Gelal (Migration)

[2019] AATA 892

Gelal (Migration) [2019] AATA 892 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Narbada Kumari Gelal
Mr Santosh Kumar Ghimire
Ms Ayushma Ghimire
Mr Ayusan G Ghimire

CASE NUMBER:  1723688

HOME AFFAIRS REFERENCE(S):           BCC2017/2751008

MEMBER:Amanda Mendes Da Costa

DATE:6 February 2019

PLACE OF DECISION:  Melbourne

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 06 February 2019 at 8:52am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment for more than 90 days – consideration of discretion – circumstances giving rise to ground for cancellation – maternity leave – secured employment with a new standard business sponsor – pending nomination application – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), 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 25 September 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 ceased employment with her sponsor Merwans Pies Pty Ltd and remained in breach of visa condition 8107 of her visa for in excess of 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 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 applicants appeared before the Tribunal on 30 January 2019 to give evidence and present arguments.

5. 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

6. 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?

7. 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 visa of the first named applicant (the applicant). This condition requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

8. The standard business sponsor who nominated the applicant in the most recently approved nomination was Merwans Pies Pty Ltd (the sponsor) whose nomination was approved for the applicant to be employed in the position of Pastry Cook ANZSCO 351112.

9. On 1 October 2014 the applicant was granted a Subclass 457 visa.

10. On 28 April 2017 the sponsor sent an email to the Department advising that the business had changed ownership from 18 April 2017 and that the company Merwans Pies Pty Ltd would no longer be in existence and therefore could no longer sponsor the applicant.

11. On 5 September 2017 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of her visa. The applicant was invited to provide a written response regarding the NOICC. On 11 September 2017 the applicant sought further time in which to make such a response and advised as follows:

    Unfortunately, I didn’t get any formal response from my employer as I was on the leave to deliver baby. I delivered baby with emergency caesarean on 24 July. I am recovering with those complications slowly.

    I would like to request you give me some more time to figure out the situation and find the best option available.

12. On 12 September 2017 the Department gave the applicant a five working day extension in which to provide a written response to the NOICC.

13. The applicant did not provide any further response and her visa was cancelled on 25 September 2017.

14. The applicant told the Tribunal that she commenced employment with the sponsor in 2012 on a part-time basis as a pastry cook, whilst she was undertaking her studies. In 2014 the applicant’s Subclass 457 visa was granted and she commenced full-time employment with the sponsor in the same role.

15. With the support of the sponsor, the applicant lodged an application for a Subclass 186 visa on 14 December 2016.

16. In April 2017 the applicant took maternity leave from the sponsor when she was six months pregnant with her second child. She told the Tribunal that she understood from the sponsor that she would be able to return to her work a couple of months after the birth of her child. The applicant received a final wages payment from the sponsor in May 2017.

17. On 24 July 2017 the applicant gave birth to her son by emergency caesarean section.

18. The applicant told the Tribunal that she was not advised by the sponsor that her employment had been terminated and that she only discovered this when she received the NOICC from the Department. Due to complications following the birth of her son, it took her many weeks for her to recover and she was not able to seek further employment until late 2017.

19. The applicant said that when she received the NOICC she sought advice from staff at the office of the Fair Work Ombudsman and telephoned and emailed the sponsor, the latter yielding no reply. The applicant subsequently obtained employment as a pastry cook with a catering company in Dandenong in November 2017. She remained in this employment for six to seven months.

20. In October 2018 the applicant and her husband obtained full-time employment with Asterix Et Falbala Pty Ltd, trading as Milawa Bread in Milawa, Victoria. They are each employed as pastry cooks in a business which produces artisan bread and cakes for other retail businesses. The applicant and her family have relocated to Wangaratta where they are now living and the applicant’s daughter is attending a local primary school.

21. The Tribunal has been provided with two payslips for the applicant for the period 9 January 2019 to 15 January 2019 and 16 January 2019 to 22 January 2019. These payslips relate to the applicant’s current employment with Milawa Bread. The Tribunal has been further provided with an employment agreement between Asterix Et Falbala Pty Ltd and the applicant, dated 23 January 2019. This employment agreement is for a permanent full-time position of pastry cook.

