Kaur (Migration)

[2019] AATA 2445

Kaur (Migration) [2019] AATA 2445 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Simar Jeet Kaur
[Second named applicant]
[Third named applicant]

CASE NUMBER:  1710368

HOME AFFAIRS REFERENCE(S):           BCC2016/2539038

MEMBER:Karen Synon

DATE:25 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

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

Statement made on 25 June 2019 at 4:06pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – employment terminated within 2 years – genuine effort to be engaged in that employment – employment referred to in the relevant employer nomination – no obligation to secure alternative employment – only ceased work upon the sale of business – circumstances beyond applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 137Q, 137T, 348

CASES
Kaur & Ors v Minister for Immigration & Anor [2017] FCCA 2877

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 May 2017 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.137Q(2) on the basis that the applicant’s employment was terminated within the required employment period of 2 years and she had not made a genuine effort to be engaged in that employment for the required employment period.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicants appeared before the Tribunal on 15 October 2018 to give evidence and present arguments.  The applicant’s husband gave evidence.

5. The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.

   Jurisdiction of the secondary applicants

6. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant).  The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act.  As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the other applicants.  The Tribunal discussed this with the applicant at the hearing who said she understood and had no questions.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the Migration Regulations 1994 (the Regulations) for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Regulations are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

9. The applicant was granted a Subclass 187 visa on 15 January 2016 on the basis of her nomination as an Accountant by N. May & Associates based in Inverloch, Victoria.  The nomination was approved on 21 April 2015.

10. The applicant has provided to the Tribunal a copy of the delegate's record of decision to cancel the visa under s.137Q(2) of the Act. It sets out the following information:

    ·     The applicant advised the department on 1 August 2016[1] that employment had been terminated by the nominated employer on 30 June 2016.

    ·     A written statement from the employer, Nicole May, highlighted the circumstances surrounding the termination of employment.  The business, N. May & Associates was sold on 1 July 2016 and the new owner did not wish to retain the employees who held positions with the company.

    ·     The delegate was therefore satisfied that the applicant had commenced employment referred to in the relevant employer nomination and the employment terminated within the required employment period of two years starting on the day the person commenced that employment.  The applicant completed six months of the two-year employment commitment under the Regional Skilled Migration Scheme programme.

    ·     The applicant claims she applied for similar positions in the Grampians region of Victoria but was that not able to find relevant employment opportunities.  While the applicant has submitted evidence that she is registered with a job search agency, she did not provide any evidence to substantiate the claims she applied for alternative positions of employment.  The applicant has a Bachelor of Business in Accounting and has experience in the workforce.

    ·     Given the applicant was qualified and had relevant experience the delegate considered it unlikely that she was unable to secure an alternative accounting position, or indeed any position of employment within regional Victoria.  The delegate was not satisfied the applicant had made a genuine effort to be engaged in the designated occupation in a designated regional area for the required employment period.

    · The delegate noted that the applicant had since relocated to [Suburb 1], Victoria which is a metropolitan area, remains unemployed and is currently studying as her primary focus. This is not the intention of the RSMS visa programme and she has not indicated any future intention to do so. The delegate therefore was satisfied that there is a ground for cancellation under subsection 137Q(2) of the Migration Act.

    ·     After considering the applicant’s submissions for why the visa should not be cancelled the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons for not cancelling the visa.

    The Notice

    [1] At the hearing it was submitted that the applicant had advised the department of her employment termination on 28 July 2016.

11. On 9 March 2017 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of her Class RN subclass 187 visa under s.137Q(2). The NOICC stated that the evidence before it was that the applicant’s employment was terminated on 30 June 2016, within the required employment period of 2 years from the date she commenced her employment. The notice set out s.137Q(2) of the Act and invited the applicant to make representations concerning the proposed cancellation. The notice stated that under s.137R of the Act the delegate must consider any representations she makes when considering whether the visa should be cancelled.

    Response to the Notice

12. On 19 April 2017 the applicant responded to the department’s NOICC with a short submission and supporting documents.  In her response the applicant relevantly stated:

    I did not undertake any other employment, in fact, there was no job opening for accountants or similar role after my employment was terminated with N May and Associates.  I put so many efforts to find Accounting position in the regional area includes (sic) registration with job search websites, I did not get any Accounting job in this regional suburbs.  Registering with official government jobsites and major job search sites in Australia did not make any difference.  Even there is significant growth in job openings all around Australia, but not able to spot the reason, when broadening the search to find the reason and chances to be employed I came across skill shortage data reports Department of Employment.

