Kaur (Migration)

[2019] AATA 5066

Kaur (Migration) [2019] AATA 5066 (12 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kamalbir Kaur
Mr Swamberjit Singh
Master Agamjit Singh

CASE NUMBER:  1900469

HOME AFFAIRS REFERENCE(S):           BCC2018/4214367

MEMBER:Susan Trotter

DATE:12 July 2019

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 12 July 2019 at 5:26pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Cook – ceased employment with sponsor in excess of 90 days – position no longer exists – incorrect answers given to immigration official – inconsistent evidence – credibility issues – lack of co-operation and dishonesty – multiple previous visas – no compelling or compassionate reasons to remain in Australia – financial hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4), Public Interest Criterion 4020, Condition 8107

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 3 January 2019 made by a delegate of the Minister for Home Affairs to cancel the first-named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The first-named applicant (the applicant) is a 32-year-old citizen of India. She first arrived in Australia in September 2009 as the holder of a student visa and has held a number of further visas before being granted a Subclass 457 visa on 2 June 2015 with a cease date of 2 June 2019, with a sponsoring employer, The Trustee for Sutlej Investments Trust (Sutlej), nominating her to work as a Cook. The second-named applicant is the husband of the applicant and the third-named applicant is their eight-year-old son.

3. On 5 December 2018, a Notice of Intention to Consider Cancellation (NOICC) of the Subclass 457 visa was forwarded to the applicant, to which the applicant responded, via her representative, on 11 December 2018.

4. On 3 January 2019, the delegate cancelled the applicant’s Subclass 457 visa under s.116(1)(b) of the Act on the basis that the applicant ceased employment with the sponsor for a period exceeding 90 consecutive days thus breaching condition 8107 to which the visa was subject. The delegate noted in this regard that the Department had been notified that the applicant ceased employment with the sponsor in March 2018. Further, the delegate concluded that the grounds for cancelling the visa outweighed the reasons for not cancelling the visa.

5. 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 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.

6. The applicants lodged an application with the Tribunal on 8 January 2019.

7. The applicant appeared before the Tribunal on 14 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the second-named applicant, Mr Swamberjit Singh and from the applicant’s brother-in-law, Mr Sukhminder Jit Singh.

8. The applicants were represented in relation to the review.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   ISSUES

10. Under s.116 of the Act, a visa may be cancelled if certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(b) which provides that a visa may be cancelled if a visa holder has not complied with a condition of the visa.

11. In this instance, condition 8107 attached to the applicant’s visa. Specifically, subclause 8107(3) applies because the Department granted the applicant a Subclass 457 visa on the basis that the applicant met the requirements of cl.457.223(4) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

12. At the time of granting the visa to the applicant, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer and, specifically, 8107(3)(b) required that the applicant not cease employment for more than 90 consecutive days.

13. 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.

14. 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’ including:

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

    (b)  The extent of compliance with visa conditions;

    (c)  Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;

    (d)  Circumstances in which ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

    (e)  Past and present conduct of the visa holder towards the Department;

    (f)    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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;

    (g)  Whether there would be consequential cancellations under s.140 of the Act;

    (h)  Whether any international obligations would be breached as a result of the cancellation; and

    (i)    Any other relevant matters.

15. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist?; and, if so,

    (b)  Should the discretion to cancel the visa be exercised?

    CONSIDERATION

    Issue 1 – Does the ground for cancellation exist?

16. The applicant and her representative advised the Tribunal at hearing that it is not disputed that a ground for cancellation of the visa exists; that is, that the applicant ceased employment with her nominating employer for more than 90 days. Based on the evidence before the Tribunal, including as canvassed in the following paragraphs of this decision, the Tribunal is satisfied and finds that the ground for cancelling the applicant’s visa under s.116(1)(b) of the Act exists.

17. As that ground does not require mandatory cancellation of the applicant’s visa under s.116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.

    Issue 2 – Should the discretion to cancel the visa be exercised?

18. 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 PAM3, ‘General visa cancellation powers’ as referred to earlier in these Reasons.

19. The Tribunal had regard to all circumstances in relation to whether to exercise the discretion to cancel the applicant’s visa, including as canvassed in the following paragraphs.

20. The applicant’s evidence before the Tribunal, at hearing and in her statutory declaration dated 13 May 2019, in relation to the circumstances in which the ground of cancellation arose included as follows:

    (a)  Her husband has been in Australia since 2008 and she has been in Australia since 2009. She arrived in Australia as the holder of a student visa. In 2015, she completed a Certificate IV in Commercial Cookery and she was searching for a job as a cook. She saw a job on Gumtree with Sutlej. She applied for the job and went to an interview and got the job. The job was for an Indian restaurant, Singh’s Curry House, which was originally based at Carrara (from March 2015 to March 2017) and which later moved to be located at Southport. She worked at the Southport location from March 2017 to March 2018.

    (b)  In March 2018, the owner of the restaurant told the applicant that he wanted her to keep working for them but the restaurant was closing for renovation. The owner would not give her an exact time frame for how long the restaurant would be closed. Every time she spoke to him, he continued to say that it would be another month or two. She continued to be paid up until August 2018. When queried by the Tribunal she agreed that this arrangement was odd but otherwise offered no explanation as to why she would continue to be paid until August 2018 when she had finished working in March 2018.

    (c)  When queried as to what then happened in August 2018, the applicant stated that she received a call from Immigration and she was shocked. The lady from Immigration asked if she was working at the restaurant. She (the applicant) responded yes. The Immigration lady said that no she was not there because they had been to the restaurant the day before and the guy they met there said he did not know about her. She started crying because the owner had told her he would manage everything and she did not know what was happening. She (the applicant) then said she had worked there up until March 2018.

