Kansal (Migration)

[2020] AATA 2303

Kansal (Migration) [2020] AATA 2303 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Deepika Kansal

CASE NUMBER:  1933725

HOME AFFAIRS REFERENCE(S):          BCC2019/3309183

MEMBER:John Cipolla

DATE:23 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 23 March 2020 at 8:18am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 60 days – wage dispute – sponsor’s business closed – Fair Work mediation – applicant seeking permanent residence pathways – closure of the 457 program – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. On 20 December 2017 the applicant was granted a Subclass UC 457 Temporary Work (Skilled) visa. On 26 November 2019 the delegate cancelled the visa under s116(1)(b) of the Migration Act on the basis that the applicant had not complied with condition 8107(3)(b) which requires that upon cessation of employment with the sponsor, the visa holder not remain unemployed for a period of more than 60 consecutive days. In the Notice of Intention to Consider Cancellation (NOICC) dispatched 16 October 2019 the delegate noted that according to information received from the sponsor the applicant ceased employment on 26 November 2019, and that no information had been provided to suggest that the visa holder had since obtained new employment. The delegate noted that this was adverse information that could lead to the cancellation of the visa and invited the holder to comment on whether she believed the grounds for cancellation of her visa existed and whether the visa should be cancelled.

3. Two responses to the NOICC were provided to the Department dated 30 October 2019 and 19 November 2019.  The applicant indicated that when requesting unpaid wages from the sponsor she had received threats that the sponsor would “effect my visa” [sic], and had also received a request from her sponsoring employer to transfer his demerit points and a “huge fine” to her licence, which the applicant declined. Regarding the cessation of her employment, the applicant indicated that she was unaware of her obligations to obtain new employment within 60 days and she provided comments in relation to her good conduct and character, and mentioned that she had applied for a manager position at a hair salon business.

4. On 26 November 2019 the delegate cancelled the visa. In doing so the delegate weighed the relevant discretionary factors both in favour of, and against the cancellation of the visa. With regard to the purpose of the visa holder’s stay in Australia, the delegate noted the temporary nature of the visa and that the nomination that had been approved for the holder to be employed in the role of Hair or Beauty Salon Manager for the nominating business.  Further to this that the applicant’s continued stay in Australia was contingent on her finding a new sponsoring employer within 60 days of the cessation of her employment and she had failed to do this. Further to this the fact that her continued stay in Australia and failure to obtain new employment in this time had ceased to within the parameters of the grant of her visa lent significant weight in favour of cancellation. With regard to the assessment of the extent of compliance with visa conditions the delegate noted the breach of condition 8107(3)(b) that led to the cancellation of the visa and indicated that this gave significant weight to the cancellation of the visa. With respect to the hardship that may be caused to the applicant if the visa remained cancelled, the applicant made reference to 12 years of hard work, the effect on her parent’s lives and her father’s heart condition – the delegate noting that no evidence had been tendered with respect to the applicant’s father’s health condition, the delegate was prepared to apportion some weight against cancellation on this basis. Considering the circumstances in which the cancellation occurred, the delegate referred to claims by the holder of threats made by the sponsor during the time of her employment and noted that the applicant provided limited evidence of these claims, apart from giving the Department a case number of a case currently undergoing mediation with the Fair Work Ombudsman. The delegate concluded that the applicant had significant time to obtain new employment, that this factor at the very least was within their control and so would only lend a little weight against the cancellation.  The delegate noted that the applicant had no adverse interactions with the Department, and referred to standard legal consequences stemming from cancellation such as s189/s198, s48 and PIC 4013 and collectively attributed these factors some weight against cancellation of the visa.

