JASBIR KAUR (Migration)

JASBIR KAUR (Migration) [2019] AATA 2894 (21 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs JASBIR KAUR
Mr HARBHAJAN SINGH
Miss HARSIMRAN KAUR
Miss HARSIRAT KAUR
CASE NUMBER:  1822608
HOME AFFAIRS REFERENCE(S):           BCC2018/2151397
MEMBER:Peter Emmerton
DATE:21 February 2019
PLACE OF DECISION:  Adelaide
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 21 February 2019 at 12:46pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment with the sponsor over 90 days – no new sponsor within the prescribed time period – sponsoring business ceased operating – applicant sought alternative visas – financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198, 348
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8; Condition 8107; r 2.43
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

This is an application for review of a decision dated 31 July 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that Ms Kaur had breached 8107(3)(b) as she had ceased employment with her sponsor for a period exceeding 90 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.
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.
The applicants appeared before the Tribunal on 21 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nardeep Sharima.
The applicants were represented in relation to the review by their registered migration agent.
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
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?
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(3)(b) attached to the applicant’s visa. This condition requires that if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 days.
Following the provision of information by the department and the applicant prior to the hearing and the applicant at the hearing, the Tribunal has formed a view that the visa holder ceased employment on 1 February 2018 and at the time of the delegate’s decision on 31 July 2018 had not recommenced employment. The applicant stated at the hearing that she recommenced employment on 11 February 2109.
The Tribunal notes that a telephone call took place between the delegate and the applicant at which time she confirmed that she had ceased employment with her sponsor in February. This call took place following written notification from the sponsor that Bay Side Streaky Bay Restaurant ceased operating on 1 February 2018.
A written statement by the applicant’s previous employer states that she was employed until 30 March 2018. The Tribunal accepts that the visa holder was paid until 30 March but agrees with the Department that employment ceased on 1 February 2018, at the time of closing of the restaurant, which did not subsequently reopen. The failure to reopen was confirmed by the applicant as was the fact that she did not do any further work for her previous employer post 1 February 2018.
The Tribunal has concluded that if you accept the 1 February 2018 cessation date, then in excess of 12 months elapsed before reemployment took place on 11 February 2019, as was stated by both the applicant and the current employer, Mr Sharima. Tribunal notes that even If the more recent cessation date was to be accepted, the maximum 90 day period allowed between employments would still be substantially exceeded as 317 days had elapsed between the two periods of employment.
Ms Kaur confirmed during the hearing that she had not worked following the closing of the restaurant in Streaky Bay and her recent reemployment as of 11 February 2019. The Tribunal found Ms Kaur credible and sees no reason to doubt the voracity of her statement.
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
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’.
Purpose of the visa holder’s travel to Australia
Ms Kaur was on 9 August 2016 granted a 457 visa for the purpose of working for an approved sponsor, in a skilled occupation for which she was specifically nominated to work, Café and Restaurant Manager, ANZSCO 141111.
The Department received information in writing from the sponsor that the business had ceased operating effective 1 February 2018 and therefore Ms Kaur ceased employment on the same date, 1 February 2018.
On 7 April 2017, her sponsor Gyani Pty Ltd lodged a nomination to sponsor in the same
nominated occupation of Cafe or Restaurant Manager under the Employer Nomination
Scheme (ENS).
On 12 April 2017, Jasbir Kaur lodged an associated application for a permanent Employer
Nomination Scheme (class EN subclass 186) visa via the Department’s online facility.
While the ENS nomination remained outstanding before the Department at the time of the delegate’s decision, the ENS application was withdrawn on 14 May 2018.
On 12 April 2018, Jasbir Kaur lodged an application for a temporary Student Higher
Education (class TU subclass 500) visa application via the Department’s online facility. On
13 April 2018, the Department deemed the application invalid.
On 16 April 2018, Jasbir Kaur lodged a new application for a temporary Student Higher
Education (class TU subclass 500) visa (‘Student visa’) via the Department’s online facility.
On 27 April 2018, the subclass 500 Student visa was refused.
On 15 July 2018, Ms Jasbir Kaur lodged an appeal with the Administrative Appeals Tribunal. At the time of the Delegate’s decision, the case was pending before the tribunal.