    (d)  When queried as to why she had said she had been at work the day before if she had not been, the applicant said she had just been so upset because the lady from Immigration said the restaurant is not running. She was shocked because the owner had told her the restaurant had been closed and Immigration had been there and seen another guy there. She said she went to the restaurant every day for just a few seconds to see if it was open. The Tribunal queried as to whether the applicant had gone to the restaurant every single day. The applicant stated that she had gone some days. The Tribunal noted that it was one thing to say that she had been to the restaurant on some days and another thing to say to Immigration that she had worked there the prior day. The Tribunal queried the applicant as to why she had told the Immigration lady she worked there the prior day when she had not. The applicant responded it was her mistake. She said she was wrong at that time. She was in shock. She was upset. She does not know why the guy at the restaurant said that he did not know her because he had been working at the restaurant at the same time and he did know her. He got his permanent residency before her from the same restaurant. She then said to the Immigration lady that she was sorry and she had been working there to March. The Immigration lady said that the owner had changed and the restaurant was with the new owner and she (the applicant) said she did not know about that.

    (e)  After talking to the Immigration lady, the applicant then contacted her migration agent because she is totally dependent upon her. Her agent told her that the restaurant had closed and the company was not running. When she asked the agent to let her know what was happening, the agent said it was not her fault. When queried as to when this contact happened, the applicant said she called the agent when she received the call from Immigration.

    (f)    When queried as to the last conversation she had had with the owner prior to being contacted by Immigration in August 2018, the applicant responded that she would call him one or two times every day but he would not reply to that. This had been for three or four weeks.

    (g)  The Tribunal clarified with the applicant what the wrong information was that she told the Immigration lady. The applicant stated that the wrong information was that she had worked there the night before. She had not. The Tribunal queried whether that was all of the wrong information that she had provided to the Immigration lady. The applicant responded that was the only wrong information she had provided. The Tribunal asked the applicant whether she was sure that that was the only wrong information she had provided. The applicant responded that that was the only wrong information she had said.

    (h)  The Tribunal then put some information to the applicant pursuant to s.359AA of the Act. The Tribunal stated to the applicant that it had some information that it had to tell the applicant before it asked her some questions and that it would give the applicant an opportunity to respond to or comment on that information. The Tribunal stated that it was going to put some information to the applicant that would, subject to the applicant’s comments or response, be the reason or part of the reason, for affirming the decision under review to cancel the visa. The Tribunal indicated it would explain the information and its relevance and ask the applicant if she wished to respond to or comment on the information. The Tribunal advised the applicant that she was entitled to seek additional time to respond to or comment on the information and if she wished to do so, she should let the Tribunal know so that the Tribunal could consider her request, or alternatively she could respond straight away.

    (i)    The Tribunal stated that it had information from the Department’s file in relation to an application for another visa that the applicant had made. The information was that the applicant was contacted on 24 August 2018 and that the applicant had advised that she had last worked at the restaurant the previous night. The information includes that the Immigration officer is then recorded as having cautioned the applicant about providing false and misleading information and the applicant then advised that she had worked at the restaurant the previous night as well, the night before and the previous night. The Immigration officer is then recorded as having reliable information that the applicant had not worked at the restaurant since March 2018 and the applicant then confirmed that that was correct.

    (j)    The Tribunal noted that the reason that information was relevant was, firstly, because the information was different to the applicant’s evidence at hearing to the Tribunal. The Tribunal noted that it had asked the applicant what mistake she had made when she responded to the Immigration officer and the applicant had said that it was just the information that she had worked at the restaurant the night before. The Tribunal noted it had given the applicant an opportunity to confirm that that was the extent of what she had said incorrectly as a mistake. Secondly, the Tribunal noted that the information is also relevant because the information was not correct, as the applicant now acknowledges, because she had not worked at the restaurant since March 2018. The Tribunal indicated that these matters might cause the Tribunal to question what it can believe of what the applicant says, that it might cause the Tribunal to question whether in fact the applicant will give answers to questions asked of her consistent with what she sees as being the right answers to give in relation to her immigration status in Australia, and that it might cause the Tribunal to question what can be believed or what weight or reliance can be put on the applicant’s evidence in circumstances where she has given wrong information to the Department. The Tribunal noted that these concerns go to not just the ground of cancellation but also the Tribunal’s consideration of the factors to be considered regarding whether the discretion to cancel the visa should be exercised.

