Kaur (Migration)

[2019] AATA 2402

Kaur (Migration) [2019] AATA 2402 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Harpreet Kaur
Mr Jaskaran Singh
Ms Jasman Singh Kang

CASE NUMBER:  1703744

HOME AFFAIRS REFERENCE(S):           BCC2016/4066071

MEMBER:C. Packer

DATE:16 April 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 other applicants.

Statement made on 16 April 2019 at 4:22pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – circumstances no longer exist – approved sponsor had ceased trading – nomination not made by an approved sponsor which was lawfully operating a business – applicant’s evidence credible and blameless in the predicament –nomination for 190-Skilled Nominated scheme assessed and successful – decision under review set aside 

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994, Schedule 2

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Wan v Minister for Immigration & Multicultural Affairs, Australia: Full Federal Court, 18 May 2001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 February 2017 made by a delegate of the Minister for Immigration and Border Protection 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)(aa) on the basis that the approved sponsor had ceased trading from September 2014 which was before the applicant was granted her visa on 21 October 2014. The circumstances that enabled her to meet the criteria for visa grant did not exist at the time of decision to grant her the Subclass 457 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The applicants appeared before the Tribunal on 16 April 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

5. 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

6. 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)(aa). 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)(aa) – Fact or Circumstance for visa grant did not exist

7. A visa may be cancelled under s.116(1)(aa) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.

8. On 24 September 2014 Seifeddine Enterprise Pty Ltd ATF The Seifeddine Family Trust (the sponsor) had a business nomination approved. On 21 October 2014 the applicant was granted a 457 visa on the basis of the approved business nomination. The applicant was approved to work as a cook for $54,000 annual salary.

9. The Department’s NOICC letter dated 8 February 2017 shows an official liquidator Vince and Associates advised that Seifeddine Enterprise Pty Ltd ATF The Seifeddine Family Trust (the sponsor) had ceased trading since September 2014. Therefore, given that the sponsor had ceased trading at the time the nomination was approved in late September 2014, they could not be an approved business sponsor as one of the requirements for this is that the business must be lawfully operating. Consequently, it appears that as the nomination was not made by an approved sponsor which was lawfully operating a business, the circumstance that enabled the visa grant did not exist at the time of decision to grant the 457 visa.  

10. Departmental records show the sponsor went into liquidation approximately September 2014; a liquidator was appointed 17 February 2015; liquidation was completed 18 February 2016; ASIC deregistered the company on 23 April 2016.

11. The applicant responded to the Department’s NOICC letter in two emails on 8 February 2017 and stated in part:

    ·She had been employed by the company and receiving a wage from the day she was granted the 457 visa. She provided her bank statements from 1 April 2015 to September 2016 that showed wages paid weekly by ‘Seif Enterprises’ or by ‘Seifeddine Servi’; and an ATO Notice of assessment for June 2016 showing taxable income of $53,699 and the Payer’s name was ‘Seifeddine Family Trust’. 

    ·She had worked at La Porchetta for over one and a half years at the same location in Werribee since being granted the 457 visa.

    ·She had been employed until 30 November 2016.

    ·Her employer has applied for another standard business sponsorship and nomination.

    ·They depend on her job and have been in Australia for a number of years and would face financial hardship if required to leave.

    ·She asked for her visa not to be cancelled due to factors beyond her control.

12. On 1 March 2019 the Tribunal invited the applicant to comment on or respond to the information about her nominator.

13. A response and submission dated 15 March 2019 had key points:

    ·The applicant had been employed at the same location at Werribee doing the same tasks at La Porchetta Pizza and Pasta restaurant.

    ·She had had no idea that Seifeddine Enterprise Pty Ltd had ceased trading since September 2014. She continued to be employed in the same position and location and receive a salary throughout the years. It was beyond her control that Seifeddine Enterprise Pty Ltd had ceased trading.

    ·She seeks a delay in the review as she is waiting for an invitation for a 190 visa.

14. At hearing she gave similar submissions.

15. In sum, I find that as the sponsor had ceased trading at the time the nomination was approved in late September 2014, they could not be an approved business sponsor as one of the requirements for this is that the business must be lawfully operating, and the basis for the nomination no longer existed. As the nomination was not made by an approved sponsor which was lawfully operating a business, the circumstance that enabled the visa grant did not exist at the time of decision to grant the 457 visa to the applicant. 

