Jyoti (Migration)

[2020] AATA 5799

Jyoti (Migration) [2020] AATA 5799 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jyoti Jyoti
Mr Kulwinder Singh Kulwinder Singh
Master Krishhna Krishhna

CASE NUMBER:  1935662

HOME AFFAIRS REFERENCE(S):          BCC2019/3263204

MEMBER:Mark O'Loughlin

DATE:27 October 2020

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 27 October 2020 at 5:12pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled))– breached condition 8107– no longer employed by sponsor – occupation was no longer on the list of approved occupations – made no effort to obtain alternative employment –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116

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 16 December 2019 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 has not complied with condition 8107 (3)(b) which attaches to her visa. 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 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 and the second applicant, Kulwinder Singh, appeared before the Tribunal by video on 14 October 2020 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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. Relevant 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.

8. In making this decision the Tribunal has relied on documents, copies of which were provided by the applicant. Those documents are;

   1)a copy of the delegate’s decision dated 16^th of December 2019; and

   2)a copy of an email from the applicant to the Department dated 26^th of November 2019.

9. The Tribunal has not relied on other documents in making its decision.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

10. 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. At subclause 8107 (3)(b) this condition relevantly provides that if the visa holder ceases employment the period during which the visa holder ceases employment must not exceed 60 consecutive days.

11. In evidence the applicant said that her employment with her sponsor, Desi Touch Sunny’s Hair Salon, was terminated on 19 June 2019 and that she has not worked anywhere since.  It is not clear if the applicant worked on 19^th June 2019.

12. The applicant’s visa was cancelled on 16 December 2019 and so, not including the day of the termination of her employment and the day of the cancellation of her visa, the applicant was not working for a period of about 179 days during the currency of that visa.

13. The applicant was in breach of the visa condition once 60 days had passed since the termination of her employment.

14. The Tribunal finds that the applicant was in breach of subclause 8107(3)(b) for a period of 119 days.

15. 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

16. 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’.

17. The applicant gave evidence that she had been in Australia since 2009 on various types of visas.

18. She said that she and her family do not wish to go back to India and that she is particularly concerned for her son who has lived and been educated in Australia for so long that he now speaks little Punjabi and might have trouble assimilating into Indian society.

19. She gave evidence that her job with her sponsor, Desi Touch Salon, finished when she got an email saying that the business was closed.

20. She said that that was on the 19^th June 2019.  She had been working for Desi Touch Salon as a hair salon manager.

21. She gave evidence that once she lost her job, she took the opportunity to spend time with her son who had spent the first few years of his life in India. She said that she had missed those years and when her son had been in Australia she had been working and so she took the opportunity to spend time with him.

22. She was asked if she had been looking for work and said that the wife of her old boss had said she might give her a job. However, she is no longer sure that work would be available because of the restriction of business arising from the COVID 19 pandemic.

23. She said that when she had first explored the opportunity to work for someone else she had been told by her lawyer that the occupation of salon manager is no longer on the list of approved occupations and that it would not be possible to get a nomination for that position anyway.

24. She gave evidence that she knows that another job as salon manager would not satisfy the requirements of the visa so there is no point looking for that sort of work.

25. She said that she had not looked for work since 19 June 2019 although she wants to try to find work in a restaurant or something like that.

26. The applicant was asked about the email that she sent to the Department on 26 November 2019.

27. In that email she had said “Give me some more time as u know without experience it’s hard for me to find a job in another field as a manger.”. At the hearing the Tribunal asked whether she had in fact been looking for another job as a manager and she said she had not.

28. She said that she also understood from her lawyer that restaurants can no longer sponsor managers in the Sydney area.  She said that she went to different restaurants, but they told her that they cannot sponsor a manager anymore.  She had therefore stopped looking for that work.

29. The Tribunal asked the applicant what decision she wanted the Tribunal to make in those circumstances.  She said that she was not sure about COVID 19.  The Tribunal pointed out that she had not made any effort to comply with the conditions of her visa since well before the pandemic threat had become apparent.  She did not try to provide any further reply.

30. The Tribunal asked the applicant to explain why she thought her situation would be different if the Tribunal did not affirm the delegate’s decision to cancel her visa. The applicant said she is confident she would be able to get work and that she is a hard worker. She said that her only problem is that the job she was doing is no longer on the list.

