Kaur (Migration)

[2019] AATA 4327

Kaur (Migration) [2019] AATA 4327 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sarbjit Kaur
Mr Harpinder Singh
Miss Harleen Kaur

CASE NUMBER:  1903918

HOME AFFAIRS REFERENCE(S):           BCC2018/5039848

MEMBER:Jennifer Cripps Watts

DATE:26 September 2019

PLACE OF DECISION:  Sydney

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 26 September 2019 at 12:57pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – employment ceased over 90 days – sponsor de-registered – nomination decision outstanding – two extensions granted – no further information provided – no jurisdiction with respect to other applicants –  decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 348
Migration Regulations 1994 (Cth), Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 February 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 breached condition 8107(3)(b) attached to her visa that requires that if she ceases employment with the sponsor, the period during which she ceases employment must not exceed 90 consecutive 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.

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. On Monday 1 July 2019, the Tribunal wrote to the applicant’s migration agent reminding him that it had been requested in the hearing invitation that any additional information or documents the applicant wished to rely on should have been provided seven days prior to the hearing and none had been provided.  On the same day, Mr Bhatia provided his written submissions.  The day after, 2 July 2019, Mr Bhatia provided written submissions again, explaining that the earlier submissions had some typographical errors and should be disregarded and replaced with the 2 July submissions.  It was confirmed with him at the hearing that the 1 July 2019 written submissions could be disregarded by the Tribunal in their entirety and the 2 July 2019 submissions should be relied on in their place. 

5. The applicant and second-named applicant appeared before the Tribunal on 3 July 2019 to give evidence and present arguments. The third-named applicant is a 10 year old child.  She did not attend the hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The applicant indicated at the beginning of the hearing that she may need the interpreter occasionally and was told that she should not hesitate to use the interpreter if she felt she needed to.  The applicant did not indicate during the hearing that she needed to be assisted by the interpreter.  The Tribunal sought occasional clarification to the applicant’s answers, but was satisfied that all oral evidence given by the applicant and her husband, in English, was clearly heard and understood.

6. The applicant was represented in relation to the review by his registered migration agent, Mr Gaganjot Singh Bhatia, Migration Agent Registration Number 0963188.

7. At the Tribunal hearing, it was discussed with the applicant, relying on written confirmation from the Department, that Hospitality Technologies Pty Ltd in Bathurst (Tamarin) had lodged a nomination application for her on 2 July 2019 (application ID 1225628033).  They had been approved as a standard business sponsor in January 2019.  The applicant was reminded that she had had two nominations for her refused since she ceased working for the sponsor and that the Tribunal had some concern about whether this third application, made the day before the Tribunal hearing, would be successful.  As a matter of fairness to the applicant, the applicant was informed that the Tribunal would not make a decision in her matter before 17 July 2019. 

8. On 17 July 2017, Mr Bhatia informed the Tribunal that Tamarin’s nomination application had not progressed and requested that the Tribunal delay making a decision.  The Tribunal responded and gave an undertaking not to make a decision before 30 August 2019, giving the applicant a further six weeks.  On 30 August 2019, Mr Bhatia notified the Tribunal that the nomination application had not been processed and again requested that the Tribunal not make a decision.

9. On 2 September 2019, the Tribunal, on the basis of this third request for an extension of time, considered the request and sent a detailed response, including this:

   ‘Your request for the Tribunal to delay making its decision until the Department makes a decision about the nomination has been considered. You ceased working for your sponsor, Narnarayan Sayona Pty Ltd, when they were deregistered by ASIC on 3 September 2018. It is acknowledged and accepted that you have tried to find another sponsor since then but, for various reasons, you have been unsuccessful. You provided evidence that a new nomination application was made by Tamarin was made on 2 July 2019, the day before the Tribunal hearing.’

10. In the circumstances, the applicant was informed that the Tribunal would make a decision on or after 24 September 2019 and that no further extensions of time would be granted.  The applicant, from the date of the hearing, was provided with several extensions of time to provide evidence of a nomination, for a period totalling more than two and a half months.

11. At the time of this decision, the Tribunal has received no further communication from the applicant since the last extension of time was requested on 2 September 2019.

12. At the end of the Tribunal hearing, Mr Bhatia said that a nomination application had been made identifying the applicant and confirmed that he had assisted Tamarin lodging the nomination application on 2 July 2019.  No further information has been provided relating to the application. 

13. 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

14. 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.

15. The applicant provided additional documents to the Tribunal; written submissions from her migration agent and a letter from the Department of Home Affairs acknowledging a nomination application (Tamarin) identifying Sarbjit Kaur had been made on 2 July 2019.  The applicant said that the week before the hearing (and the nomination application) she attended an interview in Bathurst with a Mr Kumar for the position of Cook and they accepted her application.  To have a nomination approved, an applicant must have status as a standard business sponsor.  The Tribunal made its own inquiries and confirmed Departmental records indicate that Tamarin was approved as a standard business sponsor on 17 January 2019 for a period of five years, expiring on 17 January 2024.

