malaysia (the country in which all applicants are citizens and hold valid passports) is available if their visa situation does result in some separation of the family unit. This will enable them to maintain family unit under the ICCPR. Saying that, the applicant has already relocated her family once to Malaysia - unsuccessfully. She insists that their lack of fluency in Malay and the total difference in the school systems has been a positive disincentive to their educational progress. Her senior son (she insists) does not have the linguistic ability and skill to be eligible for a place at a Malaysian university.

42. Furthermore, the applicant has remarried, and her children have also now become part of a blended family because of the applicant’s remarriage. Her Australian husband is himself a single parent. The applicant insists in her submission that her children have become accustomed to their new familial relationship which would be disrupted by a decision to affirm the cancellation.

43. Therefore, the Tribunal considers a visa cancellation decision would lead in these familial circumstances to a breach of Australia’s international obligations. The Tribunal finds that (under the rubric in Wan) the best interests of the applicant’s children would plainly be to remain in Australia in their new blended family arrangement.

44. Given the applicant’s familial circumstances, the Tribunal gives this consideration heavy weight against cancellation.

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

45. Not applicable

    ·any other relevant matters

46. None

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

    DECISION

48. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

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

    Michael Cooke
    Senior Member