    (k)   The applicant indicated that she understood the information, that she understood why the information was relevant and that she wished to respond to or comment on the information then and there. The applicant stated that she realised she was wrong because she (the Immigration officer) said are you sure that you worked there the prior night and the night before that and she said that the applicant was wrong because they went there the day before. The applicant said that she then said she was sorry because she had not worked there after March 2018. She was stressed and it was a mistake but she is otherwise not able to give an explanation as to why she gave incorrect answers. The Tribunal asked the applicant whether she appreciated that her answers might impact upon her visa status. The applicant responded ‘yes’. The Tribunal asked the applicant what she understood the conditions of the visa were at that time. The applicant responded that she did not have any idea that Immigration had come to the restaurant because according to the owner she was working there and he had said to her that if Immigration came they would contact him not her, because he was responsible for everything because he was sponsoring her and gave her the job. The Tribunal again queried the applicant as to what she understood the conditions of the visa to be. The applicant responded that she understood that she had to inform Immigration if anything happened but the reason that she did not contact Immigration was because her file was open in March for permanent residency and her agent rang asking for papers for that. Then every week or two, she called the migration agent and she was the main person that she was contacting. The Tribunal again asked the applicant as to her understanding of the visa conditions that attached to the Subclass 457 visa when it was granted. The Tribunal noted that the applicant had previously advised the Tribunal that when she was granted the Subclass 457 visa, her migration agent had emailed her all the documents from the Department. The applicant stated that she understood that she had to work with that company and that there were limited hours to work with them and that she could not leave her job up to 90 days. The Tribunal suggested to the applicant that as at August 2018 she was well aware that she had left her job for more than 90 days. The applicant indicated that she did not know whether it was 90 days. She had asked her agent and the agent said that it was not yet 90 days and that she still had time to find a new sponsorship. The Tribunal queried when she was told that by her agent. The applicant indicated that the agent had advised her of that in an email of 11 October 2018. The Tribunal put to the applicant that as at August 2018, more than five months after she left her job in March 2018, she would have known that it was more than 90 days, and asked whether that was why she lied to, or made a mistake, with Immigration. The applicant said that she did not know about that because her migration agent told her on 16 March 2018, when her file was opened for the purpose of her permanent resident visa, that she would get the decision in three or four months. The applicant then stated that in August 2018 she did not know about the requirement to not be employed for more than 90 days with her employer.

    (l)    The Tribunal then therefore put some further information to the applicant pursuant to s.359AA of the Act. The Tribunal stated to the applicant that it had some information that it had to tell the applicant before it asked her some questions and that it would give the applicant an opportunity to respond to or comment on that information. The Tribunal stated that it was going to put some information to the applicant that would, subject to the applicant’s comments or response, be the reason or part of the reason, for affirming the decision under review to cancel the visa. The Tribunal indicated it would explain the information and its relevance and ask the applicant if she wished to respond to or comment on the information. The Tribunal advised the applicant that she was entitled to seek additional time to respond to or comment on the information and if she wished to do so, she should let the Tribunal know so that the Tribunal could consider her request, or alternatively she could respond straight away.

    (m) The Tribunal stated that the information before it was that when the Subclass 457 visa was granted to the applicant, there was a letter to the applicant from the Department dated 2 June 2015 which on the applicant’s evidence was emailed to the applicant from her agent. The Tribunal noted that the letter sets out a number of matters including the date the visa was granted, the nominated occupation, the postcode of where the employment would be, the salary and other information of that nature. It was also noted that one of the conditions to which the visa would be subject was condition 8107. The following words were also included in the letter:

    If you stop working for your sponsor, you must do one of the following within 90 days of ceasing employment:

    ·     find another employer who is willing to nominate you

    ·     apply for another type of substantive visa

    ·     make appropriate arrangements to depart Australia.

    If more than 90 consecutive days have passed since the date you ceased employment, you may be in breach of condition 8107 and may have your visa cancelled.

    (n)  The Tribunal noted that the reason that information was relevant was because, firstly, the applicant has suggested in evidence that she was not aware of that requirement until October 2018 but in fact that information was notified by the Department in June 2015, and the applicant has confirmed that she received the visa grant notice and information from her agent at the time of grant. The Tribunal indicated that when taking that into account, together with the incorrect information provided to the Department in August 2018, the Tribunal might have concerns in relation to the applicant’s behaviour towards the Department and the circumstances in which the ground of cancellation arose, that would weigh in favour of exercise of the discretion to cancel the visa.

    (o)  The applicant indicated that she understood the information and she understood why the information was relevant. When queried as to whether she wished to respond to or comment on the information, the applicant’s representative submitted on behalf of the applicant that there was an email from the applicant’s migration agent dated 14 October 2018 which refers to the sponsor’s business having being closed down and indicating that the applicant needed to remain sponsored and working as a cook if the applicant wished to remain in Australia. The representative submitted that usually you get 90 days from the date of termination to find another job, and the applicant had not been legally terminated. The Tribunal noted and accepted the contents of the applicant’s agent’s letter of 14 October 2018. However, the Tribunal rather noted that its concern is that the information before it was that the applicant knew from the time that the visa was granted that she could not remain unemployed for more than 90 days, and in conjunction with the incorrect information given to the Department on 24 August 2018, the query arises as to the motive for the applicant giving wrong information to the Department on 24 August 2018, which would seem to be related to knowledge of the requirement to not be unemployed for more than 90 days. The Tribunal noted that it had no evidence before it of when the applicant’s position was terminated and that the evidence before it, the applicant’s oral evidence, was that she stopped working for the sponsor in March 2018 and that in all the circumstances there would have been questions in the applicant’s mind about this condition of the visa and that she would have had concerns from March 2018. The applicant agreed she did have concerns in that regard from March 2018.

    (p)  The Tribunal noted that it might hold a concern, similar to the concern raised by the delegate, that the applicant was aware of the condition of the visa that she must not be unemployed for more than 90 days, and that as at 24 August 2018, regardless of what advice she might have received from her migration agent, and regardless of whether there had been an official termination or not, and regardless of whether the applicant was continuing to be paid, the applicant would have been aware that she had ceased working. The Tribunal suggested that the applicant would have reasonably realised that her having ceased to work for the sponsor in March 2018 could impact upon her eligibility to continue to hold the Subclass 457 visa, such that initial answers she provided to the Department on 24 August 2018 was incorrect information with a view to obtaining a certain migration outcome in Australia. The Tribunal indicated that all of these matters are relevant to the Tribunal’s consideration of the circumstances in which the ground for cancellation arose and again indicated to the applicant that she could seek an adjournment or further time to respond.