5. The Tribunal received a pre-hearing submission that it has duly considered.  The submission dated 13 March 2020 states as follows.  The submission notes that the applicant was granted a Subclass 457 visa on 20 December 2017. The submission notes that the applicant provided a formal response to the NOICC.  The submission notes that the applicant informed the Department that during the time of her employment she was not paid appropriate wages and when she requested the sponsoring employer to pay her relevant wages he made threats to her that would potentially impact on her visa status. In addition to this the applicant’s employer asked the applicant to sign a declaration absorbing a number of traffic offences that attracted demerit points on behalf of the sponsor, something that the applicant refused to do because it was illegal. The submission notes that the applicant lodged a complaint against the sponsoring business with the Fair Work Ombudsman and with the Australian Taxation Office with regard to her superannuation and tax. As a result of representations by Fair Work Australia the sponsor eventually agreed to pay the applicant part wages and the applicant and the sponsor entered into a mediation and agreed to settle the claim. The submission notes that the applicant had been a victim of gross employment violations by the sponsoring employer.

   REVIEW HEARING

6. The applicant appeared before the Tribunal on 17 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicant was represented in relation to the review by her registered migration agent.

8. At the outset of the review hearing the Tribunal explained in detail the respective issues in review in the prospective outcomes of merits review.

9. The applicant provided her name and date of birth.

10. The Tribunal asked the applicant about her immigration history to Australia. The applicant advised that she first arrived in Australia in December 2007 is the holder of a student visa when she was 20 years old. The Tribunal asked the applicant about her study history. The applicant stated that she initially enrolled in a diploma of accounting at Stirling College in Sydney. She advised that six months after commencing her studies the college close down and the Department enabled affected students to find another education provider. The applicant advised that she then transferred to Carrick College also located in Sydney to undertake hairdressing studies. The applicant advised that she completed a Certificate III in hairdressing course of approximately one year’s duration. The applicant then completed a Diploma of Business Administration at the same college. The applicant advised that she then transferred to a different education provider ACVS College located in Sydney where she completed an Advanced Diploma of Administration and Management.  The applicant advised that this course ran for about 1.5 years. The Tribunal asked the applicant when she finally completed her studies and she advised in approximately 2015.

11. The Tribunal asked the applicant what she did after the cessation of her studies she advised that she applied for the subclass 457 visa that is the subject of this review and whilst that application was being processed she was issued with a bridging visa by the Department which enabled her to work.

12. The Tribunal asked the applicant about her study history in India prior to her arrival in Australia in 2007. The applicant stated that she completed high school and then completed a Bachelor of Arts majoring in fine arts.

13. The Tribunal noted that the applicant had studied business-related studies in hairdressing in Australia and noted that this did not seem to correlate to her studies in fine arts that she completed in India the Tribunal asked the applicant what she was trying to achieve with her study programme in Australia. The applicant stated that she loved hairdressing and she also loved fine arts and that she wanted to do something in her life that was creative.

14. The Tribunal noted that given this objective it seemed at odds that the applicant had engaged in studies in business and had not pursued creative arts-based courses. The Tribunal asked the applicant why she had pursued such studies in Australia. The applicant advised that if she completed business studies then she may one day be able to open her own hairdressing salon and that she had learned skills about promotion of businesses

15. The Tribunal noted that overseas students when applying for a student visa need to satisfy the Department that they have sufficient access to funds to meet their cost of living expenses and their education costs for the duration of this study in Australia. The Tribunal noted that a student visa holder is only allowed to work 20 hours a week during terms of study. The Tribunal noted that on occasion an overseas student had provided spurious evidence pertaining to access to funds in their home country and when they arrived in Australia worked more than 20 hours a week in order to meet their cost of living expenses in order to pay for their education costs and to send money back to family members in their home country. The Tribunal asked the applicant about her financial circumstances during the period that she studied. The applicant advised that she obtained money from overseas.

16. The Tribunal asked the applicant brought her long-term objectives were given that she had now been resident in Australia for 13 years. The Tribunal asked the applicant whether it was her long-term objective to obtain permanent residence in Australia. The applicant stated that when she came to Australia and engaged in study she experienced a new way of life in this country. The applicant advised that in the Punjab in India she came from a small town where there were limited opportunities. The applicant stated that in that environment she would be expected to marry and that life in Australia offered more opportunity. The Tribunal asked the applicant whether she had ever sought advice about prospective permanent residence pathways and the applicant confirmed that she had consulted migration agents but had never been given proper guidance.

