Gill (Migration)

[2019] AATA 4185

Gill (Migration) [2019] AATA 4185 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Pooja Gill
Mr Jiwan Kumar Khosla
Miss Jiya Khosla

CASE NUMBER:  1815996

HOME AFFAIRS REFERENCE(S):           BCC2017/2561321

MEMBER:Sheridan Lee

DATE:1 August 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 01 August 2019 at 2:00pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – sponsoring company liquidated – difficulty in securing new sponsorship – pregnancy with twins – took judicious steps to regularise migration status – 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 24 May 2018 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant failed to comply with visa condition 8107(3)(b) of her Subclass 457 visa. As it applies in this case, visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 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 applicant appeared before the Tribunal on 2 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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.

   Background

7. On 19 January 2016, the Department of Home Affairs granted a Subclass 457 visa to the applicant to work in the occupation of Cook, sponsored by Guraya Group Pty Ltd. The applicant was granted a Subclass 457 visa on the basis that she was sponsored by a standard business sponsor under cl.457.223(4) and was subject to mandatory condition 8107. Visa condition 8107(3)(b) required that if the applicant ceased employment, the period must not exceed 90 consecutive days.

8. The decision record of the delegate, which was provided to the Tribunal by the applicant, outlines that on 14 July 2017, Guraya Group Pty Ltd had its sponsorship approval cancelled and the company was barred from lodging new sponsorships for a 5 year period. On 18 July 2017, the Department wrote to notify the applicant of the sponsorship cancellation and advise that she must secure a new sponsor.

9. At the Tribunal hearing, the applicant advised that her boss, Gideon James, started a new business operating an Indian restaurant in Kilmore and lodged a new nomination application in respect of the applicant. However, she did not commenced work as she fell pregnant.

10. The applicant advised that the nomination application was refused by the Department and the subsequent appeal was dismissed by the Tribunal on the basis that her prospective employer did not attend the scheduled hearing. Departmental records confirm that a nomination application was lodged by Guraya’s the Flames Pty Ltd on 14 September 2017 and refused on 26 April 2018.

11. The applicant’s Subclass 457 visa was subsequently cancelled on 24 May 2018.

    Notification procedures

12. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[1] In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

    [1]     Section 119.

13. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[2]

    [2]     See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32].

14. On 11 May 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that she had ceased employment on or before 14 July 2017. As a result, the Department informed the applicant in the relevant notice that her Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because she may have breached condition 8107. The notice invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 17 May 2018.

15. Accordingly, I find that the applicant was given a notice of intention to consider cancellation in relation to her Subclass 457 visa as required under the legislation.

    Does the ground for cancellation exist?

16. 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 attached to the applicant’s visa. Specifically, subclause 8107(3) applies because the Department granted the applicant a subclass 457 visa on the basis that the applicant met the requirements of subclause 457.223(4).

17. Relevantly, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer. As outlined, condition 8107(3)(b) required that the applicant not cease employment for more than 90 consecutive days.

18. At the hearing, the applicant gave evidence that she ceased employment with her sponsor when the restaurant closed for renovation work to repair a leak in the ceiling. She believes that her employer then experienced some issues with the tax department and the company was liquidated. The applicant confirmed that she had not worked for her sponsoring employer since the restaurant closed in around February or March of 2016.

19. As such, 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), I must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. I have 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’.

21. I acknowledge that, whilst I may be guided by policy, I am not bound to follow it. 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.[3]

    [3]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168.

22. 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 and the oral evidence from the applicant at the hearing.

23. The policy outlines that the following matters should be taken into account, if relevant, when deciding whether to cancel a visa.

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

24. At the hearing, the applicant gave evidence that she first arrived in Australia on 2 May 2008 on a student visa. She completed Certificates III and IV in Hospitality and has been living in Australia continuously since that time. The applicant’s husband and three children also live in Australia.

25. The applicant’s husband has been working for AMA Transport and the family has been surviving on his wage. The applicant expressed a desire to remain in Australia so that her children can attend school here.

26. The applicant was issued a Subclass 457 visa on 19 January 2016 to enable her to remain in Australia and work for her sponsoring employer, Guraya Group, as a Cook. The applicant’s husband and eldest daughter are included as dependants on her Subclass 457 visa. Her younger daughters were born on 8 February 2019.

