Chinala (Migration)

[2020] AATA 2383

Chinala (Migration) [2020] AATA 2383 (26 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rashmitha Chinala
Mr Raju Suram
Mr Sricharan Reddy Suram
Miss Shriyanshi Suram

CASE NUMBER:  1930168

HOME AFFAIRS REFERENCE(S):          BCC2019/3106486

MEMBER:John Cipolla

DATE:26 March 2020

PLACE OF DECISION:  Sydney

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 26 March 2020 at 12:12pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – employment with sponsor ceased over 60 days – position of Customer Support Officer – ICT Support Analyst – applicant was refused maternity leave – medical issues – closure of the 457 program – applicant’s plans to establish business in Australia – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 116
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 17 October 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 applicant was granted a Subclass 457 Temporary Work (Skilled) visa on 12 March 2018. On 17 October 2019 the delegate cancelled the visa on the basis that the applicant had failed to comply with condition 8107(3)(b) which requires that if employment with their sponsor ceases, the period in which visa holder remains unemployed must not exceed 60 consecutive days.  The delegate noted that the applicant had been the subject of an approved nomination since 12 March 2018 for the position of a Customer Support Officer – ICT Support Analyst (313112) and that on 2 November 2018 the Department received notification form the employer that the applicant had ceased employment in the position as of 16 October 2018. On 16 September 2019 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) advising that this information may form part of a decision to cancel their visa and was given the opportunity to provide comment.

3. On 23 September 2019 the applicant responded indicating that at the time of cessation of employment she was suffering from type two diabetes, was eight months pregnant, had had a sick mother and had requested maternity leave from her employer prior to her employment being terminated. The applicant asserted that she did not terminate her employment of her own accord.

4. On 17 October 2019 the delegate proceeded to cancellation, weighing the factors for and against the cancellation of the visa. When taking into account the purpose of the visa holder’s travel to and stay in Australia, the delegate noted the applicant’s intention was to temporarily participate in the workforce in a skilled occupation and that it was not appropriate to allow additional time for a visa holder to seek alternate employment, thus apportioning this consideration some weight in favour of cancellation. When assessing the applicant’s compliance with conditions subject to which her visa was granted, the delegate reasserted that the applicant had ceased work for more than 60 consecutive days without an approved nomination, contrary to the conditions on her visa and therefore gave this consideration some weight in support of the cancellation. The delegate acknowledged that the applicant had spent several years in the country and that cancellation of the visa may result in some hardship owing to the social and economic ties the applicant had developed but concluded that this factor should only lend modest weight in favour of the applicant. The delegate also turned their mind to the circumstances in which the non-compliance occurred noting that the applicant’s employment was terminated following a request for maternity leave and that despite the fact that leave entitlements were not provided as evidence, the Department accepted that this factor may have been beyond the applicant’s control, however despite this the applicant was unable to obtain alternate employment in the 12 months following cessation of her employment. Having assessed the consequential cancellation of visas under s140 the delegate identified that three persons in the applicant’s family unit to whom this would occur and determined that consequential cancellation of visa status of the secondary visa holders would enable the family to depart the country together and that this favoured the cancellation. Finally, the delegate considered that the applicant had two children, but given that the eldest was only 6 years of age they had not had the opportunity to develop significant economic and social ties to the country and that a prospective cancellation would enable the children to remain in the care of their parents, which gave some weight in favour of cancelling the visa.

5. 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.

6. The applicant appeared before the Tribunal on 17 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

7. At the outset of the review hearing the Tribunal explained the respective issues in the review and the prospective outcomes of the review.

8. The Tribunal made reference to the cancellation process and the NOICC dated 16 September 2019 to which the applicant provided a response dated 23 September 2019. The Tribunal noted that the Department determined after consideration of the response that the visa should be cancelled.

9. The Tribunal noted that the hearing invite was sent to the applicant on 6 February 2020 and that the applicant confirmed that she would be attending the hearing with witnesses.  The Tribunal noted that the applicant was represented for the purposes of the review by a registered migration agent.  The Tribunal noted that just prior to close of business on 16 March the Tribunal was advised that the applicant had changed representatives and wanted a postponement of the hearing.

10. The Tribunal noted that it had considered the request and had decided to proceed with the hearing as scheduled.  The Tribunal advised that the reason for this was that the applicant had been represented, that she had been given over a month’s notice of the scheduled hearing and that the Tribunal would provide the applicant’s new representative with a copy of the hearing audio after the hearing and provide them with 7 days post hearing to provide any relevant post hearing submission.