16. The applicant confirmed at the hearing that Tamarin has, in the 2019 nomination application, nominated her for the same occupation for which her Subclass 457 visa that was granted in 2015, Cook (ANZSCO 351411).

    Does the ground for cancellation exist?

17. 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 visa holder ceases employment with the sponsor that the period during which they cease employment should not be more than 90 consecutive days. Essentially, the applicant needed to find a new nomination during that time.

18. The applicant has made attempts to obtain a new nomination as a Cook, but has not been successful.

19. It is noted in the delegate’s decision, and was confirmed at the Tribunal hearing, that the grounds for cancellation are not disputed by the applicant.    

20. 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

21. 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’.

    Background

22. The applicant is a citizen of India.  She first arrived in Australia holding a student visa, in 2006.  She is married to the second-named applicant and the third-named applicant is their daughter, who was born in India in 2008, remained living there with the applicant’s mother-in-law for about two years, then moved to Australia to be with her parents.  At the hearing, the Tribunal was informed that the applicant has a son, born in September 2017, who is currently residing onshore holding a bridging visa.  The family resides in Sydney, Australia.

23. With regard to the applicant’s work history in Australia, relevant to the review, she was granted a Subclass 457 visa on 2 September 2015, nominated by Narnarayan Sayona Pty Ltd (the sponsor), which would have ceased naturally on 2 September 2019.

24. The sponsor was deregistered by ASIC on 3 September 2018 and the applicant ceased working there because the company closed, although she said she was not sure at the time why they closed.  The Tribunal accepts that the applicant has made dedicated attempts to find a new sponsor to nominate her for a Subclass 457 visa as a Cook, but for various reasons she has not been successful:

    a.In November 2018 a standard business sponsorship application for Shree Neelkanth Pty Ltd The Trustee For Shree Neelkanth Trust was refused and consequently the nomination application that had been made identifying the applicant was withdrawn.

    b.In January 2019, another nomination application was made identifying the applicant, by Limbaj Pty Ltd.  It was refused in February 2019. 

    c.On 2 July 2019, a third nomination application was made, by Tamarin.  There has been no further information provided by the applicant since 30 August 2019 as to the status of Tamarin’s nomination application, at the time of this decision, for example whether it has been granted, refused or withdrawn. 

25. The Tribunal has considered relevant facts and matters on both the Department and Tribunal files, including information contained in the delegate’s decision, together with oral evidence and submissions provided at the hearing.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

26. The applicant originally came to Australia as a student and, in September 2015, was granted a Subclass 457 visa, allowing her to work in a skilled position, Cook, for four years.  The applicant was sponsored by Narnarayan Sayona Pty Ltd.  Their sponsorship ceased when they were deregistered by ASIC, on 3 September 2018, following an investigation by Australian Border Force.

27. When the applicant ceased working for the sponsor, it was a condition of her 457 visa that she not cease employment for more than 90 consecutive days:  cl.8107(3)(b).

28. The purpose for which the applicant was in Australia, to work in the skilled occupation of Cook for the sponsor, ceased no later than 3 September 2018.  Although it is acknowledged that the applicant has tried to obtain a new sponsor, she does not have an approved nomination relating to her Subclass 457 visa.

29. The applicant was the primary visa holder, her husband and daughter held their 457 visas as dependant members of her family unit.  The applicant’s other child, born in 2017, is not included in the application and holds a bridging visa.  The Tribunal accepts that the applicant is highly motivated, and would prefer, to live and stay in Australia.  However, her purpose for remaining in Australia since late 2018 has not been for the purpose for which the Subclass 457 visa was granted.  In the applicant’s circumstances, the Tribunal does not consider there to be a compelling need for her to remain in Australia.

30. The extent of compliance with visa conditions

31. The applicant ceased employment with the sponsor because they were deregistered by ASIC in September 2018.  The applicant claims, and the Tribunal accepts, that she had no control over this situation.  However, despite her best efforts, the applicant has been unable to obtain another sponsorship as a Cook relating to her Subclass 457 visa.  Although there is no information before the Tribunal that the applicant has been otherwise non-compliant with any other visa conditions, she has been non-compliant with condition 8107(3)(b), which the Tribunal considers to be an important condition attached to the visa, as the condition underpins the reason why the visa was granted.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

32. The Tribunal acknowledges and accepts that the applicant and her husband and daughter have resided in Australia for around 10 years and their second child, born in 2017, for about two years.  The applicant’s daughter is in year five and attends school in Blacktown and the Tribunal accepts, as has been submitted, that she is ‘fully accustomed to the Australian way of life.’  The applicant’s husband said he works driving an Uber and he owns a Holden Commodore.

33. The applicant gave evidence at the hearing that her mother, father and sister live in India.  The applicant’s husband said that he has two sisters in India and that his parents have passed away.  They said they do not own any property in Australia.

34. It is reasonable to think that the applicants would suffer some degree of hardship as a result of cancellation and had to depart Australia.  It is accepted that they have lived in Australia for around 10 years and, in the case of the children, for nine and two years.

35. However, they are all citizens of India, their home country and the Subclass 457 visa was a temporary visa with no mechanism for acquiring permanent residency.  The Tribunal considers it reasonable to expect that a temporary visa holder would be aware that they may need to depart Australia at some point.  In addition, the applicant’s 457 visa that was cancelled would have ceased naturally on 2 September 2019, about three weeks ago.

36. The Tribunal accepts that the applicant may be inconvenienced and possibly disappointed at having to depart Australia as a result of cancellation.  However the possibility was not unexpected because the applicant would have been aware that the visa would have ceased on 2 September 2019, in any event.  The applicant and her husband have family in India, they have given evidence indicating they do not own property in Australia (except a car) and the Tribunal, even accepting that repatriating a family can be costly, does not consider that the degree of overall hardship can be seen to be significant.

    Circumstances in which ground of cancellation arose

37. The sponsor was investigated by Australian Border Force and deregistered by ASIC on 3 September 2018.  Condition 8107(3), which attached to the applicant’s Subclass 457 visa, required she needed to be employed in the nominated position.  In her circumstances, essentially, that she need to find another sponsor within 90 days.  She does not have an approved nomination, more than 12 months after ceasing work with the sponsor.

38. There is no suggestion on the Tribunal’s part that the circumstances surrounding her ceasing work with the sponsor were within her control.  The business closed down and she could not and did not work there anymore, no later than 3 September 2019.

    Past and present behaviour of the visa holder towards the department

39. There is no information before the Tribunal that suggests the applicant has been uncommunicative or uncooperative with the Department.

    Whether there would be consequential cancellations under s.140

40. As a result of cancellation, there are two dependant members of the applicant’s family unit whose visas will be cancelled as an automatic consequence:  Harpinder Singh and Harleen Kaur.  The applicant has a second child, born in 2017, who is two years of age and who, the Tribunal was told, holds a bridging visa not related to this 457 matter.  On that basis, the Tribunal is satisfied that cancellation of the applicant’s visa would not directly affect the younger child’s bridging visa status.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

41. The intended consequence of cancellation is that the visa holder is required to depart Australia.  As a result of cancellation, the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removed from Australia under s.198 of the Act if she does not depart or apply for another visa, which may be done only in very limited circumstances.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

42. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

43. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

44. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

1. There is nothing in the applicant's circumstances which prevents these claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for a protection visa by s.48A of the Act, or from being granted one because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456.

2. The Tribunal has considered whether the applicant's circumstances may engage 'non-refoulement obligations' which are broader than the term 'protection obligations' contained in s.36 of the Act. It has also considered claims of harm against which a protection visa would not provide protection (see BCR16 and Goundar v MIBP [2016] FCA 1203).

3. The applicant is a citizen of India. She has resided in Australia for about 10 years. There has been no claim made by the applicant, and there is no information before the Tribunal, that indicates cancellation would be in contravention of Australia's international obligations, including refoulement obligations.

4. The Tribunal has considered the best interests of the applicant’s children (who are both under 18), and any adverse affects that may be suffered by them as a result of cancellation, and had regard to various conventions, including the Convention of the Rights of the Child and the International Covenant on Civil and Political Rights.  Whether the children live in Australia with the applicant (and their father), or return with their parents to India to live, they will remain with their family, that is, there is no apparent need or likelihood that they will be separated from their parents as a result of cancellation or that they will not be able to be educated and assimilate into their Indian culture and language.   

   Any other relevant matters

5. Notwithstanding her attempts to secure a new nomination (and the Tribunal is satisfied that she has tried), on her own evidence the applicant has now not worked for the sponsor since 3 September 2018, a period of more than a year.  While some discretion attaches to the requirement that a Subclass 457 visa holder finds a new sponsor within 90 days, it is the Tribunal’s view that the discretion does not extend to considering that the applicant should be able to remain onshore indefinitely looking for a new sponsor.  Three nomination applications have been lodged identifying her in the occupation of Cook since then.  The first was refused.  So was the second.  The third nomination application was made the day before the Tribunal hearing.  At the conclusion of the hearing, it was requested that the applicant be given more time to await an outcome in the most recent nomination application by Tamarin.  The applicant was told that the Tribunal would delay making a decision in her matter until 17 July 2019, but that it was up to her to ensure that any relevant information is provided about the status of the nomination application lodged by Tamarin on 2 July 2019.  Two extensions of time were granted, giving the applicant more than two additional months in total to provide evidence that she has an approved nomination.  The applicant was told that all information, including any additional information she provided post-hearing, would be carefully considered in making a decision, and that the decision made by the Tribunal may be favourable or unfavourable to her.

6. The Tribunal waited for what it considers to be a more than reasonable amount of time beyond 17 July 2019 – until 25 September 2019 - to be satisfied that the applicant was given a fair opportunity to provide information relating to the Tamarin or any other nomination that may be favourable to her case.  Since the last request for an extension of time was made, on 30 August 2019, relating to progress of Tamarin’s nomination application, the applicant has provided the Tribunal with no further information.

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

   DECISION

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

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

   Jennifer Cripps Watts
   Member