    …A large proportion of applicants who lacked previous experience represented by recent graduates who had failed to secure position in a graduate development programme.  Employers noted that new graduates were unlikely to be considered suitable for most accounting vacancies without the completion of a graduate development year.

    Requested my employer to assist if she has any connections but no luck, [business] was sold the (sic) N May to another Accounting firm.  She tried to save my job, unfortunately, the new business owner wants to keep his employees only.  After N May and Associates, I am facing a lot of financial hardship.  My parents from overseas supporting me financially.  Due to pregnancy, I am at not able to get a job at present.

13. The applicant provided the following documents in support of her response:

    ·     A document dated 10 July 2016 containing an activation code for the Australian JobSearch site to enable this site to be linked to the applicant’s myGov account;

    ·     A printout for accountant positions in the postcode [postcode] (which is the metropolitan area of [Suburb 2]);

    ·     Bank account statements and records of international transfers;

    ·     Documents confirming the sale of the applicant’s employer’s business;

    ·     The applicant’s taxation Notice of Assessment for the financial year ending 30 June 2016;

    ·     A reconciliation of kindergarten subsidies and fees for the applicant’s [child];

    ·     An Online Enrolment Confirmation for the applicant’s enrolment in a Master of Laws (Applied Migration Law) with Victoria University commencing in 2017;

    ·     A Default Notice dated February 2017 addressed to the applicant for the amount of $75;

    ·     Documents from the Commonwealth Bank regarding the applicant’s credit card debt;

    ·     A statement in relation to a Gem credit card;

    ·     An Application for Transfer of Registration from the applicant’s husband to another person for the sale of [a vehicle];

    ·     A copy of the applicant’s Health Care Card;

    ·     A tax invoice in relation to the applicant’s husband’s further studies;

    ·     Confirmation of the applicant’s daughter’s enrolment at [a school] which required a $1000 enrolment deposit;

    ·     Medical information relating to the applicant’s pregnancy;

    ·     Information regarding a lease agreement for a property at [address] which was rented with effect from 23 May 2014 and a Section 32 Statement in relation to the same property.

    ·     An employment separation certificate with a covering letter from Nicole May stating she was sorry she was unable to secure the applicant’s employment when the business was sold to Frontier Accounting Pty Ltd on 1 July 2016;

    ·     A further submission which contains what appears to be large chunks of legal commentary not particularly relevant and which do not add anything further to the submissions and documents summarised above.  It also contains issues which go to the exercise of discretion which, for the reasons that follow, are not relevant to the Tribunal’s decision and which, in any case, are fully canvassed above and in the hearing evidence.

    Written submissions to the Tribunal

14. Both before and after the hearing submissions were made by the applicant’s registered migration agent.

15. The first submission provided legal commentary drawn from the Regulations and the department’s policy document and summarised the applicant and her husband’s visa history and study in Australia, the applicants’ employment with N May & Associates, the circumstances in which this was terminated after six months along with the fact the applicant informed the Department on 28 July 2016 about this.  It was contended that the applicant’s failure to complete the required employment period was due to a situation beyond her control and that she had made genuine efforts to continue working but there were compelling personal circumstances as to why she could not continue her employment.  In relation to the applicant’s genuine effort it was contended that the applicant attempted to find employment as an accountant and in other occupations in the same region but was unsuccessful.  She made various jobseeker accounts with different agencies to obtain job alerts and applied for jobs as they became available including applying for jobs with the Bank of Melbourne; as a Pathways Coordinator at Victoria University and as a Senior Officer Client Services at Latrobe University.  It was noted that while the applicant was working in Inverloch she was residing in the metropolitan area of [Suburb 1] and commuting each day to work.  The applicant became unexpectedly pregnant which ended her efforts to continue seeking employment as during her pregnancy she had various health issues and was not able to apply for jobs or commit to employment if she was successful.  After having her second child the applicant has been a stay-at-home mother focused on raising her family.  Around October 2017 the applicant was ready to re-enter the workforce and provided evidence of recommencing her search for employment as an accountant by registering with two job agencies.

