Deol (Migration)

[2019] AATA 1621

Deol (Migration) [2019] AATA 1621 (14 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurpal Kaur Deol
Mr Pargat Singh
Miss Amanat Kaur

CASE NUMBER:  1724539

HOME AFFAIRS REFERENCE(S):           BCC2017/2997855 OPF2017/194

MEMBER:Antonio Dronjic

DATE:14 January 2019

PLACE OF DECISION:  Melbourne

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 14 January 2019 at 9:54am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Transport Company Manager – applicant performed tasks outside position definition – tasks akin to Truck Driver – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 348
Migration Regulations 1994 (Cth), r 2.12, condition 8107, Public Interest Criterion 4013

CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Rani & Ors v MIMA (1997) 80 FCR 379
Re Drake (No. 2) (1978-1980) 2 ALD 634
Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492
Tien & Ors v MIMA (1998) 89 FCR 80
Visnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 October 2017 made by a delegate of the Minister for Immigration and Border Protection 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) of the Act. The delegate found that the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, namely as a transport company manager, but has carried out work as a truck driver. The delegate found that the applicant had breached condition 8107 which is attached to the applicant’s visa by specifically breaching paragraph 8107(3)(a)(i).

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.

   Background to the cancellation of the applicant’s visa

4. The primary decision record of 9 October 2017, provided by the applicant to the Tribunal with the review application sets out the reasons for the delegates’ decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 24 October 2014, the applicant was granted a Subclass 457 Business (Long Stay) visa for the period of four years;

   ·The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa (24 October 2014) was Kamadheema Transport Pty Ltd. The occupation listed for the applicant in the most recently approved nomination was transport company manager;

   ·In a telephone interview with Departmental officers held on 7 February 2017, Mr Sekhton, the owner of the sponsoring business, stated that the nominee, Ms Deol drove truck for the sponsoring business between one to five days per week depending on the business need;

   ·In a telephone interview with Departmental officers held on 10 February 2017, Ms Deol stated that for the past few months she has been driving a truck three to four days per week. She claims that she drove the truck outside business hours believing that she needed to assist her employer as he was suffering from health issues.

   ·A notice of intention to consider cancellation (NOICC) was issued 12 September 2017;

   ·On 14 September 2017, the applicant responded in writing to the NOICC and a copy of her written response was reproduced in the primary decision record;

   ·On 9 October 2017, the delegate proceeded to cancel the applicant’s visa.

5. The applicants applied to the Tribunal on 10 October 2017 for review of the visa cancellation and with the application submitted a copy of the primary decision record.

6. On 22 November 2018, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing scheduled for 10 January 2019.

7. On 8 January 2019, the applicant wrote to the Tribunal conceding that on several occasions she drove the company truck in emergency situations when the owner of the company was unable to do so because of his health issues; that she drove the truck in the period between 11 January 2017 and 7 February 2017; that neither the owner of the business nor she knew that she was not supposed to drive the truck; that driving the truck was not her primary duty; that she drove the truck outside business hours; that her visa already expired and that she is asking the Tribunal not to cancel her Subclass 457 visa so that ‘her corresponding bridging visa “A” could be revoked’.

8. The applicant further stated in her submissions that the ‘situation was beyond her control and the circumstances were indeed compelling’ and that cancellation of her visa will cause a significant hardship to her and her family. She stated that, as a holder of a Bridging visa ‘E’ she was unable to travel to India to attend the funeral of her grandmother or two family weddings. She stated that she applied for a regionally sponsored permanent visa (RSMS) and is still waiting for the outcome of that application. She claims that she has an exemplary immigration history in Australia and that she has been co-operative with the Department.

9. The applicant appeared before the Tribunal on 10 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent who did not attend the hearing.

10. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the hearing. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicants. The Tribunal informed the applicant that her visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that she had not complied with the condition imposed on her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(a)(i) that the visa holder must work only in the occupation that was listed in the most recently approved nomination.

11. The Tribunal further explained to the applicant that, if satisfied that a ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

12. The applicant is 31 years of age and a national of India. She is married and has a child who is four years of age. In India, the applicant completed the equivalent of year 12, two years of a Bachelor of Arts course and did not work. Her three siblings and parents live in India. Her husband has completed the equivalent of year 12 and worked at the family farm prior to arriving in Australia. She gave evidence that her first cousin, who is not an Australian Citizen or permanent resident, lives in Adelaide and that her husband’s first cousin, who lives in Canberra, is an Australian permanent resident.

13. She first arrived in Australia in March 2009 as a holder of a Student visa. By 2013, she completed a Diploma in Hospitality Management (which included commercial cookery qualifications), a Certificate IV in Business and a Diploma in Management. From 2009 to 2013, she worked on a part time basis at a nursing home in Werribee.

14. She commenced her employment at the sponsoring business at the beginning of February 2015. Her husband worked as a truck driver for the same business from 2015 until 2017.

15. Her visa was granted on 24 October 2014 while she was in India. She confirmed that she received a visa grant letter from the Department which contained the explanation of the conditions imposed on her visa. Her nominated occupation was transport company manager. She reiterated that neither she nor her employer fully understood that she was not allowed to drive trucks for the sponsoring business.

16. She gave evidence that she drove the company truck on eight to ten occasions only. She confirmed that she had a telephone interview with the Department in February 2017 and that during the interview she stated that she drove the truck three to four times per week. She explained that this happened only in January or February 2017. She gave evidence that she obtained a heavy vehicle drivers licence in 2016 because she needed to move trucks from one place to another and was asked to do so by her employer.