On 23 July 2018, The Pepper Port Pty Ltd, trading as Exquisite Indian Fusion
Asian restaurant, lodged a nomination to sponsor Ms Jasbir Kaur in the position of Cafe or
Restaurant Manager ANZSCO 141111, in relation to the Temporary Skills Shortage program. The nomination was refused by the Department.
The visa applicant is currently working for OMNI Hindmarsh Pty Ltd, Trading as Ginger at OMNI, ABN 76 621 347 100. She commenced work as a Restaurant Manager on 11 February 2019. The Restaurant will open on 1 March according to the evidence provided orally at the hearing by the owner Mr Sharima. They are currently in the planning and recruitment phase.
The Tribunal has been provided with evidence that an application for sponsorship was received by the Department in February 2019 and they responded acknowledging the application on 14 February 2019.
The Tribunal received the following statement sent on behalf of the visa applicant on 19 February 2019.
‘Currently Jasbir Kaur has new employer namely OMNI Hindmarsh Pty Ltd Trading as Ginger at OMNI (ABN 76 621 347 100) and business is willing to sponsor her. Business has prepared all the required documents and has signed agreement as well. But business is not sure about Jasbir Kaur visa situation therefore business did not lodged nomination application. As it can be unnecessary cost for business. If Jasbir Kaur will be granted favourable decision then employer is happy to nominate her and will provide all required documents.’
This statement was primarily repeated by the representative at the hearing following a question directed to him by the Tribunal Member as to whether a visa nomination had been submitted.
It is self-evident to the Tribunal that Ms Kaur has lodged a substantial number of visa applications, in a range of visa streams. Since 2008 there have been 14 visas issued including the current E Class Bridging visa, WE 050. This was put to the applicant during the hearing, she was also asked if she was intending to try to stay here as a permanent resident, her reply was in the affirmative. It may not be unreasonable to conclude that this is an attempt to enable the visa applicant to stay onshore for an indefinite period of time. This was not the intended purpose of the 457 visa program. The Tribunal gives no weight to this aspect in favour of the applicant.
Extent of compliance with conditions
The Tribunal notes the following statement made by the delegate at the time of decision.
‘In her response Jasbir Kaur claims that on 17 May 2018, she received a letter from the
Department to notify her that her sponsor’s agreement had been cancelled and to advise
that she find another employer. She submits that after 17 May 2018 she started looking for
other employment, secured employment with The Pepper Port Pty Ltd, trading as Exquisite
Indian Fusion Asian Restaurant, that the sponsor nominated her in the position of Restaurant Manager and lodged a nomination application on 23 July 2018. She claims this was all done within ninety (90) days of receiving her letter from the Department.
The UC 457 grant letter issued to Jasbir Kaur on 9 August 2016 states:
Requirements if you stop working for your sponsor
If you stop working for your sponsor you must do one of the following within 90 days
of ceasing employment:
- find another employer who is willing to nominate you
- be granted another type of substantive visa
- make appropriate arrangements to depart Australia.’
Therefore, while I acknowledge her claim that a new nomination was lodged within ninety
(90) days of receiving the notification letter that her sponsor’s agreement had been
cancelled, she did not lodge this nomination within ninety (90) days of ceasing employment with her sponsor which was effective 1 February 2018.
Bay Side Streaky Bay Restaurant ceased operating from 1 February 2018 and therefore
Jasbir Kaur ceased employment with her sponsor on the same date. The 457 visa provides
the visa holder with a period of 90 days after ceasing employment to find another sponsor, be granted another visa or depart Australia.
The Tribunal has previously stated its’ view that the visa applicant ceased employment at the time of her employer closing their business. If the position as put forward by Ms Kaur that she was paid until 30 March is seen as the cessation of employment date the period between jobs still clearly and very substantially exceeds the allowable 90 days maximum as stipulated by 8107(3)(b). There is substantial non-compliance of the visa condition and the Tribunal gives no weight in favour of the applicant when considering this factor.