17. The Tribunal asked the applicant about her position in the nominated occupation working for the sponsoring business has a 457 visa holder. The applicant stated that she worked as a hair salon manager. The Tribunal asked the applicant how she found this employment. The applicant stated that she saw an advertisement on gumtree that she applied for the position which was based in Bomaderry on the south coast of New South Wales.

18. The Tribunal asked the applicant about her employer and she advised that he was an Australian citizen of Sri Lankan ethnicity. She advised that he ran a cleaning company and the hairdressing business. The Tribunal asked the applicant about the duration of her subclass 457 visa in the applicant advised that it was granted on 20 December 2017 valid until 20 December 2019.

19. The Tribunal asked the applicant when she commenced work for the sponsoring employer. The applicant stated that she commenced work on 17 May 2016 and there was no fixed roster and that she worked from opening to closing time.

20. The Tribunal noted that the evidence before it indicated that the sponsor advised the Department that the business closed down on 14 January 2019. The Tribunal asked the applicant whether this happened. The applicant confirmed that the business did close down on that date. The Tribunal asked the applicant whether she was aware of the reason for the closure of the business in January 2019. The applicant stated that she returned from overseas on 17 December 2018 and that her employer asked for her driver’s licence in an attempt to have the applicant absorb a number of demerit points on his behalf. The applicant stated that she refused to do this because it was illegal. She advised that she was threatened by the employer but she refused to engage in an illegal practice. Once again the Tribunal asked the applicant whether she was aware of the reason that the business shut down. The applicant stated that when she returned from overseas the business that had employed her had closed down and another business had commenced operation. The Tribunal asked the applicant whether she went to the Department of Immigration at the time that the business had close down in January 2019 to advise about her predicament and her options. The applicant stated that she did not do this that she contacted her immigration lawyer who advised her that she could apply for another employer but did not advise about the timeframes for doing this. She also suggested that the applicant could apply for a student visa.

21. The Tribunal asked the applicant whether she had been able to find an alternative employer to sponsor her since the closure of the sponsoring business in January 2019 to the time of the hearing in March 2020. The applicant stated that she had made multiple applications and enquiries but had not been able to find another employer.

22. The Tribunal asked the applicant given the circumstances whether she had made a decision that given her experience and qualifications obtained in Australia that she should return to India to explore opportunities in her home country. The applicant stated that “I believe one gets success only after struggle. I have lodged a complaint with Fair Work.”

23. Once again the Tribunal asked the applicant what her overall objective was given the problems she had experienced whilst holding a subclass 457 visa and then attempting to find employment beyond the cessation of the business in January 2019. The applicant stated that she believes that she was a good hairdresser and had good skills to run a business. The applicant also advised that she believed that she had not been given proper immigration advice.

24. The Tribunal asked the applicant how she had been surviving financially. She advised that she had been deriving support from her family, borrowing money, and undertaking limited work as a hairdresser for which she received approximately hundred dollars per week. The Tribunal asked the applicant how she was paying for her migration agent for the purposes of this review and she advised that as her migration agent was Indian her parents were putting this bill.

25. The Tribunal asked the applicant how many times she returned to India since being in Australia in 2007 and she advised approximately 3 to 4 times. The Tribunal asked the applicant whether she had siblings in India and she advised that she had two brothers one whom was married and one who was single. She advised that her brothers were both younger than her.

26. The Tribunal asked the applicant whether she wanted to bring any other evidence to its attention pertaining to the cancellation of her visa. The applicant stated that she wanted one more opportunity and that she had been through a lot of struggle, that she had been the subject of employment fraud, and that her employer had made her suffer emotionally and financially.

    Consideration of discretion

27. 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’.