    (q)  The Tribunal then adjourned the hearing to enable the applicant to confer with her representative.

    (r)   Upon recommencement of the hearing, the applicant stated that she was sorry, that it was her mistake that she was lying to Immigration but that she was not expecting to receive a call from Immigration asking about her employment. She said whatever came in to her mind and she said she was sorry.

    (s)  The Tribunal noted that it accepted that whilst the applicant initially responded incorrectly, the applicant then did agree that she had not worked with the sponsor since March 2018.

    (t)    The Tribunal also discussed with the applicant, as canvassed in her statutory declaration of 13 May 2019, that the applicant had made other attempts to obtain nominations with other employers. The Tribunal asked the applicant what she had otherwise been doing since March 2018. The applicant stated that since March 2018, she has not worked in Australia. She has been looking after her son. She said that her employer did, however, continue to pay her until August 2018. She stated that her husband had been working as a Manager of a Night Owl store, a family store that he runs with his brother.

    (u)  The applicant confirmed, as also stated in her 13 May 2019 statutory declaration, that she and her husband had contributed monies in the vicinity of $165,000 towards what were seen as family businesses owned by her husband and his brother, a BP and Night Owl at Southport and a Night Owl at Surfers Paradise. The applicant said the businesses were in her brother-in-law’s name legally but that they were family businesses, a partnership between her husband and his brother. The applicant stated that money was transferred to her brother-in-law when the Night Owl was purchased in Surfers Paradise in 2017. The applicant stated that her brother-in-law owes the money to her and her husband but that there is no documentation evidencing that debt between her brother-in-law and her husband. The applicant stated that her brother-in-law would be able to explain more but that her understanding is that she and her husband contributed $165,000 towards the purchase of the Night Owl in Surfers Paradise and that the two businesses are in reality owned in equal shares between her husband and his brother. Further, it is her understanding that if the visa is cancelled, they would have to leave Australia, her brother-in-law would have to repay the $165,000 and that would then create difficulties for the business. The Tribunal noted that there is reference in the applicant’s statutory declaration to the two businesses being worth $1.45 million and that her and her husband’s contribution of $165,000 entitled them to a 50% share in the businesses. The applicant confirmed her understanding is that her husband contributed $165,000 to the two businesses, which he received from his parents, and that whatever the legalities might be, her husband has a 50% share in the businesses.

    (v)   The applicant confirmed that if the visa is cancelled, it will affect her brother-in-law’s business and therefore the employment of Australian citizens in those businesses.

    (w) The applicant told the Tribunal that they have been in Australia for 10 years and they have used the monies they had saved in India towards the businesses in Australia and they have nothing left in India. She said some of the monies were their savings and some of the monies were from her husband’s parents.

    (x)   The applicant also discussed with the Tribunal that her son is now in Grade 3 and referenced his very good report card for Grade 2. She also discussed with the Tribunal that, as also referred to in her 13 May 2019 statutory declaration, her son was born in Australia and has an allergy for which treatment is not available in India such that he will be adversely impacted if he had to return to India.

    (y)   The Tribunal also discussed with the applicant that one of the matters to which it has to have regard is the purpose of the applicant’s stay and travel in Australia and that a Subclass 457 visa is not a visa pursuant to which a visa holder can stay permanently in Australia and that it does not guarantee in any way that a visa holder can stay permanently in Australia. The Tribunal noted that its purpose is to enable a business to sponsor a skilled worker if they cannot find an Australian citizen or permanent resident to fill that position. The Tribunal noted that the applicant was employed as a Cook and that that job no longer exists with her former employer such that the purpose of the Subclass 457 visa no longer exists. The Tribunal noted the applicant had also provided information in relation to other visas that she had sought and that despite a number of subsequent previous nominations on her behalf, there were no other current applications or nominations in relation to her.

    (z)  The Tribunal discussed with the applicant that, as canvassed in her 13 May 2019 statutory declaration, she has indicated that she has a number of options to apply for other visas, including a new Subclass of visa in November 2019. The Tribunal canvassed why any other visa applications would be any different to previous unsuccessful applications. The applicant stated that she has the qualifications related to her job and she therefore has options related to that and for a bright future for her son and her family and she just needs mercy. The Tribunal noted that the applicant had already explored options with other employers. The applicant said that had not been her fault. She had just applied for those other jobs on Gumtree and those employers were having problems with Immigration and that was not her fault.

    (aa)    The Tribunal discussed with the applicant the information in her 13 May 2019 statutory declaration that by 12 December 2018 she was offered a cooking position at the Tandoor Restaurant on the Gold Coast and was advised that they had an approved sponsorship but the nomination was then refused with a second nomination also refused on the basis of bad information about the sponsor. The Tribunal asked the applicant what she meant by that or what she understood that to mean. The applicant said that in June 2017, her migration agent applied for an ENS visa for her because she had completed her two years’ work. When queried as to what happened with that visa application, the applicant said that that application was not refused but was rather cancelled.

    (bb)    The Tribunal then put some information to the applicant pursuant to s.359AA of the Act. The Tribunal stated to the applicant that it had some information that it had to tell the applicant before it asked her some questions and that it would give the applicant an opportunity to respond to or comment on that information. The Tribunal stated that it was going to put some information to the applicant that would, subject to the applicant’s comments or response, be the reason or part of the reason, for affirming the decision under review to cancel the visa. The Tribunal indicated it would explain the information and its relevance and ask the applicant if she wished to respond to or comment on the information. The Tribunal advised the applicant that she was entitled to seek additional time to respond to or comment on the information and if she wished to do so, she should let the Tribunal know so that the Tribunal could consider her request, or alternatively she could respond straight away.