27. Prior to the cancellation of her visa, the applicant was offered a new position with a different sponsoring employer, operated by the same Director. However, on 26 April 2018 the Department refused the nomination application lodged for this purpose.

28. The applicant gave evidence that she has been actively seeking employment and intends to work in her nominated occupation until her Subclass 457 visa expires on 19 January 2020. She requested additional time to submit evidence that she has secured a new sponsoring employer, noting that she gave birth in February 2019 and was unable to work for a period. The Tribunal provided additional time, and on 15 July 2019, the applicant supplied the Tribunal with a letter confirming that a new nomination application has been lodged in respect of her by Indo Oz Pty Ltd on 12 July 2019. While the nomination is not guaranteed to be approved, the applicant has demonstrated her willingness to continue working in her nominated occupation and that she has an employer willing to sponsor her.

29. The Tribunal finds that this weighs against exercising the discretion to cancel the visa.

    The extent of compliance with visa conditions and the visa holder’s past and present behaviour towards the Department

30. The Tribunal accepts that the applicant has not previously breached any visa conditions. There is also no evidence to suggest that the applicant has a history of difficulties, or lack of co-operation with the Department.

31. At the hearing, the applicant confirmed that she has had no other compliance issues with the Department since arriving in Australia in 2008. This weighs against exercising the discretion to cancel the visa.

    The degree of hardship that may be caused to the visa holder and any family members

32. As outlined, the applicant has a husband and three children residing in Australia. The family are dependants on the applicant’s Subclass 457 visa and as such, their visas would be subject to consequential cancellations under s.140 of the Act.

33. The applicant’s eldest daughter was eight years old at the time of the hearing. She has undertaken all of her schooling in Australia to date. The applicant gave evidence that it would be difficult for the family to start again in India after more than ten years in Australia. In particular she noted that they would not be in a position to earn comparable wages to those that they can earn in Australia. The applicant gave evidence that she owes money to the Royal Women’s Hospital for expenses incurred during her pregnancy with twins.

34. The applicant’s in-laws live in India and cared for the couple’s first child for four years while she was completing her studies. However, the applicant gave evidence that they are getting old now and her father in law recently suffered a stroke.

35. The Tribunal accepts that it would be difficult for the family to return to India both financially and emotionally. However, neither the applicant nor her husband would be precluded from working. Further, the applicant now has the benefit of completing qualifications and work experience in Australia. While it may be upsetting for the family to depart Australia, particularly after living here for more than 10 years with aspirations to remain permanently, the Tribunal finds that the cancellation of the subclass 457 visa will not result in any significant hardship to the applicant or her family. The Tribunal notes that the applicant has no financial commitments related to her housing in Australia, and she has family in India. Members of the family would not be barred from applying to visit Australia again from offshore. In particular, the Tribunal notes that the applicant held a temporary visa with no guarantee that she could remain in Australia on the expiration of the visa.

36. The Tribunal finds that this factor does not weigh against exercising the discretion to cancel the visa.

    The circumstances in which the ground for cancellation arose

37. The policy suggests the Tribunal should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

38. As outlined, the applicant gave evidence that she ceased working for her sponsoring employer when the restaurant closed for repairs and the company was subsequently liquidated. The applicant was then offered another position as a Cook in an Indian restaurant in Kilmore, operated by the same Director. The nomination application was refused and then the applicant’s Subclass 457 visa was cancelled.

39. The Tribunal accepts that the circumstances surrounding the closing of the company were outside her control and responsibilities. The Tribunal also accepts that the applicant would have a difficult time securing a new sponsoring employer while she was pregnant or shortly after the birth of her twin daughters.

40. The period for time that has elapsed since the applicant ceased working is significant. Nevertheless, she has found a new employer that has demonstrated a willingness to sponsor her for the remainder of her Subclass 457 visa. The Tribunal considers that the applicant took judicious steps, within a reasonably short timeframe, in an attempt to regularise her migration status in Australia.

41. The Tribunal finds that this weighs against exercising the discretion to cancel the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision

42. The Tribunal acknowledges that upon the cancellation of her visa, the applicant would become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s198 if she does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of her visa.

43. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new visa from overseas.

    Australia's international obligations

44. 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).  

45. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.

46. Therefore, the Tribunal is satisfied that there is little in these matters to support the exercise of the discretion in the applicant’s favour.

47. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

48. 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.

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

    Sheridan Lee
    Member