28. The Tribunal discussed with the applicant at hearing the purpose for her travel to and stay in Australia. With regard to his travel history to Australia the applicant advised the Tribunal that he initially travelled to Australia in December 2007 as the holder of a Student visa. The applicant advised that she had undertaken tertiary studies in India prior to her arrival in Australia, namely a Bachelor of Arts majoring in Fine Arts. The applicant advised that after she arrived in Australia she undertook study at a range of institutions predominantly diploma and advanced diplomas in business related studies and a Certificate III in Hairdressing.  The applicant advised the Tribunal that her long term objective was to work in the arts or in some creative field. The applicant prior to the expiration of her last student visa made an application for the subclass 457 visa that is the subject of this review. That visa was granted on the basis of the applicant working as a hair and beauty salon manager for her sponsoring employer Cleaning for a Reason at their business premises in Bomaderry on the south coast of New South Wales. The evidence before the Tribunal indicates that the applicant was granted this visa on 20 December 2017 and that the visa was valid until 20 December 2019 with the prospect of a further extension beyond that. The evidence before the Tribunal indicates that the business closed down on 14 January 2019 and that the applicant ceased employment with her sponsoring employer at that point in time. The evidence before the Tribunal indicates that since that time the applicant has failed to find another sponsoring employer and the evidence indicates that the applicant ceased employment with the sponsoring employer and the period in which the applicant ceased employment has exceeded 60 consecutive days. The Tribunal noted that this visa was for a finite period with the expectation that the applicant would work as per her contract of employment with the sponsoring employer until 20 December 2019 and that this ceased when the business closed down on 14 January 2019.

29. The Tribunal gives this consideration weight in favour of the visa cancellation.

30. The Tribunal discussed with the applicant the extent of compliance with visa conditions. The evidence of the applicant was that she had complied with the conditions attached to her student visas up until the cessation of her studies. The applicant gave evidence that up until the point of the cessation of the business in January 2019, something that she learnt about when she returned from an overseas visit that she had complied with the conditions attached to her Subclass 457 visa

31. The applicant gave evidence to the tribunal that during the period of her employment as a subclass 457 visa holder that she had been the subject of unscrupulous practices by her employer pertaining to underpayment of wages, something that had been settled through mediation by the fair work ombudsman and that she had also been the subject of other threats pertaining to her absorbing demerit points on behalf of the sponsoring employer. The applicant has since the cessation of the business attempted to pursue alternative employment and an alternative sponsorship without any success. The Tribunal finds that the applicant’s failure to comply with condition 8107(3)(b) of her Subclass 457 visa was attributable to the cessation of the sponsoring business on 14 January 2019. The Tribunal gives some weight to this consideration in favour of not cancelling the visa.

1. The Tribunal discussed with the applicant at hearing the hardship that may be caused to her as a consequence of the cancellation of her visa.  The applicant advised that she would like one further opportunity to find an alternate employer and to prove that she is not a failure.  The applicant stated that she had endured a significant struggle and had been the subject of fraud.  The Tribunal accepts that the circumstances that led to the cancellation of the applicant’s visa was the cessation of the business in January 2019.  The Tribunal also further accepts that the applicant had been the subject of unsound employment practices during the time of her employment something that she has pursued with the appropriate body to deal with this the Fair Work Ombudsman and that she has and her former employer entered into mediation and reached signed terms of agreement.

2. As discussed extensively with the applicant during the course of the review hearing is that she has only ever held temporary visas.  The student visas enabled her to have an opportunity to study in Australia and to acquire new skills.  They were not an automatic pathway to permanent residence.  The temporary business visa that was the subject of cancellation and the subject of this review was a temporary visa.  The expectation was that the applicant would work for the sponsoring employer for the duration of the visa in order to address an identified skills shortage in the area of occupation.  Once again as discussed with the applicant at hearing it did not offer any guaranteed pathway to permanent residence in Australia.  The applicant advised during the course of the review hearing that she had sought advice about prospective permanent residence pathways with migration agents in Australia but had never been advised of and thus had not pursued any prospective avenues that could lead to such a grant.