    (cc)    The Tribunal stated that it had information before it in the form of an email that the applicant had received advice from her migration agent to withdraw her permanent visa application because of the implications of the incorrect information she provided to the Immigration officer on 24 August 2018 and because of the issues that might create in relation to what is known as Public Interest Criterion 4020.

    (dd)    The Tribunal noted that the reason that information was relevant was because the applicant had raised with the Tribunal that she had tried to get other nominations and a permanent visa and none of it had been her fault. It was all the fault of the various employers. However, the Tribunal noted that one of the applications was withdrawn on the advice of her agent because of the potential issues arising from incorrect information that she provided such that the Tribunal might not put weight on her submission that nothing was her fault.

    (ee)    The applicant indicated that she understood the information and that she understood why the information was relevant. The applicant indicated that she wished to respond immediately and she again repeated that it was her fault that when she received the call from Immigration that she gave them wrong information and that was because she was very upset and reference was made to the matters raised earlier in her evidence in relation to the same matters.

    (ff)  The Tribunal therefore noted that the position for which the Subclass 457 visa was granted no longer exists and that, as discussed, whilst holding a Subclass 457 visa might have been a way towards obtaining a permanent visa, holding a Subclass 457 visa was not a guarantee of obtaining a permanent visa.

    (gg)    The Tribunal discussed with the applicant that it might well accept all of the matters raised by her in her favour in considering whether to exercise the discretion to cancel the visa, but that it might consider those matters outweighed such that the Tribunal might conclude that the visa should be cancelled, including because of the circumstances in which the ground of cancellation arose, the applicant’s at least initial lack of co-operation with the Department, the other opportunities the applicant has had to seek permanent residency, and the decisions made by both her and her husband, and her brother-in-law in relation to the businesses being made in circumstances where there was no certainty of visa outcome for her or her husband in Australia. The Tribunal asked the applicant if there were any other matters that she wished to raise. The applicant said that she just wants one chance because she has qualifications and she wants to do a job to make her future bright and raise her son here and give him a bright future and she wants the chance to get rid of what happened before with her.

1. The second-named applicant’s evidence before the Tribunal included as follows:

   (a)  The BP/Night Owl business in Southport and the Night Owl business in Surfers Paradise are the businesses of both him and his brother. He sold land he owned in India to contribute money to the businesses but because he was not an Australian citizen, and because of the franchise requirements, the businesses had to go legally in his brother’s name.

   (b)  The Night Owl at Surfers Paradise was purchased in April 2016 and the Southport business was purchased in May 2017. The businesses are worth in the order of $1.4 million and he contributed $95,000 and $165,000 towards the businesses and he has a 50% share in the businesses with his brother.

   (c)  When queried as to the calculation of 50% share in the businesses, given his contributions, the second-named applicant stated that his brother also utilised loan monies from the bank. The difference between what he contributed to the purchases of the businesses was made up from monies from his brother and loans from the bank.

   (d)  When queried as to the current arrangements in relation to the income from the businesses, he stated he is not taking any pay. Whatever money his brother takes from the business, the same amount is transferred to his account. They use the same business card to pay all expenses. He therefore agreed that he is not being paid any wage but gets his share of profits from the business and all his expenses are paid from the business. He stated that he is not currently working because his work rights have been cancelled but that he previously worked five or six days a week.

   (e)  He sold his property in India (which was his share from property from his parents) and that money was used for the businesses with his brother. If the visa is cancelled, and he and his family have to return to India, his brother would have to pay his money back. He has been in Australia for 11 years and he has spent all his time and money here trying to do the right thing according to Australian laws.

   (f)    The Tribunal discussed with the second-named applicant, that at the time of making all of the arrangements discussed in relation to the businesses, including when making a decision to invest his monies in Australia, he was only the holder of a temporary visa and there was never a guarantee he would get a permanent visa. He said that he was hopeful of getting a permanent visa and thought that would happen.

   (g)  In terms of the businesses, if the visa is cancelled, if he is not staying in Australia, he will have to ask his brother for the money he invested. His brother might have to sell the business. He has discussed with his brother if that happens. His brother would have to pay him according to the business value. It would be more than what he originally paid because the businesses’ value has definitely increased. That might mean job losses if the business had to be sold.

   (h)  The second-named applicant asked that they be given one chance because everything they have is here and has been invested here.

2. The applicant’s brother-in-law’s evidence before the Tribunal included as follows:

   (a)  If the visa is cancelled, he would have to sell the businesses to return the monies invested by his brother. The value of the businesses has increased so he will have to return more than the monies invested. Even though the value of the businesses will have increased, the businesses will have to be sold at a loss. When queried as to why the businesses would have to be sold at a loss, he stated that the businesses will have to be sold urgently and that will mean being sold at a low price. When queried as to why the businesses would have to be sold urgently, he stated that if his brother was going back (to India), he would need the money.

   (b)  The Tribunal stated that according to his brother, the businesses are currently paying his brother’s expenses and providing money to him. The Tribunal therefore queried why his brother could not continue taking whatever share he is currently taking from the business to be transferred to him in India, pending any required sale in the normal course, rather than an urgent sale. Mr Sukhminder Jit Singh responded that that can’t happen because his brother contributed to the business.

