Kaur (Migration)

[2019] AATA 1612

Kaur (Migration) [2019] AATA 1612 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Balvinder Kaur
Mr Gurjinder Singh
Mr Ekhnoor Singh

CASE NUMBER:  1838073

HOME AFFAIRS REFERENCE(S):           BCC2018/4265152

MEMBER:Danielle Galvin

DATE:21 May 2019

PLACE OF DECISION:  Melbourne

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 21 May 2019 at 2:24pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no response to s 359A letter – not entitled to appear before the Tribunal – ground for cancellation – ceased employment with sponsor – consideration of discretion – purpose of visa grant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359B, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Hasran v MIAC [2010] FCAFC 40
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 19 December 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant has not complied with paragraph 3 of visa condition 8107. The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa was AUSSIE &AUSSIE PTY LTD trading as TANDOORI TIKKA INDIAN RESTAURANT (the sponsor). The applicant was nominated in the occupation of Cook (ANZSCO- 351411). On 21 February 2018 the visa holder notified the Department that they had ceased work with the sponsor on 10 January 2018 and that they had applied for another visa (RSMS Visa 187)

3. The occupation of Cook does not fall within the exemptions contained in cl.8107(3A) and therefore the 457 applicant can only legally work in Australia for the sponsor or an associated entity of the sponsor.

4. The applicants for review as named in the review application applied to the Tribunal for a review of the Department’s decision. On 26 March 2019 the Tribunal wrote to the applicants using the last address provided by them, requesting that they comment on or respond to the information that the employment had ceased and no alternative nominator had been identified pursuant to s.359A of the Act.

5. The review applicants were required to respond in writing to this request by 8 April 2019. They were advised that a failure to respond by the required date may result in the Tribunal proceeding to make a decision without taking any further action to obtain information. The review applicants were also advised that they would lose the right to appear before the Tribunal to give evidence and present arguments.

6. The review applicants have not provided the information or comments within the prescribed period and no extension has been sought or granted.. In these circumstances, s359C applies and pursuant to s.360(3( the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear” Hasran v MIAC [2010FCAFC 40. The tribunal has decided to procced to a decision without taking any further steps to obtain the information or comments.

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

8. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

    s.116(1)(b) - non-compliance with conditions

11. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(b) as the primary visa holder has ceased employment with the sponsor. The condition is attached to the first named applicant’s visa.

12. Given that the applicant notified the Department to advise that they were no longer employed by the sponsor and that no further information was provided to confirm the existence of an alternative sponsor, the applicant is in breach of condition 8107(3)(b) which states that if the visa holder ceases employment, the period during which the visa holder ceases employment must not exceed 60 consecutive days. There is no evidence before the Tribunal to find that alternative employment with an alternative sponsor was undertaken by the applicant.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the first named applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

15. The Tribunal has taken in to consideration all of the evidence before it. The only document provided by the applicants in support of their review was a copy of the Departments’ decision. The Tribunal notes that the applicant was invited in March 2019 to comment on or respond to the issue in relation to the ceasing of employment with the sponsor and failed to do so within the required time.

    -The purpose of the visa holder’s travel and stay in Australia

16. The purpose of the 457 visa is for an applicant to work on a temporary basis (usually for up to 4 years) for an approved sponsor in an approved occupation.

17. The applicant was granted a UC 457 Temporary Work (skilled) for the purpose of working in the nominated position for the sponsor. That purpose came to an end when the visa holder ceased employment with the sponsor. The applicant has submitted no evidence that a new approved nomination is in place and therefore the reason for the UC 457 visa no longer exists. The Tribunal finds that these circumstances favour the exercise of the discretion to cancel the visa.

18. The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list and that if an applicant had been unable to secure an approved nomination then this would result in that applicant being unable to fulfil the purpose of the 457 visa and this weighs strongly in favour of cancelling the visa.

    -The extent of compliance with visa conditions

19. The Tribunal has considered the applicant’s compliance with visa conditions and has no information before it that the applicant has not complied with visa conditions save for visa condition 8107(3)(b).

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

20. The failure of the applicant to respond to the Tribunal following the making of the review application and the absence of any relevant material before the delegate means that the Tribunal has no evidence before it as to the hardship of any kind that may arise if the visa was cancelled. The tribunal therefore finds that the lack of evidence weighs in favour of cancelling the visa.

    -Circumstances of the visa cancellation

21. The purpose for which the visa was granted ended when the Department was informed that the employment with the sponsor had ceased on 21 February 2018. The lack of information from the applicant in support of their review application prevents the Tribunal from making any further assessment in relation to the circumstances of the cancellation and therefore the lack of evidence favours the exercise of its discretion to cancel the visa.

    -Past and present behaviour towards the Department

22. The Tribunal has no evidence before it that  applicant failed to cooperate with the Department. However, in light of the evidence that is before the Tribunal little weight is given to this consideration.

    -Legal consequences of a decision to cancel the visa

    The applicant currently holds a Bridging visa A and will only be subject to detention if she does not continue to hold visas to remain lawfully in Australia or refuses to depart voluntarily. The applicant will not have to immediately depart Australia if the visa is cancelled. If the current visa is cancelled the applicant will be affected by s.48 of the Act and will have limited options for applying for substantive visas onshore without the intervention of the Minister. The Tribunal is aware that the first named applicant has made an application for a RSMS (RN 187) visa the outcome of which is yet to be determined.

    -Australia’s international obligations

    There is no evidence before the Tribunal that Australia is in breach of its international obligations. There is no evidence provided to the Department or before the Tribunal nor has the applicant claimed  that any international obligations would be breached as a result of the cancellation.

    -Other relevant factors

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

    DECISION

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

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

    Danielle Galvin
    Member