3. The Tribunal notes that the grant of a Subclass 457 visa is temporary in nature for a finite period and that there may be a prospect beyond that visa of permanent residence but this is not guaranteed. The Tribunal notes that the cancellation of the applicant’s visa for breach of condition 8107 as a consequence of the cessation of the business in January 2019 has caused the applicant hardship and stress and the Tribunal gives this consideration some weight against visa cancellation.

4. With regard to the circumstances in which the ground for cancellation arose the Departmental delegate noted that the evidence before them indicated that the sponsoring employer had notified the Department that the applicant ceased employment as a result of the cessation of the business on 14 January 2019.  As noted the applicant during the time of her employment had been the subject of unscrupulous practices at the hands of her employer and that this caused her hardship and stress but she did pursue an action against the employer which led to mediation and a settlement being reached.  The evidence also indicates that the applicant, since the cessation of the business on 14 January 2019 has failed to find another employer willing to sponsor her for employment in their business.  As discussed with the applicant at hearing the 457 visa regime came to an end on 18 March 2018 and thus the subclass ceases to exist.

5. The Tribunal notes that the circumstances in which the ground for cancellation arose were beyond the visa applicants control because of the cessation of the business. However the applicant had 60 days from the cessation of employment to find a new sponsoring employer and the evidence before the Tribunal indicates that as at the hearing date 18 March 2020 the applicant had not been able to successfully find a new sponsoring employer willing to take her on. The legislative regime envisages a period of 60 days and does not provide an open ended invitation to an applicant to find an alternate sponsor beyond that time. The Tribunal gives this consideration weight in favour of cancelling the applicant’s visa.

6. The evidence before the Tribunal indicates that the applicant’s past and present behaviour towards the Department has been cooperative and the Tribunal gives this consideration some weight against visa cancellation.

7. The Tribunal notes that there is no secondary visa applicant and as a consequence no-one would be affected by the consequential cancellation provisions under section 140 of the Migration Act. The Tribunal gives this consideration little weight in favour of visa cancellation.

8. The Tribunal has had regard to the fact that the applicant may be liable to be detained under section 189 of the Migration Act or indeed removed under section 198 of the Migration Act and that she will be subject to section 48 of the Migration Act limiting her options to apply for further visas to Australia. The Tribunal gives this consideration little weight against visa cancellation.

9. The Tribunal discussed with the applicant at hearing whether it would be in breach of its international obligations to the applicant as a result of the cancellation of his visa. The applicant advised the Tribunal at review that she has returned to India on numerous occasions since coming to Australia in 2007 and that her sibling reside in India. The Tribunal notes that in the almost 13 years the applicant had been in Australia and her pursuit of permanent residence outcomes has never lodged an application for protection. There is no evidence that has been provided to the Tribunal which would lead to the Tribunal finding that it would be in breach of Australia’s non-refoulement obligations if the applicant was removed from Australia. The Tribunal gives this consideration some weight in favour of visa cancellation.

10. The Tribunal has considered all of the relevant discretionary considerations both singularly and cumulatively. The Tribunal notes that the grant of a Subclass 457 visa leads to temporary residence for a period of up to 4 years to work for a sponsoring employer in Australia. The evidence indicates that just over a year into the visa the business closed down with the applicant only learning about this upon her return from a trip overseas.  The evidence before the Tribunal indicates that since January 2019 to date the applicant has failed to find an alternative sponsoring employer. As noted the legislation envisages in condition 8107(3) that if the holder ceases employment with the sponsoring employer (for any reason) the period which the applicant ceases employment must not exceed 60 consecutive days.  The evidence before the Tribunal indicates that in the 60 consecutive days since the cessation of her employment the applicant has not been able to seek alternate employment sponsorship.  The Tribunal having regard to the relevant discretionary considerations finds when those considerations are cumulatively considered that the applicant’s visa in the circumstances of this case should be cancelled.

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

    DECISION

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

    John Cipolla
    Senior Member