Kaur (Migration) - [2018] AATA 4539

Kaur (Migration) [2018] AATA 4539 (5 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Rupinder Kaur
CASE NUMBER:  1700850
DIBP REFERENCE(S):  BCC2016/772663
MEMBER:Alison Mercer
DATE:5 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 05 October 2018 at 4:48pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary (Skilled)) – ceased employment – original employer’s business sold – sought new sponsorship – period of non-compliance – best interest of the child – child grew up in Australia – difficulty of replacing applicant – subject of an approved nomination – date of visa expiry – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

CASES
MIAC v SZQRB [2013] FCAFC 33
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 January 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) as she found that the applicant had not complied with a condition of her visa (namely, condition 8107, which requires that the visa holder must work only in the occupation in the most recently approved nomination, and only for the employer who most recently nominated the applicant, and that if the visa holder ceases that employment, the period during which they ceased employment must not exceed 90 consecutive days). The delegate found that the applicant was most recently nominated as a Cook by Happy Point Investment Pty Ltd, but that employer notified the Department that the applicant had ceased employment there on 18 November 2015 and thus it appeared that she had ceased her approved employment for more than 90 days as at the time of the delegate’s decision. The delegate found a ground for cancellation was made out and further found that the grounds in favour of cancellation outweighed those against.
The Tribunal received a review application from the applicant on 17 January 2017. It was accompanied by a copy of the delegate’s decision and an authority by which she appointed a registered migration agent as her representative and authorised recipient for correspondence.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant’s agent provided written submissions on 26 March 2018 and 10 April 2018.
The applicant appeared before the Tribunal on 17 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Mr Phulpreet Singh, and the applicant’s current employer, Mr Christopher Limon of Wahring’s Restaurant Pty Ltd ATF Wahring’s Restaurant Unit Trust. The applicant’s agent made oral submissions. Following the hearing,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaur (Migration)

Details

AGLC: Kaur (Migration) [2018] AATA 4539
Case: [2018] AATA 4539
Decision Date: 5 October 2018

CaseChat Overview and Summary

The applicant, Ms Kaur, sought review of a decision to cancel her Subclass 457 (Temporary Work (Skilled)) visa. The visa had been granted on 13 July 2015, valid until 13 July 2019, based on a nomination by Happy Point Investment Pty Ltd for the occupation of Cook. The Department initiated cancellation proceedings after being notified that Ms Kaur had ceased employment with Happy Point Investment Pty Ltd on 18 November 2015, which appeared to constitute a breach of visa condition 8107(3)(b) by exceeding the 90-day period of non-employment.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether it was in the best interests of the child and other relevant factors to exercise the discretion not to cancel the visa. Specifically, the Tribunal had to consider the applicant's compliance with visa conditions, the hardship that cancellation would cause to her and her family, her past and present behaviour, and the legal consequences of cancellation.

The Tribunal found that while Ms Kaur had indeed ceased employment with her original sponsor for more than 90 days, this occurred because the business was sold and the new owners did not continue her sponsorship. Ms Kaur had actively sought new sponsorship and had a nomination lodged with the Department by a new employer, Two Leos Pty Ltd, which was under active consideration. The Tribunal also took into account that Ms Kaur's son, born in Australia, was enrolled in Grade 1 and had no prior schooling in India, making his removal from the Australian education system highly disruptive. Furthermore, Ms Kaur had no adverse dealings with the Department previously, and cancellation could lead to a three-year bar under Public Interest Criterion 4014. Considering these factors, including the applicant's efforts to secure new employment and the significant hardship to her child, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel Ms Kaur's Subclass 457 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the the decision to cancel the applicant’s visa should be set aside.CONSIDERATION OF LAW, CLAIMS AND EVIDENCE Departmental historyVisa grant The Department’s records indicate that the applicant was granted a subclass 457 visa on 13 July 2015, valid until 13 July 2019. It was based on an approved nomination of her for the occupation of Cook made by an approved standard business sponsor, Happy Point Investment Pty Ltd.Notice of Intention to Consider Cancellation On 14 December 2016, the Department wrote to the applicant to advise her that there appeared to be a ground for cancellation of her visa under s.116(1)(b) of the Act; namely, that it appeared that she had breached condition 8107(3) of her visa. The letter stated that the standard business sponsor who most recently nominated the applicant was Happy Point Investment Pty Ltd, whose nomination was approved on 26 March 2015. The letter further stated that the Department had received written notification from Happy Point Investment Pty Ltd that the applicant ceased employment there effectively 18 November 2015. The applicant was advised that this indicated that she was in breach of condition 8107(3)(b) of her visa because she appeared to have ceased employment with her sponsor for a period exceeding 90 consecutive days. If this was correct, then this was grounds for cancellation of the applicant’s visa pursuant to s.116(1)(b). The applicant was invited to respond within 5 working days, including the matters to be taken into account by the delegate in considering whether to cancel the visa or not, such as:·the purpose of the applicant’s travel to and stay in Australia;·the extent of her compliance with any conditions subject to which her visa was granted;·the degree of hardship that might be caused to her and/or any family members if her visa was cancelled;·her past and present behaviour towards the Department;·the legal consequences of a cancellation decision; and·any other matters.Applicant’s response The applicant appointed a registered migration agent, Mr Rick Gunn, to be her representative and authorised recipient for correspondence. The applicant’s agent provided a written response dated 11 January 2017, in which he made the following points (in summary):·the applicant was currently in the process of being nominated by a new employer, Two Leos Pty Ltd, under the subclass 457 visa program. She was currently in Australia with her husband and young son, who were dependents on her current subclass 457 visa;·the applicant instructed that she did work for Happy Point Investment Pty Ltd from the approval of her subclass 457 visa on 13 July 2015, but her employment ceased when the owners of that business sold it, and the new owner were not prepared to continue with the applicant’s sponsorship;·the applicant therefore lost her job through no fault of her own and was left vulnerable to circumstances resulting in her non-compliance with condition 8107 of her visa;·since ceasing employment with her original employer, the applicant had attempted to secure new sponsorship from other businesses within 90 days. She found employment with Two Leos Pty Ltd (trading as Wallder’s Café in Kilmore, Victoria). This employer lodged an application for approval as a standard business sponsor, and a nomination of the applicant as a Cook, with the Department on 31 March 2016;·Two Leos Pty Ltd was approved as a standard business sponsor on 18 July 2016 but its nomination was refused on 31 August 2016. The business had lodged a second nomination with the Department on 16 September 2016 and had addressed the points raised by the original delegate who found insufficient evidence had been provided to indicate that it was a genuine position. It was noted that this nomination was now under active consideration with a decision anticipated shortly;·the applicant conceded that she ceased employment with her original employer for more than 90 days but had sought, and was actively seeking, a new sponsorship and nomination for her occupation of Cook, and a decision on that new employer’s nomination was pending. It was submitted that it would be unfair to cancel her visa while the outcome of this nomination was unknown;·other factors in favour of exercising the discretion not to cancel the applicant’s visa included that the purpose of her travel to, and stay in, Australia, was to seek employment and meet shortages in the Australian labour market; in particular, the hospitality industry, which had documented shortages, particularly in regional areas such as Kilmore. The applicant’s current nominating employer had experienced recent resignations and currently did not have a full-time cook. It currently provided breakfast and lunch with a part time cook (2 days per week) and a casual cook;·the applicant instructed that she had not breached any other of her visa conditions, and reiterated that the breach of condition 8107 was outside her control. She and her dependants would suffer significant hardship if their visas were cancelled and they had to depart Australia. The family had a long history in Australia and the applicant’s son was born here in January 2011. They were well established in the Australian community and the applicant’s son was enrolled in Grade 1 at a local primary school, where he was progressing well. It would be extremely disruptive to him to be removed from the Australian education system, especially since he had never been at school in India; and·the applicant had never had any previous adverse dealings with the Department and this should count in her favour, especially as cancellation of her visa might expose her and her dependants to a 3 year bar pursuant to the operation of Public Interest Criterion 4014 (PIC 4014). It was noted that the imposition of a bar would depend on the applicant’s visa history subsequent to any cancellation by the Department but it was nevertheless a potential legal consequence affecting the applicant and her dependants. It was further submitted that this was a disproportionate consequence for someone in the applicant’s circumstances.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.Alison MercerMember

Ratio Decidendi

Legal Principle Established

As noted above, the Tribunal received a copy of the Department’s approval of Wahring’s Restaurant Pty Ltd ATF Wahring’s Restaurant Unit Trust as a standard business sponsor, valid from 12 July 2018 to 12 July 2023. On 2 October 2018, the Tribunal received a copy of the Department’s approval of the above employer’s nomination of the applicant for the position of Cook dated 18 September 2018.LEGAL CONSIDERATIONS, FINDINGS AND DECISION 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 A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. This condition require provides as follows [Tribunal’s emphasis]: [8107] (1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:(a) cease to be employed by the employer in relation to which the visa was granted; or(b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or(c) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.[8107] (2) If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:(a) cease to undertake the activity in relation to which the visa was granted; or(b) engage in an activity inconsistent with the activity in relation to which the visa was granted; or(c) engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.[8107] (3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):(a) the holder:(i) must work only in the occupation listed in the most recently approved nomination for the holder; and(ii) unless the circumstances in subclause (3A) apply:(A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or(B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or[(C) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note](C) if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor; and(aa) the holder must commence that work within 90 days after the holder’s arrival in Australia; and(b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and(c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must: (i) hold the licence, registration or membership; and (ii) comply with each condition or requirement to which the licence, registration or membership is subject.[8107] (3A) For subparagraph (3)(a)(ii), the circumstances are that:(a) if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or(aa) if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or(b) the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.[8107] (3B) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):(a) the holder must work only in the occupation or position in relation to which the visa was granted; and(b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.[8107] (4) If the visa is:(a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or(b) a Subclass 402 (Training and Research) visa; or(ba) a Subclass 420 (Temporary Work (Entertainment)) visa;the holder must not:(c) cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or(d) engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or(e) engage in work or an activity for an employer (within the meaning of subregulation 2.72A(8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified…