Kaur (Migration)

[2019] AATA 1973

Kaur (Migration) [2019] AATA 1973 (1 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sukhvir Kaur
Mr Amandeep Singh

CASE NUMBER:  1831070

HOME AFFAIRS REFERENCE(S):           BCC2018/1887173

MEMBER:Amanda Mendes Da Costa

DATE:1 May 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 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 01 May 2019 at 11:48am  

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled) – Cook – applicant had not ceased employment with sponsor for more than 90 days – company re-registered – sponsor’s accountant failed to pay re-registration fee – decision under review set aside

LEGISLATION
Corporations Act (Cth) 2001, s 601AH(5)
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations (Cth) 1994, 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 17 October 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 had not complied with a condition of the visa. The delegate found that the applicant had not complied with subparagraph 3(b) of Condition 8107 attached to the applicant’s visa in that she had ceased employment with her sponsor and had not been employed for the sponsor forin excess of 90 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

4. The applicants appeared before the Tribunal on 12 April 2019 to give evidence and present arguments.  

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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?

8. 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 the condition is subparagraph (3)(b) of condition 8107 attached to the applicant’s visa. This condition requires that the visa holder’s employment with their sponsor not cease for in excess of 90 consecutive days.

9. The standard business sponsor who nominated the applicant (for the position of Cook ANZSCO 351411) in the most recently approved nomination for the visa was The Neem Groceries and Food Pty Ltd (the sponsor) whose nomination was approved on 7 September 2015.

10. The Department subsequently received information that the applicant had ceased employment with the sponsor on 5 February 2018 when the company was de-registered.

11. On 24 July 2018 the Department sent the applicant a Notice of Intention to Consider Cancellation of her visa (NOICC) on the grounds that that the applicant had not complied with subparagraph (3)(b) of condition 8107 attached to the visa, because she appeared to have ceased employment with the sponsor who nominated her, for a period exceeding 90 consecutive days.

12. On 31 July 2018 the applicant provided the following response to the NOICC:

    First of all I am sorry that this thing has happened.  I just want to explain that it was not my fault I am just a worker there and cannot interfere in the matters of ASIC.  I have spoken to my employer they have given me a statement and their accountant has also given me a statement, which I have attached to this email and all my payslips from January 2018 till now.

    Please consider my case, as I do not think my visa should be cancelled as I have not breached anything as I have never left this job and still getting paid.  Only thing is I was not aware of de-registration of the company it happened due to the miss communication between my employer and their accountant and now they have appointed new accountant and have already spoken to ASIC and have applied for the reinstatement which will take around 28 days.

    Furthermore, I would like to say that since I am in Australia, you can check my records, I have lived as a responsible person and it will be very hard for me and my family if my visa is cancelled, please see my situation and decide accordingly.  If you need more information please do not hesitate to ask me and please give me time to explain everything which is needed in this case.  I would be more than happy to give you all the necessary which you want.  

13. The applicant’s visa was cancelled on 17 October 2018 under s.116(1)(b) on the grounds that she had breached subparagraph 3(b) of Condition 8107 attached to her visa in that she had ceased employment with her sponsor (when it ceased to be a legal entity) and had not been employed for the sponsor for in excess of 90 consecutive days. This was due to the reregistration of the company.

14. The applicant told the Tribunal that she arrived in Australia in June 2009 for the purpose of study.  She completed the following qualifications:

    ·certificate 3 in painting and graphic art;

    ·certificate 4 in business management;

    ·diploma and advanced diploma in marketing; and

    ·certificate 4 in commercial cookery.

15. After completing her cookery course in 2015 the applicant commenced employment as a Cook with the sponsor which operated two restaurants – in Berwick and Murrumbeena.  The applicant was employed in the Murrumbeena restaurant Entice which is an Indian restaurant.  The applicant was employed as one of two cooks working at Entice together with a Chef. The applicant worked there on a full time basis until October 2018 when her visa was cancelled and she was no longer permitted to work in Australia.

16. The applicant was not aware that the company was de-registered in February 2018 until she received the NOICC in July 2018.

17. The applicant said that when she received the NOICC she spoke to her employer who contacted the sponsor’s accountant regarding the company’s failure to pay the requisite fee for re-registration of the company.  

18. The documents provided to the Tribunal by the applicant include the following:

    ·Letter from the sponsor regarding the applicant’s employment, dated 11 December 2018.

    ·Letters, undated, from Gopi Chengareddy and Rajkumar Chelleng, on behalf of the sponsor.

    ·Letter to the Department from the sponsor’s accountants, dated 30 July 2018.

    ·Application for reinstatement of company dated 14 August 2018.

    ·Submission by the applicant, undated.

    ·ASIC extract dated 11 April 2019.

19. The application for reinstatement of the sponsor is signed by Rajkumar Chelleng.

20. The letter from the sponsor’s accountants attests to the de-registration of the company and the instructions given by the sponsor for its accountants to apply for the re-registration of the company.  Mr Chengareddy and Mr Chelleng who claim to be the owners of the sponsor also attest to their intention to apply for re-registration of the company.

21. In its letter the manager of the sponsor confirms that the applicant has successfully completed three years of employment with it from 14 September 2015 to 30 September 2018. The manager attests to the tasks undertaken by the applicant and her dedicated service to the company.

22. The ASIC extract shows that the as at 11 April 2019 the sponsor is a registered company.

23. It was submitted on behalf of the applicant that the effect of registration of the company was that it had never ceased to be a legal entity and accordingly the applicant continued to be employed by the sponsor despite the deregistration of the company in February 2018.

24. The Tribunal notes that s.601AH(5) of the Corporations Act 2001 provides:

    If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered.  A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company.  Any property of the company that is still vested in the Commonwealth or ASIC revests in the company.  If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim.

25. The delegate found that the ground for cancellation arose when the applicant ceased employment with the sponsor on 5 February 2018.  In her response to the NOICC the applicant stated that the sponsor had lodged an application for reinstatement of the sponsor’s company registration.  The delegate noted in his decision that information from the Australian Business Register showed that the sponsor was still deregistered as of 17 October 2018.

26. The applicant provided the Tribunal with a copy of an Application to the Australian Securities and Investment Commission (ASIC) for reinstatement of the sponsor, dated 14 August 2018.  The Tribunal was also provided with an extract from the ASIC data base dated 11 April 2019 which shows that the sponsor’s status is registered for the period 5 September 2012 to 5 September 2019.

27. Accordingly the Tribunal is satisfied that as the sponsor has been reregistered, the company is taken to have continued in existence as if it had not been deregistered. The Tribunal therefore finds that the grounds for cancellation do not exist as there is no evidence that the applicant failed to comply with subparagraph (3)(b) of condition 8107 attached to the visa in that she ceased employment with the sponsor who nominated her, for a period exceeding 90 consecutive days.

28. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

30. The Tribunal has no jurisdiction with respect to the second named applicant.

    Amanda Mendes Da Costa
    Member