   (c)  His parents are retired in India. They have a family home in India. They have two children, him and his brother.

   (d)  If the visa gets cancelled, it puts him in trouble as well because he does not want to sell and other people who have jobs might be affected. The Tribunal noted that other people’s jobs might be affected. If the business is sold, they may or may not be continued as employees.

   (e)  The Tribunal discussed with Mr Sukhminder Jit Singh if it was fair to say that at the time decisions were made in relation to the business, and the arrangements made with his brother, he was aware that his brother and his wife had temporary visas and did not have permanent visas.

3. The applicant’s representative submitted that it was supported that Mr Sukhminder Jit Singh is holding a 50% share of the business in trust for the second-named applicant and that proof of the bank transfer of the monies by the second-named applicant can be provided. He also suggested that a declaration of trust can also be provided. The Tribunal indicated that it may accept those matters on the oral evidence and might put significant weight on those matters but that it might not be determinative in the applicant’s favour. In this regard the Tribunal noted that both Mr Sukhminder Jit Singh and his brother had voluntarily entered into business arrangements, which are now asked to be taken into account as factors as to why the visa should not be cancelled, in circumstances where they were both well aware the second-named applicant was on a temporary visa and there was no guarantee of a permanent visa. It was submitted that at the time the business arrangements were made, everything was looking hopeful in terms of the applicant and the second-named applicant obtaining permanent visas and that Mr Sukhminder Jit Singh himself had been sponsored by an employer and he was successful in obtaining permanent residency.

4. It was suggested to the Tribunal that it may also wish to take evidence from the third-named applicant, the applicant’s eight-year-old son. As discussed with the applicant and her representative, the Tribunal did not consider it necessary or appropriate to take evidence from such a young child in circumstances where the Tribunal accepted that the applicant’s son was born in Australia, is well assimilated in Australia, has the allergy conditions as supported by the medical and other evidence and asked whether there was anything additional that the third-named applicant could add. The applicant’s representative indicated that there was nothing further that the third-named applicant could add and in those circumstances the Tribunal did not take evidence from the third-named applicant.

5. It was submitted that circumstances and factors in favour of not exercising the discretion to cancel the visa outweigh the circumstances and factors in favour of exercising the discretion to cancel the visa. It was submitted that the critical part is the state of mind at the critical time, and the applicant relying upon the expert advice, the agent’s advice. When there was a notice of intention to consider cancelling the visa, the applicant took the migration agent’s advice to withdraw the ENS (Subclass 186 permanent) visa application. The Tribunal noted that the applicant then had further opportunities with other employers, which were to no avail. The applicant’s representative advised that the issue in relation to those nominations were not matters within the control of the applicant, and there were allegations against that employer resulting in those nomination applications being refused.

6. The Tribunal again discussed with the applicant’s representative that the Tribunal might accept everything submitted on behalf of the applicant and still might conclude that the discretion to cancel the visa should be exercised having regard to factors weighing in favour of exercising the discretion to cancel the visa.

7. The applicant’s representative submitted that what was being balanced was 50/50 and what was needed was the ‘magical 1%’ and that the third-named applicant’s medical condition, could tip over the 1%. The Tribunal discussed with the applicant’s representative that it was not acknowledged that the factors were balanced at 50/50 or that figures could even be assigned to various factors in these matters, nor that the third-named applicant’s medical condition was a ‘magical 1%’. The applicant’s representative sought that the Tribunal exercise compassion, including because of the applicant and the second-named applicant having spent over one-third of their lives in Australia, and the third-named applicant having two years before he could apply for citizenship, which would then enable the applicant and the second-named applicant to apply for contributory parent visas. The Tribunal discussed the medical evidence about the third-named applicant’s allergy condition and the suggestion that he would not be able to live in India with the pollution and climate issues which triggered the allergy issues. The Tribunal noted that the applicant suggests that visiting India in 2014 triggered the third-named applicant’s allergy issue but noted that there was no medical evidence to that effect. The applicant’s representative suggested that the Tribunal might require further medical reports. The Tribunal indicated that it was a matter for the applicant if she wished to provide further medical evidence but that factor was not in any event necessarily determinative no matter what the medical evidence states, and rather would be a factor to be taken into account together with all other matters. The Tribunal indicated that it would nonetheless take into account any further evidence including medical evidence, that was before it prior to the time of making its decision. The Tribunal agreed to not finalise the decision prior to 24 hours after the completion of the hearing to enable the applicant to provide further evidence for the consideration of the Tribunal if she wished. The Tribunal again repeated that such further evidence, if forthcoming, would not necessarily be determinative. The Tribunal notes that further medical and other evidence in relation to the third-named applicant’s medical condition was received by the Tribunal on 17 and 22 May 2019. The Tribunal accepts based on this evidence that air pollution is an issue in Delhi (and in India generally), that the third-named applicant is currently receiving desensitisation treatment for his allergies in Australia which will be needed for another 12 to 18 months, and, that air pollution is problematic for people with underlying respiratory problems and that while the third-named applicant’s condition is primarily in relation to house dust mites, he may experience worsening of asthma-like symptoms when exposed to high levels of air pollution.

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

   and

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

8. The applicant’s evidence to the Tribunal, including in a statutory declaration dated 13 May 2019 in evidence before the Tribunal, included that she arrived in Australia on 24 September 2009 as the holder of a student visa and held a number of student visas and undertook various study prior to being granted the Subclass 457 visa, the subject of this application, in June 2015. The purpose of the applicant’s travel and stay in Australia was therefore initially to undertake studies and subsequently was to work as a Cook for her nominating employer, Sutlej.

9. The Tribunal first considered whether the applicant’s proposed continued stay in Australia is consistent with the purpose of the 457 visa scheme, which scheme was superseded from 18 March 2018.

10. A 457 visa is not one under which the visa holder can stay permanently in Australia to establish him or herself, and it does not create an expectation of a permanent stay. The purpose of the 457 visa scheme was to enable a business to sponsor a skilled worker if it could not find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations under the Australian and New Zealand Standard Classification of Occupations (ANZSCO). The 457 visa is one of limited duration related to working for a particular sponsor in a skilled occupation. The purpose of a 457 visa is not served by allowing an applicant to remain in Australia to study, train for a particular career, look for employment opportunities, or improve their financial position.

11. A number of submissions were made in relation to compelling and compassionate circumstances of the applicant. As discussed with the applicant and her representative at hearing, the Tribunal considered these matters, framed as compelling and compassionate, as regards the degree of hardship that may be caused to the applicant and any family members.

12. The applicant submits that she has a compelling need to remain in Australia including because her husband has been here since 2008, she has been here since 2009, her son was born here in 2011, they are settled in Australia and have never been in trouble with the law and the visa cancellation will cause them a lot of grief and hardship. It is submitted that visa cancellation will impact upon the applicant’s son’s health, will impact on family businesses and job losses in Australia and will mean a ban on all future visa applications for a period of three years.

13. The applicant’s son is in Grade 3 at school at Surfers Paradise and his report card for Grade 2 in evidence before the Tribunal shows he has good results. The Tribunal accepts the evidence before it that the applicant’s son is well assimilated into Australia, knows no other life than in Australia, has many friends in Australia and does not know anyone in India other than family members, and, further, that if the applicant’s son remains in Australia, he will qualify for Australian Citizenship after 2 May 2021.

14. The Tribunal accepts, as canvassed in the applicant’s statutory declaration of 13 May 2019, that the third-named applicant became sick while visiting India in 2014 and was not able to be diagnosed there but has subsequently been diagnosed with severe, persistent allergic rhinitis and asthma. The Tribunal further accepts that the generally acknowledged pollution issues in India will likely have a negative impact on these health conditions for the third-named applicant.

15. Further, the applicant submits that she and her husband have contributed monies towards the purchase of two businesses on the Gold Coast with her husband’s brother, albeit that the businesses have been purchased in Mr Sukhminder Jit Singh’s name only due to advice received as to the unwillingness of the bank to provide loans if the shareholders, directors or beneficiaries of the business were non-citizens of Australia. It was submitted that the applicant’s brother-in-law holds his share in the businesses in trust and if the applicant and her husband have to leave Australia, it will require the applicant’s brother-in-law to repay the monies, plus the expected increase in value of the businesses, possibly requiring sale of the businesses by Mr Sukhminder Jit Singh. For the reasons discussed with Mr Sukhminder Jit Singh at hearing, as canvassed in paragraph 22(b) of these Reasons, the Tribunal does not accept that an urgent sale will be necessitated. Nonetheless the Tribunal accepts that cancellation of the visa will result in hardship to the applicant, the second-named applicant and Mr Sukhminder Jit Singh and his family as regards forced changes and likely sale of the businesses in less than ideal conditions and against their planned continued operation of the businesses together.

16. Having had regard to all of these matters, the Tribunal accepts that cancellation of the visa will therefore result in not insignificant financial, psychological, emotional and other hardship to the applicant, the second-named applicant and the third-named applicant and also to Mr Sukhminder Jit Singh and his family, and the Tribunal acknowledges that hardship in considering whether the discretion to cancel the visa should be exercised. However, the Tribunal is not satisfied that those matters amount to a compelling need for the applicants to remain in Australia. Further, as discussed as a concern at hearing, the Tribunal places significant weight in favour of exercising the discretion to cancel the visa on the fact that the purpose for the visa, to enable Sutlej to sponsor a skilled worker to fill a position, no longer exists.

    The extent of compliance with visa conditions and co-operation with the Department

17. There is no evidence before the Tribunal that the applicant has breached any visa conditions other than condition 8107 the subject of this review.

18. The Tribunal discussed with the applicant at hearing matters relating to her co-operation with the Department. As already canvassed the Tribunal put to the applicant[1] information before the Tribunal in the Department’s file in relation to contact an officer of the Department had with the applicant on 24 August 2018. In particular, the Tribunal noted that the information included that the applicant initially provided incorrect information to the Department in stating that she had worked for the nominating employer on the previous night and on the night prior to that night. The Tribunal acknowledges the applicant’s contrition in relation to these actions and the concerns and emotional state that the applicant held at that time in relation to her visa status. Nonetheless, the Tribunal considers this lack of co-operation and dishonesty with the Department weighs against the applicant and in favour of exercising the discretion to cancel the visa.