16. In relation to considerations weighing in favour of the exercise of discretion it was submitted that:

    o    The applicant has established a life in Australia for 10 years and has compelling reasons to remain in Australia.  Both her children were born here and the family has successfully established their life here.  Her eldest daughter is enrolled in primary school and has developed a close bond with her peers.  Removal of the applicant from Australia would hinder her daughters’ opportunities to learn from the Australian education system and the applicant submits that her daughter’s health is intolerable to the environment in India as both times she has visited she become ill due to the water and living conditions.  The last time she visited India her daughter fell very ill and was hospitalised for three days.  The applicant’s husband has established a business in Australia and is now the family’s main income earner.  Should they have to return to India they face significant financial hardship as they could not earn enough to pay off their Australian debts.  The applicant has a close bond with the applicant’s younger brother and cousin who live with them.  The applicant’s brother–in-law lives 10 minutes away and visits the family regularly.  The family has developed social ties through school, friendship and business relationships in Australia and planed their lives in Australia as permanent residents.

    o    The applicant informed the department immediately of her employment termination and made genuine further attempts to seek alternative employment until she became pregnant and was unable to work. She acted with honesty and cooperated with the Department at all times.

    o    The applicant intends to re-enter the workforce and skilled employment now that her children are older and she is able to spend time away from them.

    o    Cancellation of the applicant’s visa would mean the applicants will become unlawful and liable to be detained and removed from Australia and would also enliven s.48 of the Act which would limit the applicant’s ability to apply for other visas while onshore.

    The hearing

17. At the hearing the Tribunal discussed with the applicant the concerns raised by the evidence before it. It explained the provisions of s.137Q(2), providing grounds for cancellation in certain circumstances.

18. The Tribunal confirmed with the applicant that she had advised the department on 28 July 2016 that her employment was terminated on 30 June 2016 and a written document from the employer outlined the circumstances in which this occurred, namely [the] business was sold and the new employer chose not to continue to employ the people had previously held positions in the company.  The department was satisfied that she had commenced employment but that the employment was terminated within the required two-year period.  The applicant indicated that she understood she was required to work for two years in a regional area in the nominated employment and that she only worked for 6 months of this 2 years period.

19. The applicant explained her immigration and study history in Australia after arriving here as the holder of a TU 573 visa in 2008.  She came here to study and was planning to go back but changed her mind after five years.  In December 2014 she commenced looking for work and was offered the position with N May & Associates that same month.  The applicant secured employment with N May & Associates after applying on the internet and attending an interview.  She explained that in addition to her formal study here she had 6 years’ experience in India as an accounting clerk and office administration in India.  The applicant clarified that she volunteered one day a week, for about 16 weeks, to receive training from December 2014.  She commenced full time work with N May & Associates in November 2015 and finished her employment on 16 June 2016; a total of 7 months.  In this time she did not live in a regional area but rather lived in [Suburb 1].  They were planning to buy a house in Inverloch and were saving for a deposit.  Asked why they did not rent in the regional area where she was employed the applicant said it was too expensive to rent so they were saving to buy a house there.  She had one child when she started working in Inverloch and had the second child in 2017.  In March 2017 she and her husband signed a contract for a property with settlement in July 2017 but could not proceed with this when their visa was cancelled.

20. The applicant explained that she registered with a number of job sites and was looking for other positions as either accountant or another occupation in Inverloch and the Grampians area but she was unsuccessful.  Later that year she became pregnant and was no longer able to work.

21. The applicant does not believe her visa should be cancelled because: she honestly informed the department that her employer had sold the business; she has spent 10 years in Australia and it will be very hard to start again in India; her children were born in Australia; her older child will soon commence school here; and when her daughter went to India for a visit she got sick.  The applicant also explained that her brother, brother-in-law and some of the husband’s cousins live here and they have a very close bond.  The applicant wants to stay in Australia “only for my daughters” and for her kid’s future.

22. The applicant will experience hardship if she has to leave because she sometimes gets behind in her rent.  She is not behind now but it took six months for her to recover after her last child and during this time they borrowed $48,000 from family in India.  Her husband works full time as a business broker and receives commission which is enough to support the family.  He has just joined a real estate company but has yet to get his real estate license.  In India her husband worked as an engineer after completing an engineering degree in India.

