Kaur (Migration)

[2021] AATA 1157

Kaur (Migration) [2021] AATA 1157 (25 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Karamjit Kaur
Mr Paramjit Singh
Ms Mannat Kaur

CASE NUMBER:  2002407

HOME AFFAIRS REFERENCE(S):          BCC2019/3975983

MEMBER:Bridget Cullen

DATE:25 January 2021

PLACE OF DECISION:  Brisbane

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 25 January 2021 at 12.41pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled))– breached condition 8107– applicant ceased employment for more than 60 consecutive days– applicant has not been able to secure another approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, cl 457.223

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 5 February 2020 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 ceased employment with their sponsor. The secondary applicants’ visas’ were automatically cancelled as a consequence of that cancellation. 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 appeared before the Tribunal on 21 October 2020 to give evidence and present arguments.

5. 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

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 is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(b) is attached to the applicant’s visa. This condition requires that if the visa is a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of cl.457.223(2) (or cl.457.223(4)), then the visa holder must not cease employment for a period of 60 consecutive days.

8. The applicant was granted the visa based on their approved nomination with JZ Business Enterprises Pty Ltd on 4 February 2019. The sponsor notified the Department that the applicant had ceased employment with them on 2 April 2019.

9. The Department issued a Notice of Intention to Consider Cancellation on 10 January 2020. The applicant responded on both 14 January 2020 and 19 January 2020. The applicant’s response was summarised by the delegate in the following terms:

   “The visa holder was under the impression that her sponsor was still in negotiation with her for some time after 04 February 2019, and that she had not been terminated at that point.

   The company only advised her that she should take time off while the matter (personal matter with regards to assistance) was being discussed.

   The visa holder submitted that she was not officially or legally terminated as per the date in the Notice. She did not receive notification regarding her termination of employment written or verbally. She was not sure when the actual termination date took effect as this information was never provided to her.”

10. The Delegate cancelled the visa on 5 February 2020.

11. At the commencement of the hearing, the Tribunal confirmed with the applicants that they had not submitted any Insert discussion (including consideration of any claims/submissions made by the applicant), findings and reasons relating to whether the relevant condition has been breached.

12. The applicant says that she had a miscarriage, some health issues, and her father-in-law had health issues, so she took leave. The applicant says that she was never given a termination letter. The applicant conceded that, although she was not given a termination letter, her sponsor had stopped paying her. The applicant did not provide the Tribunal with a straightforward answer to its questions about when her last day of work was with JZ Business Enterprises Pty Ltd. However, she says that she did not work for JZ Business Enterprises Pty Ltd after 2 April 2019.

13. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 60 consecutive days of ceasing employment and has not done so since the cessation of her employment on 2 April 2019. On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 60 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b).

14. 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

15. 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’.

16. The Tribunal has first considered the purpose of the applicant's travel to and stay in Australia. The evidence before the Tribunal indicates that the purpose of the applicant's travel to and stay in Australia was, originally, to study. The applicant and her husband, Mr Paramjit Singh, first arrived in Australia on student visas, in 2008. On 6 March 2019, the applicant was granted the Class UC (Subclass 457) Temporary Work (Skilled) visa that is the subject of this decision. The purpose of that visa was for the applicant to engage in temporary employment for an Australian business JZ Business Enterprises Pty Ltd as a cook from 6 March 2019 until 6 March 2021. The evidence indicates that the applicant ceased working for the sponsoring employer by 2 April 2019, at the very latest, and that since that time she has not become the subject of an approved sponsorship/nomination.

17. The purpose of the Subclass 457 visa is for an applicant to work on a temporary basis for an approved sponsor in an approved occupation and that since ceasing employment with JZ Business Enterprises Pty Ltd on 2 April 2019, the applicant has not been able to secure another nomination. The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list; and that if an applicant had been unable to secure an approved nomination, then this meant the applicant was not able to fulfil the purpose of the 457 visa. The Tribunal considers that this weighs strongly in favour of cancelling the visa.

18. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted her most recent 457 visa was to work in the occupation of Cook for JZ Business Enterprises Pty Ltd, and that purpose ended on 2 April 2019 (based on the applicant's own evidence) when the applicant ceased working for that company. The evidence indicates that the applicant has not been able to find another sponsor. It has now been over one year and nine months since the applicant ceased working for her approved sponsor and to date the applicant has not been able to secure another approved nomination, under the 457 visa programme, or otherwise.

19. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for her approved sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa.

20. The Tribunal has considered the applicant's compliance with visa conditions and is satisfied that other than condition 8107(3)(b), the applicant has complied with visa conditions.

21. The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose 60 days consecutive after the applicant ceased employment with the sponsor as she was unable to secure another nomination within the 60 day period. The Tribunal notes the applicant's assertions that she has made efforts to secure another nomination, but the applicant has not been successful in these efforts. The Tribunal finds that these circumstances weigh in favour of cancelling the applicant's visa.

22. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. The applicant also has a husband and daughter, who are secondary applicants, and this decision will impact them. The Tribunal notes that had the visa not been cancelled; it would expire on 6 March 2021. The Tribunal notes that there would be only two months remaining on the visa period, but for the cancellation.

23. The applicant has several educational qualifications from Australia, including a Diploma in Hospitality and Management, and a further Management Diploma, from the South Pacific Institute and Della Institute, as well as a Certificate III in Bakery. She also has a Certificate III and Certificate IV in Aged Care. Mr Paramjit Singh is employed as a truck driver. The Tribunal considers that the applicant, as well as her husband, are qualified in a manner that should facilitate their ability to acquire employment in their home country.

24. The applicant and her husband speak Punjabi at home. Although their 4-year old daughter “mostly speaks English”, the applicant says that she now understands most of what she and her husband say to each other at home in Punjabi. She has not yet commenced school but will start kindergarten soon. Considering her young age, the Tribunal considers that the applicant’s young daughter will adjust well to a new environment in her parents’ home country. The Tribunal has been told by the applicant that neither she, nor her husband, have any family in Australia, but they do have family back home in India.

25. The applicant is finding it difficult, given the Covid-19 pandemic, to find employment in Australia. Neither she nor her husband own any property in Australia. They have been assisted to survive in Australia by family back home in India. The Tribunal considers that these circumstances do not lend support to the applicant’s case. The applicant has more family support in her home country. While the Tribunal accepts that the applicant has friends in Australia, and has lived here for a lengthy period, the lack of practical family and financial support in Australia weighs in favour of cancelling the visa.

26. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if she does not continue to hold visas to remain lawfully in Australia or refuses to depart voluntarily. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.

27. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience hardship, including emotional hardship, if the visa is cancelled, particularly given she has lived with her husband in Australia since 2008. The Tribunal also accepts that the applicant has generally complied with visa conditions. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the Subclass 457 visa and the fact that the applicant has been unable to secure another approved nomination since ceasing work with the sponsor more than 21 months ago.

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

    DECISION

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

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

    Bridget Cullen
    Member