31. The Tribunal put to her that her evidence is effectively that she knows she will not succeed in obtaining sponsorship because she does not have the right qualifications. She did not disagree and said that her lawyer had told her that she has no choice and must go back.

32. The Tribunal noted that she had said multiple times that her problem was that her former occupation would no longer sustain a nomination for the purposes of her visa.  The Tribunal said to the applicant that although she seemed to think that that submission assists her application, in fact it does not and it suggests she will not be able to comply with the requirements of a 457 visa.

33. The applicant replied that she had spoken to immigration but was unable to explain what their response was or how it helps her application.

34. The applicant said that her husband had worked as a kitchen hand in a restaurant until 2 October 2020, a few weeks before the hearing.

35. She said that she had never worked in India but her husband had worked with his brother as a cable operator.

36. The Tribunal also heard from the applicant’s husband, Kaurwinder Singh who is a secondary applicant.

37. He said that the family’s problem is that his wife did not find sponsorship because her job is not in the list.  He said that there are companies happy to sponsor his wife but because the occupation is not on the list they have a problem.

38. He gave evidence that he has no source of income in India and that the situation there is very bad.

39. He said that now he has been here in Australia for 11 years or so and there is nothing back in India for him.

40. He thought that his son would be able to find a school in India but that there would be language problems.

41. He also thought that the family would suffer discrimination as they are members of a Scheduled Caste.

42. Mr Singh expressed his concern for the future of his son because of likely problems settling back into school in India and likely language problems. He also said that as a member of a Scheduled Caste there may be problems getting a job and being able to marry. 

43. Mr Singh repeated that the only problem with the visa is that his wife’s occupation was no longer on the list of approved occupations.

44. Mr. Singh said that the visa breach and subsequent inability to remedy the breach were not “our fault”.

45. In relation to the purpose of the visa holder’s stay in Australia, the applicant gave evidence that she hoped to get permanent residency and that she had indeed applied although her application had not been successful.

46. Although the Tribunal accepts the temporary visa may be part of a pathway to permanent residency, the purpose of the 457 visa is mainly to meet the need for workers with particular skills.

47. The Tribunal finds that the visa holder’s motivation to stay in Australia is not consistent with the purpose of the visa and gives this consideration a little weight in favour of cancellation of the visa. 

48. Condition 8107 contemplates that the applicant should find alternative work within 60 days of ceasing employment. Nearly three times that period had elapsed at the time of cancellation of her visa. This is a fairly substantial breach of condition.  There is no evidence of other visa condition breaches either in relation to this or any other visa the applicant has held.  The Tribunal accords this consideration a little weight in favour of cancellation of the visa.

49. The applicant and her husband gave evidence of substantial hardship of a financial, psychological, and emotional nature that they and their son will suffer if obliged to return to India.

50. The thrust of their evidence about financial hardship was that they would be unable to earn any income whatever. The Tribunal does not accept that.  The applicant agreed that she would be able to manage a hairdressing salon in India.  The Tribunal accepts the evidence of the applicant and her husband that he is unlikely to be able to return to the job he had in his brother’s business, but there is no reason that he could not find some sort of work.  However, the Tribunal does accept that they will probably be less able to earn and thereby suffer some financial hardship if they are obliged to return to India.  The Tribunal accords this consideration a little weight against cancelling the applicant’s visa.

51. The applicant suggested that the family are suffering psychologically at the prospect of returning to India.  There was no corroboration of that evidence and in particular no medical evidence in support of that assertion.

52. The Tribunal accepts that the applicant and her family may feel stressed by the prospect of returning to India and further accepts that they may suffer emotional hardship by reason of the cancellation of their visa.

53. On the other hand the Tribunal accepts the applicant’s own evidence that if her visa is not cancelled she will not be able to comply with condition 8107 as she will not be able to find sponsored work in the occupation in her most recently approved nomination.

54. A decision not to cancel the applicant’s visa may postpone but will not obviate any hardship that the applicant her family may suffer. The Tribunal accords this consideration a little weight against cancellation of the visa.

55. As regards the circumstances in which ground of cancellation arose, the Tribunal notes that although the insolvency of her employer does appear to have been outside of her control, the applicant has given evidence that she made no effort to obtain alternative employment.

