Heer (Migration)

[2020] AATA 4611

Heer (Migration) [2020] AATA 4611 (25 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rajinder Singh Heer
Mrs Sandeep Kaur
Master Jeremiah Heer

CASE NUMBER:  2000782

HOME AFFAIRS REFERENCE(S):          BCC2018/4032161

MEMBER:Andrew McLean Williams

DATE:25 August 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first-named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

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

Statement made on 25 August 2020 at 1:01pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – non-commencement of employment within the prescribed period – business ceased to operate – Department not notified – consideration of discretion – purpose of visa not fulfilled – working outside approved conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 137Q, 137T, 348

Migration Regulations 1994 (Cth), r 2.50AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 January 2020 to cancel the first-named applicant’s Subclass 187 Regional Sponsored Migration Scheme visa, under s.137Q of the Migration Act 1958 (‘the Act’).

2. The delegate cancelled the visa on the basis that the applicant never commenced his employment in the approved position, which was as a Retail Manager (General) (ANZSCO 142 111), with LVR Management Pty Ltd.  The nomination of that position by LVR Management Pty Ltd had been made in order for the first-named applicant to manage a service station, located at Tenterfield, New South Wales.  This position was approved by a delegate of the Minister on 13 April 2016. 

3. In May 2016 LVR Management Pty Ltd surrendered the lease of the service station at Tenterfield and that business ceased to operate.  The Applicant’s Subclass 187 visa was then granted approval by a delegate of the Minister on 29 September 2016, being a date that is clearly well after that when the nominated position connected with the Subclass 187 visa had ceased to exist.  That fact was not however notified to the department by either the applicant or LVR Management Pty Ltd until as recently as 18 December 2019, when the department became aware of that after conducting a routine audit.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to the first-named applicant (‘the applicant’). The other visa, as held by Mrs Sandeep Kaur as a family member of the applicant was automatically cancelled, as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to Mrs Kaur. Similarly, no cancellation decision has been made by the department in respect of Jeremiah Heer.

6. The applicant appeared before the Tribunal on 25 August 2020 by telephone to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent Mr Harish Prasad, of Harish Prasad & Associates (MARN 9367537).  Mr Prasad was afforded the opportunity to make oral submissions to the Tribunal at the conclusion of the applicant’s evidence.

7. 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

8. Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

   Does the ground for cancellation exist?

9. Under s.137Q(1), the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in r.2.50AA. The applicant was required to take up the approved position within six (6) months from the date of his obtaining the Subclass 187 visa.

10. Mr Rajinder Singh Heer concedes that he did not commence employment in the nominated and approved position, by reason that the position had ceased to exist even before he was able to commence working in theposition. Mr Heer further concedes that the nominated position is connected to his Subclass 187 visa. For these reasons, the Tribunal is satisfied that the relevant ground for cancellation in s.137Q(1) does exist.

11. As the power to cancel under s.137Q is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.

    Should the visa be cancelled?

12. There are no matters specified in the Act or Regulations that must be considered in relation to 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: Act - Visa cancellation instructions - Regional sponsored employment visas’.

13. The applicant is 44 years of age, and has been a citizen of Canada since 2000.  The applicant has been married to Mrs Sandeep Kaur since 2015, and they have one child, a boy aged 13 months named Jeremiah.  Mrs Kaur has Indian citizenship.  Jeremiah was born in Sydney. 

14. The applicant informed the Tribunal that all of his family reside in Canada, with the exception of one sister, who lives in Australia.  The applicant further informed the Tribunal that he is currently residing in Schofields, New South Wales and is working as a truck driver for ‘Lovely Transport’, and that his wife is engaged in home duties and has responsibility for the full-time care of their son Jeremiah.

15. The legitimate purpose for the applicant remaining in Australia was to work as a Retail Manager for LVR Management Pty Ltd.  The applicant is not doing that, and has never done that, in circumstances wherein it was always a condition of his Subclass 187 visa that he commence the approved employment within six months after the grant of his visa.  Nor has the applicant made any effort to notify the department regarding his change in circumstances.  Instead, the applicant is working as a truck driver for another employer.  In so doing, the applicant is working outside the approved conditions that attach to his Subclass 187 visa, and is therefore currently working in Australia unlawfully.  These are significant considerations that weigh against the applicant, notwithstanding that the original failure to take up the approved employment position arose in circumstances that can be regarded as beyond the applicant’s control.

16. The applicant submits that he and his family will suffer from hardship, in the event that the power of visa cancellation is now exercised.  When asked to describe that hardship, the applicant submits that he would be required to return to Canada, and his wife would be required to return to India, and submits that their infant son “may be rendered stateless”.  The applicant further submits that he and his wife “like it here in Australia”, and that his sister wants them to stay, because she will be lonely, in the event that they leave the country. 

17. Yet, the Tribunal concludes that none of the expressed matters going towards hardship are able to be regarded as factors that enliven objective grounds of hardship.  The applicant is a citizen of Canada, with all of the rights of citizenship in that country, and is a person who has strong family connections in Toronto; and a prior employment history in Canada.  The applicant also has the option to now apply for a spousal visa for his wife in Canada. 

18. The applicant also submits that international travel is difficult due to Covid-19 and that affords grounds of hardship.  The Tribunal determines that the fact that international travel is made more difficult by Coivid-19 is not - in and of itself - a matter that sounds in hardship.  In relation to those concerns expressed  by the applicant for his infant son, the Tribunal notes that the fact of Jeremiah having been born in Australia does not automatically entitle Jeremiah to Australian citizenship, and the applicant and his wife now have the option of either Indian or Canadian citizenship for Jeremiah.  Ultimately, the best interests of Jeremiah as an infant child is a matter that is served by his remaining with his mother and father, wherever in the world that might be.  That latter fact was conceded by the applicant. 

19. Beyond broadly described inconvenience, no effort was made by the applicant to describe specific aspects of financial, psychological, or emotional hardship that might be caused, either to himself or to the other members of his family, in the event that the cancellation discretion were to be exercised.  The Tribunal notes the fact that the applicant had the benefit of professional representation before the Tribunal.  

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

    DECISION

21. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

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

    Andrew McLean Williams

    
    

    Member