KAMLA DEVI (Migration)

[2017] AATA 353

KAMLA DEVI (Migration) [2017] AATA 353 (3 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  KAMLA DEVI
Mr MAHAVIR SINGH
Mr SACHIN DUDHWAL

CASE NUMBER:  1613838

DIBP REFERENCE(S):  BCC2016/2331414

MEMBER:Glen Cranwell

DATE:3 March 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 03 March 2017 at 2:29pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Sponsor ceased trading – Applicant ceased employment with sponsor more than 90 days – Employment for related entity without approved sponsorship – Breach beyond applicant’s control – New employer seeking further sponsorship

LEGISLATION

Migration Act 1958, ss 116(1)(b), 140(1), 348

Migration Regulation 1994, Schedule 2

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 26 August 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) 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 had breached condition 8107. 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 were represented in relation to the review by their registered migration agent.

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 or the Tribunal 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. This condition requires the applicant not cease employment for more than 90 consecutive days.

8. The information contained in the delegate’s decision is that the liquidator of the applicant’s sponsor, Dahab Group Pty Ltd, advised the Department on 1 July 2016 that the company had ceased trading in December 2015.  As the applicant has ceased employment with her sponsor for more than 90 consecutive days, the Tribunal is satisfied that she has not complied with a condition of the visa.

9. 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 power to cancel the visa should be exercised.

   Consideration of discretion

10. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’, relevantly:

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

    ·if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for and extent of the breach

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

    ·the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

    ·the visa holder’s past and present behaviour towards the department

    ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140

    ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:

    oif there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration

    owhether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment

    ·any other matter the visa holder raises.

11. The Tribunal regards the applicant’s purpose of coming to and staying in Australia as being to study and then work.

12. The applicant ceased employment with her sponsor when the business was transferred to Dahab Star Pty Ltd.  The business was subsequently sold to Galaxy 1 Pty Ltd.  The business has continued trading under the same name, and the applicant’s evidence was that she was unaware of the changes in ownership.  This can be characterised as a circumstance beyond the applicant’s control. 

13. There is no evidence before the Tribunal to indicate that the applicant has breached any other visa conditions, and there is no behaviour of concern towards the Department.

14. The Tribunal accepts that the applicants would experience hardship if they were forced to depart Australia and return to India. 

15. The applicant has been offered employment by F Carter & J R Carter.  A nomination application was lodged on 23 February 2017. 

16. Balancing all these factors, the applicant was granted a Subclass 457 visa which was to be in force for 4 years, in the reasonable expectation of being employed by her original sponsor. For reasons beyond the control of the applicant, her original sponsor ceased trading.  However, F Carter & J R Carter has offered her employment. She has done nothing devious or untoward in her dealings with the Department, as far as the Tribunal is aware. In the Tribunal's assessment, no-one would gain from the continued cancellation of her visa, and considerable and unwarranted hardship would ensue for the applicants.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

    Glen Cranwell
    Member