    Circumstances in which ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

    [1] Pursuant to s.359AA of the Act

19. Having had regard to the applicant’s evidence, and the concerns raised by the Tribunal with the applicant, and her responses, the Tribunal is satisfied that the applicant was well aware of the condition attaching  to the Subclass 457 visa that she not cease employment for more than 90 consecutive days and that she was in breach of this visa condition. It may well be that the applicant was acting on the advice of her migration agent, and thought that she was doing all things necessary to obtain a permanent visa. However, that does not relieve the applicant of complying with the conditions of her visa or making other arrangements, as outlined in the visa grant letter which she acknowledged she received from her agent. The applicant’s initial responses to the Immigration officer when contacted on 24 August 2018 support her awareness of her breach of the visa condition and her understanding of the possible consequences of that. The applicant did not explain why it was that she continued to be paid until August 2018 despite ceasing work for the sponsor in March 2018. She agreed with the Tribunal that that course of action might be seen as ‘odd’. The Tribunal does not accept that the applicant was continually in contact with her sponsor about what was happening with the job. Her initial response to the Tribunal was that she contacted the sponsor every day and visited the restaurant every day to see what was happening. She then resiled from this evidence. It is not clear on the evidence exactly what the arrangements were between the applicant, her sponsor and/or her migration agent. The applicant, although aware of her obligation to keep the Department advised of such a change not only did not advise the Department, but initially lied to the Immigration officer when questioned. Having had regard to all matters, the Tribunal does not consider that the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. The Tribunal places significant weight on the circumstances in which the ground arose as weighing against the applicant’s favour in considering whether the discretion to cancel the visa should be exercised.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

1. The applicants are currently on bridging visas because of this review process. In the absence of the applicants making other successful visa applications, or the Minister granting them a visa, ultimately they will not have authority to remain in Australia. If so, the applicants will have the option to depart Australia. Whilst their continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

2. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which do not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicants whilst onshore. The Tribunal has taken that potential limitation into account. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program.

3. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

   Whether there would be consequential cancellations under s.140 of the Act

4. The Tribunal accepts that the cancellation will result in the consequential cancellation of the second-named and third-named applicants’ visas. The Tribunal has considered their circumstances at length in considering the hardship that would be occasioned to the applicant and her family if the visa were to be cancelled. Nonetheless, consequential cancellations occur as a matter of law and the Tribunal places no weight on such consequential cancellations one way or another, other than in relation to hardship to the persons involved as otherwise addressed, in considering whether the discretion to cancel the visa should be exercised.

   Whether any international obligations would be breached as a result of the cancellation

5. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR).

6. It was submitted that it would be in the best interests of the third-named applicant, an eight-year-old child, consistent with CROC, that the visa not be cancelled including because of the third-named applicant’s birth in Australia, his assimilation into the Australian community, his eligibility for Australian citizenship in 2021, his lack of awareness of life in India other than on short visits, his lack of friends or other persons known to him other than family in India and his health issues which will likely be worsened in India. The Tribunal places weight on these matters in considering whether the discretion to cancel the visa should be exercised and has also considered these matters in terms of hardship as addressed earlier in these Reasons.

7. However, the Tribunal is not satisfied that Australia will breach any international obligations as a result of the cancellation.

   Any other relevant matters

8. As discussed at hearing, and as already canvassed in these Reasons, the Tribunal notes that the applicant, the second-named applicant and Mr Sukhminder Jit Singh have made certain decisions in relation to their financial, business and other arrangements in full knowledge that the applicant and the second-named applicant were only temporary visa holders and although, understandably hopeful, those decisions were made in full knowledge that the applicants were not guaranteed permanent visas. The Tribunal does not consider that consequences flowing from such decisions in those circumstances, should then be expected to be held in the applicants’ favour. These concerns were discussed with the applicant, the second-named applicant and Mr Sukhminder Jit Singh at hearing.

   Conclusion

9. The Tribunal has placed substantial weight on the hardship that would impact her, the second-named applicant, the third-named applicant and Mr Sukhminder Jit Singh and his family should the visa be cancelled. Factors contributing to this hardship have been addressed at length in these Reasons and include the applicants’ long-term residence in Australia, the third-named applicant’s birth in Australia and eligibility for citizenship in Australia in 2021, the third-named applicant’s allergy and medical issues which would likely be adversely impacted in India and the likely cessation of his medical desensitisation treatment in Australia, the issues associated with the businesses owned by the second-named applicant and Mr Sukhminder Jit Singh and the resulting possible sale required if the visa was cancelled so that the second-named applicant could be paid his share of the business, the possible impact of that sale upon Mr Sukhminder Jit Singh and his own family and possible impact upon employees of the business.

10. However, importantly the Tribunal also places significant weight upon the purpose of the visa. The applicant ceased working for the Subclass 457 sponsor and employer in March 2018. It is not clear what the arrangements were such that the applicant continued to be paid until August 2018. In any event, the purpose of the visa was to enable a business to sponsor a skilled worker where they could not find an appropriately skilled Australian citizen or permanent resident to fill the position. That position no longer exists and the Subclass 457 visa is one of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal also places significant weight in favour of exercising the discretion to cancel the visa on the applicant’s conduct in lying to the Immigration officer in relation to her circumstances. Whilst understandable that she had concerns about her immigration status, and may well have been relying on advice from her then migration agent and expecting a permanent residency outcome, it is of concern that the applicant not only did not keep the Department advised as to her circumstances but provided false information to Immigration, whatever her motives or reasons, and that it was not until she was cautioned that she provided correct information. Further, although the Tribunal acknowledges the significant financial and other hardship that will likely be caused to the second-named applicant and Mr Sukhminder Jit Singh (and his family) in relation to their joint businesses because of cancellation of the visa, those business decisions were made at a time where, as discussed with all interested parties at hearing, the applicant and the second-named applicant were the holders of temporary visas only, with no guarantee of permanent visas, whatever they may have hoped or expected given Mr Sukhminder Jit Singh’s own experiences or the advice of migration agents or others.

11. Having had regard to all of the evidence and 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.

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

    Susan Trotter
    Member