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(aa) 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

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

    • the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
    • the extent of compliance with visa conditions
    • degree of hardship that may be caused (financial, psychological, emotional or other hardship)
    • circumstances in which ground of cancellation arose. The guidelines indicate that 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
    • past and present behaviour of the visa holder towards the department
    • whether there would be consequential cancellations under s.140
    • whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
    • whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
    • if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
    • any other relevant matters

18. The purpose of the applicant’s continued stay in Australia was to fill a particular approved position, as cook, for a particular approved sponsor. That she did not in fact work for the particular approved sponsor weighs for cancellation.

19. Based on the material before the Tribunal, including the applicant’s evidence at hearing, I am satisfied that the applicant was granted her 457 visa on 21 October 2014, and she commenced work as a cook at La Porchetta restaurant on 17 November 2014. Payroll advice from the restaurant shows she was paid weekly from 17 November 2014 on an annual salary of $53,999.92. I accept her evidence that she was unable to work there from 29 December 2014 to 22 March 2015 (just less than 3 months) because the mall was being renovated and the restaurant relocated. I accept her evidence, together with pay advices and her former employer Ali Seifeddine’s advice, that after the renovation she resumed worked as a cook at La Porchetta restaurant from 23 March 2015 to 4 December 2016. At that time she became aware of the sponsor’s problems and her employment ceased. Indeed, Seifeddine Enterprises Pty Ltd had been deregistered on 23 April 2016 but their sponsorship was only cancelled under 140M(1)(a) on 1 December 2016.

20. After she ceased employment on 4 December 2016, an ostensibly similar entity to the previous sponsor named Seif Enterprises Pty Ltd, lodged a sponsorship and nomination applications on 23 December 2016. However, by 8 February 2017 the Department had sent a NOICC letter to the applicant. On 20 February 2017 Seif Enterprises Pty Ltd was approved as a sponsor, but their nomination was refused. On 22 February 2017 they lodged a fresh nomination application, but on 28 February 2017 the applicant’s 457 visa was cancelled. Eventually the nomination was refused on 20 December 2017.

21. Nonetheless, on 29 June 2017 the applicant was granted a Bridging E visa without condition 8101, and at hearing she stated she started work as a cook at La Porchetta restaurant on 5 July 2017, and the business had a new owner Mr Gautam Gulati, Director of Jai Maa Ambe Pty Ltd. The applicant stated he did not wish to sponsor/nominate her and so she seeks to make an application for a 190 visa. Her seeking the 190 visa had been delayed as she sought to improve her English skills. At hearing she provided a letter dated 11 April 2019 from the Department of Jobs, Precincts and Regions that showed her application for Victorian Government visa nomination under the 190-Skilled Nominated scheme had been assessed and was successful.

22. After considering the material before the Tribunal, including the applicant’s evidence at hearing which I found credible, I am satisfied she had been unaware of the sponsor’s business problems. I am satisfied that she worked in her nominated occupation at the location of the business (La Porchetta restaurant) in compliance with her 457 visa and was paid the appropriate salary albeit she had remained unaware of the legal status of the entity that was paying her salary. I accept this is because the restaurant operator continued to be Ali Seifeddine until sometime after December 2016, and indeed, her ATO tax return for June 2016 showed the payer had been Seifeddine Family Trust. I consider the applicant was blameless in the predicament she found herself in, by late 2016. All of these circumstances weigh strongly against cancellation.

23. The applicant has been personally cooperative in her dealings with the Department and Tribunal, and at the hearing she gave credible evidence in a straightforward way. I give these considerations some weight, albeit little, against cancellation.

24. I also give some weight to the applicant’s planned application for a 190 visa based upon her cook skills and skilled employment experience, and future employment plans. The representative submitted she would meet the requirements for that visa if her 457 visa was not cancelled. If this is so, she will be employed as a skilled cook in Victoria.

25. I give little weight to the other circumstances the applicant claims. I consider the best interests of the applicant’s 4 year old son is to remain with his parents, and if the applicant’s visa is cancelled, the child will not be separated from the applicant (his mother) or father (whose visa would also be consequentially cancelled). A Subclass 457 is of limited duration related to working for a particular sponsor in a skilled occupation. It does not create an expectation of a permanent or extended life in Australia or an expectation of ongoing financial or other advantage by reason of being in Australia. Having taken all of these matters into account, and in particular the primary consideration of the child’s best interests, I place limited weight on any hardship that may be caused to the applicant and family members and I place limited weight against cancellation. I note that it does not follow from this the Tribunal must find that the visa should not be cancelled, rather the Tribunal may exercise its discretion to cancel the visa if it finds that other considerations outweigh the best interests of the child: (see for example Wan v Minister for Immigration & Multicultural Affairs, Australia: Full Federal Court, 18 May 2001).

26. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

27. 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.

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

    C. Packer
    Member