56. The applicant’s evidence makes it clear that she did consider possible other avenues for employment including possible contacts in the hairdressing industry in which she had been working or the possibility of becoming a restaurant manager. 

57. The Tribunal also notes the applicant’s evidence that she made an application for permanent residency which was ultimately thwarted.

58. The Tribunal further notes that the applicant has now had over a year within which to seek other work but has chosen not to do so in favour of spending time with her son rather than trying to remedy the breach of her visa condition. The Tribunal accords consideration of the circumstances in which the ground of cancellation arose a little weight against the cancellation of the visa.

59. There is no evidence of past or present behaviour of the visa holder towards the Department that suggests that her visa should be cancelled.  The Tribunal holds this consideration neutral in relation to cancellation of the visa.

60. It is evident that the applicant’s husband and son hold visas because they are members of the applicant’s family unit. If the applicant’s visa is cancelled, their visas will be cancelled by reason of the operation of section 140 of the act.

61. The Tribunal has accepted the applicant’s evidence that she is unlikely to be able to comply with the conditions of her visa if it is not cancelled. It does not appear that a decision not to cancel the applicant’s visa will result in a lengthy impact on the secondary applicants as their visas are likely to be cancelled when she falls into further failure to comply with her own visa conditions.

62. The Tribunal accords the impact of consequential cancellations under section 140 little weight against the cancellation of the visa.

63. If the visa is cancelled the applicant will become an unlawful noncitizen and will need to apply for a bridging visa. If she does not get one, she may become liable to detention under section 189 and removal under section 198.

64. She may be restricted from applying for further visas while in Australia by reason of the operation of section 48 of the act.

65. The Tribunal finds that the mandatory legal consequences of cancellation of the applicant’s visa are contemplated by the act and do not weigh for or against cancellation of the visa.

66. There is no evidence that any international obligations would be breached by cancellation of the applicant’s visa. In particular, the Tribunal finds that Australia’s non-refoulement obligations would not be breached by the cancellation as there is no evidence that the applicant or her family would suffer persecution, death, torture, or cruel, inhuman or degrading treatment or punishment.

67. The applicant has expressed concern about the impact of visa cancellation on her son who she and her husband fear may be compromised in his ability to pursue education in India. She further believes that their status as members of a Scheduled Caste may expose him to bullying.

68. The applicant and her husband submit that their son’s best interests can only be served if he is allowed to remain in Australia permanently.  The Tribunal observes that this is not consistent with the terms of the visa and that they will need to seek another visa to achieve that.

69. The Tribunal accepts that the applicant’s son may experience some “settling in” problems if the visa is cancelled but the applicant gave evidence that her son spent the first 6 or 7 years of his life in India and given that he is now 10 years old the Tribunal does not accept that he will be greatly compromised.

70. The Tribunal is not satisfied that these concerns suggest that cancellation of the applicant’s visa would result in breach of Australia’s international obligations even if the applicant and her family were obliged to return to India. The Tribunal accords this consideration neutral weight in respect of its discretion to cancel the visa.

71. There are no other relevant matters that the Tribunal has been asked to consider.

72. The applicant asserts that she breached her temporary work visa because her employer went into liquidation and she lost her job, which was not her fault. She does not suggest that if her visa is not cancelled, she will be able to satisfy her visa conditions. Indeed, her evidence is that it is unlikely she will be able to do so.

73. The Tribunal has considered all of the issues that have been raised by the applicant and the matters to which it is referred by departmental policy. The Tribunal is of the view that the conditions on and purpose of a temporary visa such as a 457 visa is essentially inconsistent with the applicant’s stated desire to live in Australia permanently.

74. The Tribunal further observes that the applicant herself does not believe that she will be able to comply with the conditions of her visa if it is not cancelled. This question was explored with the applicant and her husband extensively during the hearing.  The applicant and her husband are correct when they say that their probable inability to comply with the conditions of the visa if it is not cancelled is not their fault.

75. Having said that the Tribunal accords considerable weight to its finding that the applicant is not likely to be able to comply with the conditions of her visa if the Tribunal does not exercise its discretion to cancel it.

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

    DECISION

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

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

    Mark O'Loughlin
    Member