23. The applicant’s husband gave evidence that his wife was confused and the situation was beyond her control.  His brother got married in December 2016 and they booked a ticket to India for 3 months in 2016.  When they arrived back his wife was in bad health and they invited her parents to come over to look after her and during that time they received the department’s letter of cancellation.  When they arrived home they only had a week or two to find a job.  During that three month period they searched online for a job but there were practically no jobs available in the region at that time.  It was comfortable to look for a job in Gippsland and their daughter was enrolled in school for 2017.  At the time he was working for a real estate broker, Absolute Business Brokers, based in Dandenong.  Also during this time their main priority was to look after their children and for 6 months, 5 days a week when his wife was working in Inverloch she was not home when the kids got home and it was an emotional matter.  They did not know about the condition to work in a regional area for two years; it was not mentioned anywhere in the letter or on the department’s website.  They are more than happy to move to a regional area.  Their plans changed, to stay in Australia, when they had kids and they have no friends or connections in India.  They would have to start again at the beginning and their kids will have to leave their friends which disturbs him.

    Does the ground for cancellation exist? - employment terminated within 2 years

1. Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period:

   Employment terminates within 2 years

   (2)The Minister may cancel a regional sponsored employment visa held by a person if:

   (a) the Minister is satisfied that:

   (i)the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and
   (ii)the employment terminated within the period (the required employment period ) of 2 years starting on the day the person commenced that employment; and

   (b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.

2. The submission received after the hearing highlighted the case of Kaur & Ors vMinister for Immigration & Anor [2017] FCCA 2877 (23 November 2017) (‘Kaur’) in which Lucev J in obiter essentially observes that s.137Q(1)[2] does not impose a requirement to demonstrate a genuine effort to secure alternative employment in a designated regional area but rather an obligation to make a genuine effort to complete “the employment referred to in the relevant employer nomination”.  Specifically Lucev J[3] noted

   There does not appear to be any authority concerning the construction of s 137Q of the Migration Act. One good reason for that might be that its terms are plain. Its terms provide the Minister with discretion to cancel a regional sponsored employment visa (and the 857 Visa is one of those) if the Minister is satisfied that a person has not commenced “the employment referred to in the relevant employer nomination”. It is only the employment in the relevant employer nomination which must be considered, and not some other employment outside that referred to in the relevant employer nomination. That employment, which is the employment referred to in the relevant employer nomination, must be commenced within the period prescribed by the Regulations, which is six months: Migration Regulations, reg 2.50AA, Item 3. If the person is found not to have commenced that employment the onus falls on to the person concerned to satisfy the Minister that they have made “a genuine effort to commence that employment within that period”: Migration Act, s.137Q(1)(b). The reference to “that employment” in s 137Q(1)(b) of the Migration Act is plainly a reference to “the employment referred to in the relevant employer nomination” in s 137Q(1)(a) of the Migration Act. Thus, it is only the employment referred to in the relevant employer nomination that must be considered by the Minister in determining cancellation. The fact that a person is employed elsewhere, and in employment not referred to in the relevant employer nomination, is irrelevant….

   [2] And by logical extension, given the same expression of ‘that employment’ to s137Q(2).

   [3] Kaur & Ors vMinister for Immigration & Anor [2017] FCCA 2877 at [21].

3. The submission highlighted two decisions of the Tribunal (differently constituted) in which the reasoning of this decision were relied upon to set aside the department’s respective decisions to cancel 857 and 187 visas.

4. After considering the representative’s submission and the decision in Kaur the Tribunal agrees that the requirement in s.137Q(2) of “the employment” is a reference to the employment to which the relevant employer nomination relates. In this case “the employment” referred to is the position of Accountant with N. May & Associates based in Inverloch, Victoria.

5. It is without contention that the applicant’s employment was terminated with N. May & Associates when Nicole May sold her business in July 2016 and that the circumstances of this sale were not foreseen by the applicant when she commenced full time employment there from 15 January 2016.  Indeed the Tribunal notes correspondence from Nicole May to the Tribunal dated 12 October 2018 in which Ms May confirms that she sold the business due to personal reasons and that she believes the applicant “would have continued to work for me for at least another two years had my business remained operating as she was a very dedicated and loyal employee”. 

6. After considering all the evidence before it the Tribunal is satisfied that the applicant made a genuine effort to be engaged in ‘that employment for the required employment period’ which is the employment referred to in the employer nomination, being as an Accountant with N May & Associates.  The Tribunal is satisfied that the applicant only ceased work upon the sale of the business which was a factor entirely outside the control. 

7. For these reasons, the Tribunal is not satisfied the relevant grounds cancellation in s.137Q(2) exists. It follows that the powder cancel the applicant’s visa does not arise.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

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

   Karen Synon

   
   

   Member