22. The applicant has also provided the Tribunal with a letter dated 29 January 2019 from the Department, acknowledging receipt of a nomination application by Asterix Et Falbala Pty Ltd for a position of Pastry Cook for the applicant.

23. On the basis of the evidence before it, the Tribunal is satisfied that the applicant has obtained further full-time employment with a standard business sponsor who has made a nomination application for the applicant, for the position of pastry cook, the applicant’s nominated skilled occupation.

24. The Tribunal is satisfied that the grounds for cancellation of the applicant’s visa under s.116(1)(b) existed as outlined in the NOICC dated 5 September 2017 and sent to the applicant by the Department. The grounds for cancellation set out in the NOICC were that more than 90 consecutive days had expired after her employment with her sponsor ceased and she remained in breach of condition 8107 of her visa.

25. The Tribunal notes the differences in the oral evidence of the applicant and the sponsor’s email to the Department regarding the circumstances in which the applicant’s employment was terminated. On the basis of the sponsor’s email to the Department and the fact that the applicant’s wages ceased on 18 April 2017, the Tribunal is satisfied that her employment ceased on that date, even if the applicant initially considered she was in a position to return to work for the employer after the birth of her child.

26. 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

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

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

28. The applicant travelled to Australia in 2009 for the purpose of study. Whilst completing her studies as a pastry cook, she was employed by the sponsor on a part-time basis. On completion of her studies, she was granted the Subclass 457 visa and commenced full-time employment with the sponsor. The applicant has obtained full-time employment with a new employer situated in Milawa, Victoria.

    The extent of compliance with visa conditions

29. Apart from the applicant’s non-compliance with condition 8107 of her visa, there are no known instances of non-compliance with visa conditions.

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

30. The applicant told the Tribunal that she had not made any plans for her family’s return to Nepal if the review application was not successful. The Tribunal accepts that after 10 years in Australia it would be challenging for the applicants to leave Australia and find accommodation and employment in India. The Tribunal notes that the third named applicant (now aged 11 years) arrived in Australia as an infant and has undertaken all of her education in Australia. The Tribunal accepts that it would be difficult for the third named applicant to adjust to a different educational system, particularly given that she is approaching her secondary education in the next 12 months.

    Circumstances in which the ground of cancellation arose

31. The Tribunal accepts that prior to the cancellation of her visa, the applicant was employed in her nominated skilled occupation of pastry cook by Merwans Pies Pty Ltd, which was a standard business sponsor and had an approved nomination for the applicant. The applicant’s employment was terminated by the sponsor on 18 April 2017 and she did not return to such employment for in excess of 90 consecutive days, which was in breach of condition 8107 of her visa. The Tribunal is satisfied that the decision to terminate the applicant’s employment was made by the sponsor when the applicant went on maternity leave in April 2017.

32. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia temporarily for a period of four years. The purpose of the applicant’s visa was to enable her to be employed in Australia as a pastry cook for her sponsor Merwans Pies Pty Ltd. That employment is no longer available to the applicant although the Tribunal accepts that the applicant has found further employment with a new sponsor which has made a nomination application for the applicant and has offered her a full time position as a Pastry Cook, which is her nominated occupation for the purpose of her current visa.

    Past and present behaviour of the visa holder towards the Department

33. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

34. The Tribunal accepts that the second, third and fourth named applicants would be subject to consequential cancellation under s.140 of the Act.

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

35. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely because as an Indian citizen she will be able to return to India. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she may be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.

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

36. The applicant has submitted that it is in the best interests of her children and particularly her daughter to remain in Australia and continue her education here. The Tribunal notes that the Department’s Procedures Advice Manual 3 (PAM 3) provides that if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, a decision maker is obliged to treat as a primary consideration the best interests of the children. Accordingly the Tribunal has treated the interests of the applicant’s daughter and son as a primary consideration in making its decision and accepts that it is in their best interests that their mother’s visa not be cancelled.

37. Considering the circumstances as a whole and particularly the applicant’s family circumstances and the fact that she has secured further employment with an employer who is prepared to sponsor her in her nominated occupation, the Tribunal concludes that the visa should not be cancelled.

    DECISION

38. 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.

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

    Amanda Mendes Da Costa
    Member