11. The Tribunal noted that the applicant in her response to the NOICC advised that at the time of the cessation of her employment in October 2018 she was eight months pregnant and that she suffered with type II diabetes and low blood pressure. She further advised that her mother travelled from India to provide assistance to her, but she herself became sick and the applicant then needed to take care of her mother. The applicant stated that she requested maternity leave from her sponsoring employer however this request was not approved and hence the applicant ceased employment in October 2018. The applicant implored the Department to consider her circumstances and provide her with an opportunity to find another sponsoring employer. To date this has not transpired.

12. The Tribunal noted that based on the evidence before it the applicant who gave birth to her daughter on 18 December 2018 at 38 weeks would have been pregnant from early February 2018, just prior to the grant of her Subclass 457 visa on 12 March 2018. In a post hearing submission which included a copy of an ante-natal record the applicant indicted she was approximately 8 weeks pregnant on 18 May 2018.

13. The Tribunal made reference to the purpose of the now obsolete Subclass 457 vsa regime. The Tribunal noted that the visa existed to enable Australian businesses to employ, on a temporary basis, an overseas employee because of a skill shortage in a particular occupational group. The Tribunal noted that an employer sponsoring an employee for a Subclass 457 visa would have an expectation that the person would be able to work for the business for the duration of the visa, which in this case was from 12 March 2018 through 12 March 2020 as confirmed by the applicant in her post hearing submission. The Tribunal noted that the applicant had been sponsored to work in the role of ICT Customer Support Officer. The Tribunal stated that there would have been an expectation that the applicant would have been able to fulfil her duties in the nominated position so that the relevant skill shortage could be met.

14. The Tribunal noted that based on the evidence before it that the applicant fell pregnant prior to the grant of her visa on 12 March 2018 and asked the applicant whether she told her employer of her pregnancy at the time of visa grant. The applicant stated that she did not. The Tribunal asked the applicant why she would withhold such important information from her sponsoring employer. The applicant stated “I thought I could manage.” The Tribunal asked the applicant when she advised her employer that she was in fact pregnant and she advised in October 2018 two months prior to the due date of the birth of her daughter.

15. The Tribunal has had regard to the post hearing submission of the applicant and the provision of a photo of an ante natal card which indicates that she fell pregnant around 18 March 2018 some 6 days after the commencement of her visa.

16. The Tribunal asked the applicant when she first came to Australia and she advised on 26 December 2012. The Tribunal asked the applicant what type of visa she travelled to Australia on. The applicant stated that she was a secondary visa holder and that she held a dependent visa as a member of the family unit of her husband who held a Student visa. The Tribunal asked the applicant what her husband was studying and she advised business management. The applicant stated that she held a secondary visa as a dependent member of her husband’s family unit for nine months. She then was able to find herself a sponsoring employer to sponsor her for a 457 Temporary Business visa. The applicant stated that she was granted her first Subclass 457 visa on 2 August 2013 visa that was a valid until 2 August 2017. The Tribunal asked for details of the sponsoring business and her role. The applicant stated that she worked for an Australian business called Vensys as an ITC Support Manager. The applicant stated that prior to the expiration of that visa she applied for a position with the sponsoring business the subject of this cancellation action, Conlon Management.  The applicant advised that after lodging the application for a further Subclass 457 visa with a new sponsoring employer she was issued with a Bridging A visa which enabled her to work.

17. The Tribunal enquired of the applicant whether she was holding a Bridging visa with work rights now and she advised that she was given work rights about 3 to 4 months ago and that her husband held a Bridging visa with work rights.

18. The Tribunal noted that the applicant’s husband came to Australia as the holder of a Student visa, which is a temporary visa and that the applicant then applied for and was granted her first Subclass 457 visa also a temporary visa. The Tribunal asked the applicant what her ultimate objective for stay in Australia was. The applicant stated that she and her husband had plans for setting up a business in Australia. She advised that they had now spent close to 10 years in Australia. She advised that her husband had studied here and she had worked in Australia. The applicant stated that she hoped to undertake further studies in Australia to update her skills in the future.

19. The Tribunal noted that the applicant had two children and the applicant confirmed that she did, a son aged six and a daughter born on 18 December 2018, who is now 14 months old.

20. The Tribunal asked the applicant what hardship she and her family would experience if her visa remained cancelled. The applicant stated that if she returned to India that she would find it difficult to obtain paid employment. The applicant stated that she would need to upskill and that it would be hard to settle down after many years in Australia. The Tribunal asked the applicant what year her son was at school in Australia and she advised he was in year one. The Tribunal asked the applicant whether her son was born in Australia and she advised that he was born in India and came here as a young child at six months old.

21. With regard to the immigration history of the applicant’s family the applicant stated that her husband came to Australia in 2009. She advised that she and her husband were married in 2011 and that she came to Australia in 2012. She advised that she fell pregnant with her son and returned to India where her son was born in 2013 and then returned to Australia when her son was six months old.

22. The Tribunal asked the applicant when her most recent visit to India took place and she advised in March 2018. She advised that her son had difficulties adjusting to the Indian way of life and was not suited to that environment. The Tribunal asked the applicant whether there were any further issues that she wanted the Tribunal to consider with regards to the cancellation of her Subclass 457 visa and she advised that there were not.

23. In her post hearing submission as has been noted above, the applicant provided a copy of her ante natal card that indicated that she fell pregnant in March 2018, which coincided with the commencement of her employment and that the applicant did not advise her employer of her pregnancy until October of 2018. The evidence indicates that the applicant as a result of her falling pregnant and not advising her employer of this until she was close to 8 months pregnant indicated that the applicant would not be able to meet the requirements of her visa which anticipated her capacity to work for the sponsoring employer for 2 years.

24. The applicant also stated in her post hearing submission that she and her family wished to remain in Australia as har children had adapted to life in this country and she and her husband had lived in Australia for an extended period.  The applicant asked the Tribunal to set the cancellation aside exercising its discretion to do so.

25. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    Consideration of discretion

26. 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’.

27. The Tribunal discussed with the applicant at hearing the purpose for her travel to and stay in Australia. With regard to her travel history to Australia the applicant advised the Tribunal that she initially travelled to Australia in 2012 as a secondary visa holder as her husband held a Student visa. The applicant advised that she then applied for and was granted a Subclass 457 visa to work as an ICT Support Officer for Vensys from August 2013 until August 2017 and that she then applied for a second Subclass 457 visa which was granted to her on 12 March 2018, the visa that is the subject of the cancellation.  The Tribunal also noted that the applicant’s husband had only ever held a temporary visa, namely a student visa for which the applicant had initially entered Australia as a secondary visa holder.  The Tribunal discussed with the applicant the fact that at the time of or soon after the grant of her 457 visa she fell pregnant and did not disclose this fact to her sponsoring employer until she was 8 months pregnant.  When the applicant fell pregnant whether it was a planned or unplanned pregnancy it would have become apparent to her that she was not able to satisfy the requirements of her visa, which was ostensibly to meet an identified skills shortage for an Australian business for the 2 year duration of her visa.  The applicant advised the Tribunal that her long term objective was to remain in Australia with her husband and two children and establish a business in this country.  The Tribunal discussed with the applicant that the now obsolete 457 visa subclass was to enable Australian employers to sponsor an overseas applicant for a temporary visa in a position that the business required to be filled which could not be filled within the Australian labour market due to an identified skills shortage.  The evidence before the Tribunal indicates that since the time of the cessation of her employment the applicant has failed to find another sponsoring employer and the evidence indicates that the applicant ceased employment in October 2018 with the sponsoring employer and the period in which the applicant ceased employment has exceeded 60 consecutive days.

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

29. The Tribunal discussed with the applicant the extent of compliance with visa conditions. The evidence of the applicant was that she had complied with the conditions attached to her visas up until the cessation of her employment in October 2018. The Tribunal finds that the applicant’s failure to comply with condition 8107(3)(b) of her Subclass 457 visa was attributable to her advanced pregnancy, her late notification of this to her employer and the fact that her employer was not in the circumstances willing to provide the applicant with maternity leave.  The Tribunal gives some weight to this consideration in favour of not cancelling the visa.

30. The Tribunal discussed with the applicant at hearing the hardship that may be caused to her and her family as a consequence of the cancellation of her visa.  The applicant advised that she would like to remain in Australia and set up a business and that she would like her children to remain in Australia and that it would be difficult for her children to adapt to life in India.  In addition to this the applicant reiterated that up until the cessation of her employment in October 2018 she had complied with visa conditions and Australian law and she had paid her taxes.

31. As discussed extensively with the applicant during the course of the review hearing she has only ever held temporary visas.  She initially entered Australia as a secondary visa applicant under the umbrella of her husband’s student visa, which was a temporary visa, that had been granted to him to enable him to have an opportunity to study in Australia and to acquire new skills.  The applicant then applied for and was granted her first 457 visa which enabled her to work on a temporary basis for her first sponsor from 2013 until 2017.  Further to this that the visa that is the subject of this cancellation was granted, once again, on a temporary basis for a period of two years to enable the applicant to work for her sponsoring employer to plug a skill shortage in that business that was not able to be filled by an Australian worker.

1. The Tribunal notes that the grant of a Subclass 457 visa is temporary in nature for a finite period and that there may be a prospect beyond that visa of permanent residence, but this is not guaranteed. In the applicant’s case she was caught out by the abolition of the 457 visa subclass which took place in March 2018.  The Tribunal notes that the cancellation of the applicant’s visa for breach of condition 8107 as a consequence of the cessation of her employment in November 2018 has caused the applicant stress.  The Tribunal also notes that the cancellation of the applicant’s visa will mean that she and her family have to return to India.  However as discussed with the applicant both she and her husband have acquired new skills which should open up employment opportunities to them in India and their children are very young, with their son being in year 1 at primary school and their daughter being only 14 months old. Because of their young age the applicant’s children should be able to adapt to life in India upon their return and the applicant’s son should, due to his age, be able to integrate into the Indian school system.  The Tribunal gives this consideration some weight against visa cancellation.

