Garach (Migration)

[2018] AATA 5825

Garach (Migration) [2018] AATA 5825 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mahima Rajendrakumar Garach
Mr Niravkumar Anilkumar Brahmbhatt

CASE NUMBER:  1715773

HOME AFFAIRS REFERENCE(S):           BCC2017/1810180

MEMBER:Antonio Dronjic

DATE:17 December 2018

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 second named applicant.

Statement made on 17 December 2018 at 1:37pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Accountant – applicant ceased employment with sponsor – period applicant ceased employment exceeded 90 days – failed to commence employment with new sponsor after more than two years – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994, r 2.12, Schedule 4, PIC 4013, Schedule 8, Condition 8107

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 18 July 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) on the basis that the applicant breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 90 consecutive days. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 named applicant.

   Background to the cancellation of the applicant’s visa

4. The decision record of 18 July 2017 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 4 June 2016, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 4 June 2019;

   ·The standard business sponsor who nominated the applicant to work as an accountant was Maral Modi Accountants Pty Ltd;

   ·On 13 January 2017 the sponsor informed the Department that the applicant ceased her employment with the sponsoring business;

   ·A notice of intention to consider cancellation (NOICC) was issued 26 June 2017;

   ·On 30 June 2017, the applicant responded in writing to NOICC;

   ·On 18 July 2017, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 20 July 2017 for review of the visa cancellation and with her application submitted a copy of the primary decision record. On 20 November 2018, the Tribunal wrote to the applicant 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 applicant to give oral evidence and present arguments at a hearing scheduled for 17 December 2018.

6. The applicant appeared before the Tribunal on 17 December 2018 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.

7. At the commencement of the hearing, the applicant submitted:

   ·Medical certificates from 10 April 2016 as evidence of the applicant’s medical issues at that time; and

   ·Copy e-mail sent by the applicant to her employer dated 5 August 2016 requesting a leave without pay from 8 to 19 August 20016.

8. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. 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 of her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained that the applicant’s husband’s visa was automatically cancelled by operation of s.140(1) of the Act which made the cancellation of his visa self-executing on the cancellation of her visa. The Tribunal further explained to the applicant that, if satisfied that the 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.

9. The applicant is 32 years of age and a married national of India. She is pregnant and the expected delivery day is in February 2019. In India, the applicant has completed a Masters of Commerce (Accounting) and worked as an accounting assistant for a period of two years. Two of her three siblings live in India. Her sister, who is a New Zealand Citizen, lives in Sydney. Both of her parents passed away. She first came to Australia in September 2009 as a holder of a Student visa. By 2016, she has completed several management courses in Australia. She was a holder of a Subclass 485 visa from March 2013 until September 2014 during which time she worked for AMEX.

10. The applicant’s husband is also from India where he completed a Bachelor of Commerce degree and worked in marketing. His parents and brother live in India. He has been working in Australia since 2017 as a spare parts coordinator.

11. On 4 June 2016, the applicant was granted a Subclass 457 visa based on the sponsorship and nomination by an Australian business Maral Modi Accountants Pty Ltd. She commenced employment at this business in July 2017. Her nominated occupation was an accountant and her annual wages were set to be $60,000 per annum. She gave evidence that she worked at the sponsoring business for approximately one month. She was told by her employer not to come back to work. She claims that she never received written notification from her employer that her employment as terminated. She stated that her employer told her that she will be called back to work when the situation improves at the sponsoring business. She gave evidence that she did not re-commence employment at Maral Modi Accountants Pty Ltd.

12. Her visa was cancelled by the Department on 18 July 2017. Soon after she obtained ‘work rights’ and in November 2017 she commenced employment at ANZ Bank’s collection department which remains her current employer. I enquired as to whether the ANZ Bank sponsored and nominated her for a temporary business visa and the applicant stated that it did not.

13. She gave evidence that she tried her best to find a new employer willing to sponsor and nominate her for a temporary business visa but was not successful.

14. I enquired as to whether she applied for any other visa and the applicant stated that in January 2018 she submitted an expression of interest for Subclass 190 and Subclass 189 visas but to date she did not received an invitation to apply from the Department.

15. I explained to the applicant that, based on the evidence before me, I am satisfied that she breached the condition 8107 that was imposed on her subclass 457 visa as the period during which the applicant ceased employment exceeded 90 consecutive days and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

16. I invited the applicant to state if there any matters she wants me to take into account in considering whether the visa should be cancelled.

17. She stated that her former employer, Maral Modi Accountants Pty Ltd, never informed her in writing of termination of her contract; that she tried to find alternate sponsoring business but was not successful and that, because of her late pregnancy, she will not be able to travel back to India on a plane.

18. 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

19. 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?

20. 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. The condition 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant's visa, which was granted on 4 June 2016 and which, but for its cancellation, was valid to 4 June 2019.

21. Based on the evidence before it, including the oral evidence from the applicant, I find that the applicant ceased employment with the sponsoring business in August 2016 and that the Department received notification from the applicant’s employer that she ceased her employment on 3 January 2017. I further find that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly I find that the applicant did not comply with condition 8107(3)(b).

22. For these reasons, I am 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

23. 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’.

24. 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]

25. 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

26. 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 Maral Modi Accountants Pty Ltd as an accountant on a temporary basis. The applicant was unfortunate to lose her job in August 2016. She decided to remain in Australia and try to find a new employer. Despite of her efforts, she was not successful.

27. Based on the evidence before me, I am satisfied that, as of the day of my decision, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.

28. 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 as the applicant ceased working for her sponsor in August 2016.  I give significant weight to this consideration.

    The reason for and extent of the breach

29. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in August 2016. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of her visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor and which successfully nominated the applicant to work at the business.

30. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after more than two years since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

31. The applicant ceased her employment at the sponsoring business in August 2016. The department did not proceed with the visa cancellation until July 2017. I am satisfied on the evidence before me that the Department afforded the applicant sufficient time to secure the employment in Australia with an alternative business sponsor.

32. Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond her control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

    Past and present conduct of the visa holder towards the department

33. There is no other evidence before me that the applicant previously breached visa conditions or that she was not co-operative with the Department.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

34. I have taken into consideration the applicant’s evidence that in India, she has completed a Masters of Commerce (Accounting) and worked as an accounting assistant for a period of two years. Two of her three siblings live in India and one in Australia.

35. I have taken into consideration that the applicant’s husband completed a Bachelor of Commerce degree in India and worked in marketing. His parents and brother live in India.

36. I accept that the applicant has been living in Australia since September 2008 and that both she and her husband 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 do not accept the applicant’s claim that she will not be able to re-establish herself in India.

37. 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.

38. In any event, the applicant is not prevented 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. I am satisfied that the applicant is not prevented by PIC 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

39. 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.

40. The Tribunal is mindful that Section 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 section 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

41. Whilst the applicant’s husband’s visa was 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.

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

42. 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).  

1. 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

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

   Any other matter raised by the applicant

3. The applicant stated that she will not be able to travel to India because of her late pregnancy. The applicant should seek an advice from the Department concerning this issue which I do not find to be relevant in considering the exercise of its discretion.

4. 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

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

6. The Tribunal has no jurisdiction with respect to the second named applicant.

   Antonio Dronjic
   Member