Degree of hardship that may be caused to the visa holder and any family members
Ms Kaur stated in the hearing and previously in writing that she would suffer financial hardship if her visa was cancelled due to her financial responsibilities towards her family which includes 2 daughters. I note that the 2 daughters and her spouse are secondary applicants and as such the cancellation of Ms Kaur’s visa results in the cancellation of their visas. Mr Sharima during his oral testimony asked the Tribunal to consider that returning the visa applicant to India after a 10 year absence will add to their economic burden as this time can’t be replaced. This outcome is the same as faced by any applicants in the same situation. The Tribunal places minimal weight on this aspect in favour of the applicant.
The Tribunal acknowledges that the some financial and emotional hardship may be faced by the primary applicant and her family if they return to India. It does not however accept that this would be the cause of extreme hardship. The Tribunal appreciates the severing of community ties and the fact that the 6 year old child has not previously resided in India will inflict some degree of dislocation but it also notes the existence of extended family in India. The Tribunal places some weight to this aspect in favour of the applicant.
The Tribunal notes that the eldest child has resided for most of her life in India with her Grandparents with whom she has a strong bond, at her request, according to Ms Kaur’s testimony. Ms Kaur stated that she was doing well there at school but now wanted to come to Australia to live with her parents. She went on to say that her youngest daughter would not do as well in India as she might in Australia. Ms Kaur explained that women are able to be more independent and be safer in Australia. The Tribunal acknowledges some cultural differences between the 2 countries but stated at the hearing that India was a country with a rapidly growing economy and opportunities. The Tribunal asked several times if there were any other hardship issues it should consider in its decision making, no other substantive issues were raised. The Tribunal places some weight to this aspect in favour of the applicant.
Circumstances in which the ground for cancellation arose
The grounds for cancellation arose following the cessation of the sponsor’s business on February 2018. Subsequently the applicant ceased employment on the same date. The applicant was reemployed on 11 February 2019 which very substantially exceeds the permitted 90 day maximum period of time between periods of employment. The applicant claims that the business failure was not within her control and the Tribunal agrees that is a reasonable assertion. However Ms Kaur was notified at the time of her visa being granted on 9 August 2016, that the following conditions apply.
‘If you stop working for your sponsor you must do one of the following within 90 days
of ceasing employment:
- find another employer who is willing to nominate you
- be granted another type of substantive visa
- make appropriate arrangements to depart Australia.’
The Tribunal gives some weight to this aspect in Ms Kaur favour.
Visa holder’s past and present behaviour towards the Department
The Department acknowledged that there was no information to suggest that Ms Kaur had been uncooperative with the Department or their staff. The Tribunal has no evidence before it that would lead it to believe otherwise. The Tribunal gives this aspect a little weight in Ms Kaur’s favour.
Whether there are persons in Australia whose visas would, or may be cancelled under section 140of the Act
Ms Jasbir Kaur has the following dependants whose visas would be cancelled under s140:
Name   Date of Birth          Relationship
HARBHAJAN SINGH      1 June 1979          Dependant Applicant / Spouse / Defacto Partner
HARSIMRAN KAUR     3 May 2008           Dependant Applicant / Child
HARSIRAT KAUR      18 November 2012 Dependant Applicant / Child
The Tribunal notes that Harisman Kaur has resided in India since 19 March 2011 and Harisat Kaur has visited India but resides in Australia. The Tribunal gives this consideration a little weight in Ms Kaur’s favour.
Legal consequences of a decision to cancel the visa
The Tribunal notes that Ms Kaur currently has an E class Bridging visa WE 050. She would become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not resolve her immigration status or voluntarily depart Australia.
The Tribunal has also considered that she would be affected by section 48 of the Act, which may prevent her from applying for further visas while in Australia. The cancellation of the 457 Visa will not be subject to Public Interest Criterion 4013. The Tribunal gives this a little weight in her favour.
Australian international obligations
There is no information before the Tribunal that would indicate circumstances that would engage Australia’s international obligations. The Tribunal places no weight on this consideration.
Any other relevant matters
The Tribunal is not aware of any other relevant matters and is therefore unable to place any weight on this consideration.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the first named visa applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Peter Emmerton
Member

[2019] AATA 2894

21 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice