Kaur (Migration)

[2018] AATA 5850

Kaur (Migration) [2018] AATA 5850 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Bhawandeep Kaur
Mr Gaurav Gaba

CASE NUMBER:  1712480

HOME AFFAIRS REFERENCE(S):           BCC2014/2719807

MEMBER:Amanda Mendes Da Costa

DATE:17 December 2018

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 17 December 2018 at 1:09pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 – Cook – employer’s standard business sponsor approval cancelled – new prospective employer – prospective nomination application – exercise of discretion – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 2, r 2.43

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 12 June 2015 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)(g) on the basis that the standard business sponsor who nominated the applicant in the most recently approved nomination had its approval as a standard business sponsor cancelled by a delegate of the Minister on 11 February 2015 pursuant to s.140M(1)(a) of the Act. The second named applicant’s visa was consequentially cancelled by a delegate of the Minister by operation of law under s.140 of the Act. 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 Tribunal notes that the applications for review were remitted by the Federal Circuit Court for reconsideration by the Tribunal by order of the Court on 5 June 2017.

5. The applicants appeared before the Tribunal on 26 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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.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)(g). 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?

9. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(l) is relevant.

10. The Tribunal notes that the standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was AA & DD Pty Ltd, trading as The Glassi Junction (the sponsor) whose nomination was approved on 3 March 2014.

11. On 11 February 2015 a delegate of the Minister made a decision under s.140M(1)(a) of the Act to cancel the approval of the sponsor as a standard business sponsor and under s.140M(2) of the Act to bar the sponsor for three years from making future applications for approval as a standard business sponsor.

12. On 24 March 2015 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of her visa and invited her to respond to this notice in writing.

13. On 10 April 2015 the Department received a written response to the NOICC, in which she advised that on 9 April 2015, a new nomination for her was lodged by a different prospective employer.  The Tribunal notes that this nomination was refused on 22 May 2015.

    Applicant’s evidence

14. The applicant told the Tribunal that she arrived in 2008 on a student visa.  She completed an Advanced Diploma in Hospitality and until the cancellation of her Subclass 485 visa, had been working as a cook.  She said that prior to receiving the NOICC she had been unaware of any difficulties experienced by her employer with its standard business sponsorship and was surprised when she was advised that the company’s sponsorship had been cancelled by the Department.

15. The applicant explained that she and her husband (the second named applicant) had been unable to work since the cancellation of their visas and were reliant on support from her sister-in-law with whom they had been living since the visa cancellations.   They were also receiving financial support from their families in India.  The applicant said that in November 2015 she gave birth to twin girls and that she wanted them to be raised in Australia where there are better opportunities for girls, particularly for their education.

16. The applicant told the Tribunal that she had been offered employment in Colac, Victoria, as a Tandoori cook in an Indian restaurant.  She provided the Tribunal with a letter dated 18 January 2018 from Gagandeep Singh, a director of the SKN Pty Ltd ATF SKN Unit Trust, trading as Colac Curry Club, applying for nomination of the applicant as a cook under the Regional Sponsored Migration Scheme for a Subclass 187 visa.

17. The applicant subsequently provided the Tribunal with a further letter from this prospective employer dated 4 December 2018 in which Mr Singh confirms that the employment agreement entered into by the applicant and the company is still valid and that the applicant’s employment as a cook at the Colac Curry Club will commence after the grant of the applicant’s Subclass 187 visa.  

    Evidence of second named applicant

18. Mr Gaba told the Tribunal that he and his wife had not lived in India for the past 10 years and last visited their families there four years ago.  He said that they had ‘lost touch’ with educational and employment opportunities in India.  He explained that although their families were providing some financial support to him and his wife, they were unlikely to continue providing such support to them if they were required to return to India.  Mr Gaba explained that he and his wife were keen to obtain further employment in Australia, work hard and make a future for their family here.  If the applicant was able to take up the job offer from SKN Pty Ltd and the family moved to Colac he would obtain part-time employment as a cleaner and care for the children whilst his wife worked.

    Applicant’s submissions

19. The applicant’s submissions may be summarised as follows:

    ·The applicant moved to Australia in 2008 as a student. She completed her studies and worked in her skilled occupation of chef and cook, as required by the conditions of her Subclass 485 visa.

    ·The cancellation of the applicant’s visa was not due to malfeasance on her part and was due to the actions of her sponsor.

    ·The applicant’s aspiration to obtain permanent residence in Australia was a legitimate one.  When granted a Subclass 485 visa, the applicant planned to gain experience in her skilled occupation, which she would use as the basis for applying for a Subclass 186 visa.

    ·In cancelling the applicant’s visa, the delegate erroneously assumed that because the applicant’s visa was a temporary one, she would have returned to India when her visa expired.

    ·The cancellation of the applicants’ visas would have a detrimental effect on any future visa applications made by them.

    ·Although grounds for the cancellation of the applicant’s visa exist, the evidence before the Tribunal supported it exercising its discretion not to cancel her visa.  

20. The Tribunal finds that the approval of the applicant’s sponsor as a standard business sponsor was cancelled under s.140(1)(a) of the Act and under s.140M(2), the sponsor was barred for three years from making future applications for approval as a standard business sponsor.

21. There is no evidence before the Tribunal which indicates that  there was a subsequent approved nomination of an occupation relating to the applicant by a standard business sponsor which has not ceased.

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

23. 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’.

    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

24. The applicant was granted a Subclass 457 visa for the purpose of filling a skill shortage and employment in Australia for an approved sponsor in a skilled occupation for which she was specifically nominated to work in, and which could not be filled from within the Australian workforce.

25. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was AA & DD Pty Ltd trading as The Glassi Junction (the sponsor) whose nomination was approved on 3 March 2014 for the applicant to be employed in the occupation of cook ANZSCO Code 351411.

26. The Tribunal finds that the applicant’s purpose in staying in Australia was for employment as a Cook with the sponsor on a temporary basis.

27. The applicant ceased employment with the sponsor after its approval as a standard business sponsor was cancelled and it was barred for three years from making future applications for approval as a standard business sponsor.

28. The purpose of the Subclass 457 visa is to enable skilled workers to come to Australia and work in a nominated occupation with an approved sponsor for up to four years.

29. Although the Tribunal accepts that the purpose of the visa is not to enable the applicant to stay and live in Australia on an indefinite basis, pursuing employment opportunities, it acknowledges that the applicant has found further employment with a prospective employer who has been prepared to make a nomination application for a position for the applicant.

    The extent of compliance with visa conditions

30. There are no known instances of non-compliance with visa conditions.

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

31. The applicant who is a national of India has been living in Australia for the past 10 years, firstly as a student and then in employment as a cook.  She is married with two young children born in Australia.  The Tribunal accepts that the applicant and her husband would experience some difficulties in returning to India and establishing their careers after many years living in Australia.  The Tribunal also accepts that there may be greater educational opportunities for their children in Australia, although there is no evidence before the Tribunal which suggests that the couple’s children would be subject to any particular hardship or harm if they accompanied their parents to India.

32. The Tribunal accepts that the applicant is a skilled worker whose employment with her sponsor ceased due to the actions of the sponsor, and was not attributable to her behaviour.  The Tribunal is further satisfied that the cancellation of her visa is likely to lead to financial hardship as she will be without employment and income until she is able to establish a career in India.

    Circumstances in which the ground of cancellation arose

33. The Tribunal accepts that prior to the cancellation of her visa, the applicant was employed in her nominated skilled occupation by AA & DD Pty Ltd, which was a standard business sponsor who had an approved nomination for the application.  The Tribunal notes that the approval of the applicant’s sponsor as a standard business sponsor was cancelled on 11 February 2015 under section 140M(1)(a) of the Act and that the sponsor was barred under s.140M(2) of the Act for three years, from making future applications for approval as a standard business sponsor.

34. The Tribunal finds that the cancellation of the applicant’s visa was subsequent to the cancellation of the sponsor’s approval as a standard business sponsor and until this occurred she was working in her nominated skilled occupation as a chef and cook.

    Past and present behaviour of the visa holder towards the Department

35. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

36. The Tribunal accepts that the second named applicant would be subject to consequential cancellation under s.140.  The primary decision record indicates that at the time of the primary decision, the applicant’s husband continued to hold the Subclass 485 visa as a member of the family unit of his wife.

    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

37. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion she will be detained indefinitely.  The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she may be subject to an exclusion period in relation to some future visa applications.  The Tribunal accepts that if the applicant’s visa was cancelled she would only be able to make a valid visa application for certain kinds of visas.

    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

38. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation.   

39. Considering the circumstances as a whole and particularly the circumstances of the applicant ceasing employment with the sponsor and the securing of future employment with a prospective employer who has already made a nomination application for the applicant,  the Tribunal concludes that the visa should not  be cancelled

    DECISION

40. 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.

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

    Amanda Mendes Da Costa
    Member