2. With regard to the circumstances in which the ground for cancellation arose the Departmental delegate noted that the evidence before them indicated that the sponsoring employer had notified the Department that the applicant ceased employment in November 2018.  The evidence also indicates that the applicant, since the cessation of her employment with the sponsoring  business in October 2018 has failed to find another employer willing to sponsor her for employment in their business.  As discussed with the applicant at hearing the 457 visa regime came to an end on 18 March 2018 and thus the subclass ceases to exist.

3. The Tribunal notes that the circumstances in which the ground for cancellation arose were attributable to the fact that just prior to or around the time of the applicant’s employment with the sponsoring employer the applicant fell pregnant and she did not notify her employer of this until a month before her daughter was due.  Her employer was not in these circumstances willing to provide the applicant with maternity leave and the applicant ceased employment in October 2018.  The expectation for the applicant’s employer in March 2018 at the time of the grant of the visa was that the applicant would have been able to work for them in the nominated occupation for 2 years on a full time basis in order to meet a skills shortage that this business was experiencing.  Due to the pregnancy and the late disclosure of the pregnancy this did not occur.  The applicant had 60 days from the cessation of employment to find a new sponsoring employer and the evidence before the Tribunal indicates that as at the hearing date 17 March 2020 the applicant had not been able to successfully find a new sponsoring employer willing to take her on. The applicant would have been acutely aware of the conditions that applied to her Subclass 457 visa as she had held one previously from 2013 to 2017. The legislative regime envisages a period of 60 days after cessation of employment with the sponsoring employer and this does not provide an open-ended invitation to an applicant to find an alternate sponsor beyond that time. The Tribunal gives this consideration weight in favour of cancelling the applicant’s visa.

4. The evidence before the Tribunal indicates that the applicant’s past and present behaviour towards the Department has been cooperative and the Tribunal gives this consideration some weight against visa cancellation.

5. The Tribunal notes that there are 3 secondary visa applicants, the applicant’s husband, and two dependent children who would be affected by the consequential cancellation provisions under section 140 of the Migration Act. The Tribunal gives this consideration some weight against visa cancellation.

6. The Tribunal has had regard to the fact that the applicant and her family may be liable to be detained under section 189 of the Migration Act or indeed removed under section 198 of the Migration Act and that they will be subject to section 48 of the Migration Act limiting their options to apply for further visas to Australia. The Tribunal gives this consideration little weight against visa cancellation.

7. There is no evidence that has been provided to the Tribunal which would lead to the Tribunal finding that it would be in breach of Australia’s non-refoulement obligations if the applicant and her family were removed from Australia. The applicant and her family have returned to India a number of times since being in Australia.  The Tribunal has also had regard to the relevant international conventions and treaties pertaining to the rights of the child, to which Australia is a signatory.  The Tribunal notes the applicant’s children are both young, her son has just commenced year 1 in primary school and her daughter is only 14 months old.  The Tribunal finds that due to their respective ages they should be able to adapt to life in India upon their return and the applicant’s son would be able to adapt to the Indian primary school system.  The Tribunal gives these factors some weight in favour of visa cancellation.

8. The Tribunal has considered all of the relevant discretionary considerations both singularly and cumulatively. The Tribunal notes that the grant of a Subclass 457 visa leads to temporary residence for a period of up to 4 years to work for a sponsoring employer in Australia. The evidence indicates that less than 8 months into her two year visa, the applicant ,due to her advanced pregnancy, which she failed to disclose to her employer until a month before her daughter was due, ceased work with her employer and was not offered maternity leave by them to cover her absence. Indeed, the evidence of the applicant was that she had attempted to mitigate her absence from work by having her mother travel to Australia from India to assist in the care of her children, however this arrangement fell apart when the applicant’s mother became ill. The evidence before the Tribunal indicates that since October 2018 to date the applicant has failed to find an alternative sponsoring employer. As noted the legislation envisages in condition 8107(3) that if the holder ceases employment with the sponsoring employer (for any reason) the period which the applicant ceases employment must not exceed 60 consecutive days.  The evidence before the Tribunal indicates that in the 60 consecutive days since the cessation of her employment the applicant has not been able to seek alternate employment sponsorship.  The Tribunal having regard to the relevant discretionary considerations finds when those considerations are cumulatively considered that the applicant’s visa in the circumstances of this case should be cancelled.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   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.

    John Cipolla
    Senior Member