Caren (Migration)

[2017] AATA 2534

Caren (Migration) [2017] AATA 2534 (9 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Caren Caren
Mr Susanto Kurniawan
Master Nelson Rizky Kurniawan
Miss Sharon Yosephine Kurniawan
Miss Mutiara Yosephine Kurniawan

CASE NUMBER:  1700824

DIBP REFERENCE(S):  BCC2016/3579261

MEMBER:Catherine Carney-Orsborn

DATE:9 August 2017

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 other applicants.

Statement made on 09 August 2017 at 5:22pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Requirement to work only in occupation listed in approved nomination – Accountant – Applicant undertaking unrelated duties – Unethical behaviour of company director – Applicant forced to take on unrelated duties – Nomination application pending – No jurisdiction to review automatic cancellations

LEGISLATION

Migration Act 1958, ss 116, 140, 348

Migration Regulations 1994, 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 11 January 2017 made by a delegate of the Minister for Immigration 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 first named applicant had not complied with a condition of her visa and the reasons for cancelling her visa outweighed the grounds for not cancelling the visa. 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 applicant appeared before the Tribunal on 9 August 2017 to give evidence and present arguments.

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 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?

8. 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. In this instance condition 8107(3)(a)(i) attached to the applicant’s visa. This condition requires that the applicant “must work only in the occupation listed in the most recently approved nomination for the holder.”

9. It is not in dispute that the applicant was undertaking other duties outside the nominated occupation of Accountant. At the hearing the applicant confirmed that this was the case.

10. 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 power to cancel the visa should be exercised.

    Consideration of discretion

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

12. The purpose of the applicant’s stay in Australia was to work.  She was employed as an accountant in Tennant Creek Northern Territory.  The Tribunal is satisfied that her primary purpose was to work in Australia.

13. The applicant admits that she did not comply with the condition to only work as an Accountant.  She states that she was carrying out other duties which she felt she was compelled to undertake.  She was trying to continue to do her accountant duties as well as undertake other duties under the direction of her employer.

14. The applicant states that this continued and she was working long hours including weekends to complete all her duties as Accountant and the other duties.  She states that she continued to do this until she disclosed to the Board of Directors including the vice-chair that this was happening.  She took advice from her immigration agent and resigned from the position.

15. The applicant provided to the Tribunal statements from the Chair, Vice-Chair and colleague of the service which employed and sponsored the applicant.   They all confirmed that the applicant was unfairly treated and that she was the one who alerted the Committee and Department to the unfair treatment she was receiving.

16. The Tribunal independently contacted the previous Vice-Chair.  She confirmed the information provided in her statement.  She confirmed that the previous Director had been exploiting the applicant.  She confirmed that she was a very valued staff member.  She further confirmed that she was continuing with her duties as an Accountant which the Director exploited her and compelled her to undertake unrelated duties.

17. The applicant gave evidence that she was fearful of losing her employment.   She has three children who are currently being educated in Australia.  She said they are settled and doing well and it would be a significant hardship to them if she was not allowed to continue to work in Australia.  She stated that she has sold all the family property in Indonesia.

18. The committee members gave evidence that the ex-director had been involved in fraud on the Department of Immigration.  They claimed that they had alerted the Department and had worked with them to investigate the exploitation that the ex-Director was perpetrating.   

19. The ex-vice-chair gave evidence that the ex-director is currently working in a council service and she is not sure what further action if any the Department of Immigration was undertaking.

20. There is nothing before the Tribunal to indicate that the applicant has been untruthful in her conduct with the Department.  The evidence points to her being the whistle blower on the unethical behaviour of the ex-director. 

21. The family members of the applicant would if her visa was cancelled have their visas automatically cancelled they would have to leave their schooling the return to Indonesia.  This would be disruptive to their education.  The Tribunal accepts that they could apply for their own student visas or bridging visas however it would be difficult for them to continue their education without the support of their mother (the applicant).

22. There is no information before the Tribunal that points to any international obligations being breached as a result of the cancellation.  The applicant confirmed at hearing that she does not face any harm if she was returned to Indonesia.

23. The Tribunal has considered all the evidence and information provided.  The Tribunal tested that evidence and confirmed independently the statements provided from the committee of her former employer.  They confirmed that the circumstances in which the ground for cancellation arose were beyond the applicant’s control.  They further confirmed that she was the whistle blower who informed them and the department of the unethical behaviour of her supervisor.   They all stated that she continued to do her work as an Accountant as well as attempt to undertake the extra duties forced upon her with the threat of being unemployed.

24. The Tribunal places weight on the fact that she was the whistle blower and informed the appropriate persons. The Tribunal questioned the applicant about why she allowed this to go on beyond 12 months.  She confirmed that for some time she felt compelled and was concerned for her family and their education, nevertheless she did act when she had informed herself through her migration agent of the appropriate action.

25. The purpose of the visa is to work in Australia.  The applicant secured employment as an accountant within a month of resigning from her previous employer.   She continues to work as an accountant for that employer.  The present employer has lodged a nomination to sponsor the applicant and she is currently awaiting the outcome of that nomination application.  She is financially supporting her three student children

26. After weighing up and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

27. 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.

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

    Catherine Carney-Orsborn
    Member