17. The applicant gave evidence that in November 2017, she moved to Adelaide where she currently resides together with her husband, child and the first cousin. She is, and has been employed as a full time cook at a restaurant. Her husband works as a truck driver. In July 2017, she applied for a permanent visa (RSMS) based on the nomination made by her current employer. Her nominated occupation is cook.

18. I explained to the applicant that, based on the evidence before me, I am satisfied that the ground for cancellation in s.116 (1)(b) is made up and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

19. I indicated that I will take into consideration the evidence given at the hearing as well as submissions provided in support of the application. I asked the applicant if there is anything else that she wants to raise with the Tribunal.

20. She stated that her family will suffer a significant hardship because, as holders of a Bridging visa ‘E’ they are unable to travel to India to attend the funeral of her grandmother or family weddings; that she has limited options as a holder of a Bridging visa ‘E’; that she and her family are still waiting for the outcome of their permanent visa application; that her daughter’s life will be better in Australia; that she did not do anything wrong and was only helping her employer.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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?

23. 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 was attached to the applicant’s visa.

24. This condition, inter alia requires that the applicant must work only in the occupation listed in the most recently approved nomination for the holder. In this matter, the applicant was nominated to work as a transport company manager and the associated business nomination was approved by the Department on 24 October 2014.

25. Based on the evidence before it, including the oral evidence from the applicant, her written submissions of 8 January 2019 and the investigation conducted by the Department as recorded in the primary decision record, I am satisfied that, at least on eight to ten occasions, the applicant worked for the sponsoring business as a truck driver.

26. Based on this finding, I am satisfied that the applicant was in breach of condition 8107, specifically condition 8107(3)(a)(i), of her visa. I am therefore satisfied that the ground for cancellation exists under s.116 (1)(b).

27. As this ground does not require mandatory cancellation under s.116 (3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

28. There are no matters specified in the Act or Migration Regulations 1994 ( the 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’.

29. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] 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. Indeed, there is 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 an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 at [55]

30. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    The purpose of the visa holder’s travel to and stay in Australia

31. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Kamadheema Transport Pty Ltd as a transport company manager on a temporary basis.

32. The occupation of a transport company manager was one of a limited number of occupations listed by the Minister as an occupation that can form the basis of an approved nomination. The occupation of a truck driver predominantly involves responsibility for low-skilled tasks and is not on the list of occupations specified by the Minister.

33. After her visa was cancelled, the applicant ceased employment at the sponsoring business and in November 2017 moved to Adelaide where she commenced full time employment as a cook.  The applicant’s Subclass 457 visa would have, but for the cancellation, ceased on 24 October 2018 in any case.

34. As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists. I give significant weight to this consideration.

    The reason for and extent of the breach

35. The applicant’s visa was subject to condition 8107. I am satisfied on the evidence before me that the applicant was aware of the condition imposed on her Subclass 457 visa.

36. The applicant conceded in her evidence that, after she was granted a Subclass 457 visa and nominated to work as a transport company manager, she drove the truck for the sponsoring business on eight to ten occasions. In her evidence she stated that she drove the truck on the request of her employer. She stated that she wanted to help her employer who, at the time, was affected by health issues and a shortage of truck drivers.

37. I consider the non-compliance to be significant, as the temporary business entry scheme is predicated upon a visa holder being employed by an approved business sponsor in an approved nominated position.

    Circumstances in which ground of cancellation arose

38. I find that the circumstances in which the ground for cancellation arose under s.116(1)(b) ( breach of condition 8107) were brought about by the applicant, and were not beyond her control.

39. I acknowledge that the applicant felt compelled to follow her employer’s directions. However, in her written submissions of 8 January 2019, she stated that neither she nor her employer knew that she was not supposed to drive the truck.

    Past and present conduct of the visa holder towards the department

40. There is no evidence before me that the applicant previously breached visa conditions. I am satisfied that she has been co-operative with the Department.

    Degree of hardship that may be caused;

41. The applicant claims that the visa cancellation will cause a significant hardship to her and her family because they are unable to travel to India; that she has limited options as a holder of a Bridging visa ‘E’; that she and her family are still waiting for the outcome of their permanent visa application; that her daughter’s life will be better in Australia; that she did not do anything wrong and was only helping her employer.

42. I have taken into consideration the applicant’s evidence that in India, she had completed the equivalent of year 12 and two years of the Bachelor of Arts course and that her siblings and parents live in India. I accept that the applicant and her family have established ties to the Australian community. Considering her family composition, formal education completed in India and Australia and her work experience gained in Australia, I am satisfied that the applicant and her family will be able to re-establish themselves in India.

43. Balanced against any potential hardship to the applicant and her family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years. I acknowledge that the applicant applied for an Australian permanent visa in July 2017 and that the decision is still pending at the Department.

44. I am satisfied that the applicant is not prevented by public interest criterion 4013 from re-applying for a temporary work visa once she finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

    Whether there are mandatory legal consequences, such as whether cancellation would
    result in the visa holder being unlawful and subject 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

1. The applicant is currently on a Bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow her to remain in Australia. If that is the case she has the opportunity to depart Australia. Whilst her failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

2. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

   Whether there would be consequential cancellations under s.140

3. Whilst the applicant’s husband’s and daughter’s visas were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from her husband and daughter.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

4. 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).  

5. Based on the evidence before me, I am not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

   The impact on any victims of family violence

6. There is no evidence before the Tribunal regarding this matter.

7. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

   DECISION

8. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

   Antonio Dronjic
   Member