KAUR (Migration)

[2018] AATA 4165

KAUR (Migration) [2018] AATA 4165 (10 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs KAMALPREET KAUR
Mr GURWINDER SINGH GHUMAN
Mr JASKARAN SINGH GHUMAN

CASE NUMBER:  1714848

HOME AFFAIRS REFERENCE(S):           BCC2017/1329076

MEMBER:Karen McNamara

DATE:10 September 2018

PLACE OF DECISION:  Sydney

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 10 September 2018 at 2:31pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – restaurant manager – cancellation of sponsor’s approval as standard business sponsor – sponsor ceased trading – no new employment – not subject of an approved nomination – intention to stay permanently – purpose of visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 116, 140M
Migration Regulations 1994 (Cth), 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 5 July 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 applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was granted a Subclass 457 visa on 27 August 2014 having been sponsored by VIR Pty Ltd. The delegate records that the Department’s records indicate that the Department cancelled the sponsor’s approval as a standard business sponsor on 7 April 2017 under s.140M(1)(a). On 25 May 2017 the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant responded on the 30 May 2017 and the delegate states she took the submission into account, however cancelled the visa on 5 July 2017, under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applied to the applicant, that is, the ground in r.2.43(1) (I)(iv) that the sponsor has been cancelled or barred under section 140M of the Act.

3. For the purposes of the Tribunal’s jurisdiction, 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) of the second and third named applicants’ visas, the Tribunal has no jurisdiction with respect to them.

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

5. The applicant appeared before the Tribunal on 22 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant elected to use the interpreter only when she required.

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

   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)(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?

   s.116(1)(g) - prescribed ground

8. 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)(I)(iv), that is the sponsor has been cancelled or barred under section 140M of the Act is relevant.

9. In this case the delegate’s decision record, provided to the Tribunal by the applicant, confirms that the Department cancelled the sponsor’s approval as a standard business sponsor on 7 April 2017 under s.140M(1)(a).

10. The Tribunal therefore finds that a prescribed ground for cancelling the visa applies to the applicant.

11. 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

12. 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’.

13. The applicant was sponsored by VIR Pty Ltd to work in the occupation Café or Restaurant Manager. The applicant told the Tribunal that VIR Pty Ltd operated an Indian Restaurant at Blacktown NSW. She commenced working at the Indian Tandoori Restaurant in August 2014. In April 2017, the Department decided to take action against the sponsor under s.140M of the Act. The Department cancelled the sponsor’s approval as a standard business sponsor on 7 April 2017 under s.140M(1)(a). On 25 May 2017 the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant responded on the 30 May 2017 and the delegate states she took the submission into account, however cancelled the visa on 5 July 2017, under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applied to the applicant, that is, the ground in r.2.43(1) (I)(iv) that the sponsor has been cancelled or barred under section 140M of the Act.

14. At hearing the applicant provided the following oral evidence. The applicant told the Tribunal that she came to Australia on a student visa in 2009. She undertook courses in hairdressing, Cert 4 in Business, Diploma of Business Management, Advance HR Management and Cert 4 in Accounting. She commenced working with VIR Pty Ltd as a Restaurant Manager in August 2014 and ceased working with them in April 2017.

15. The Tribunal asked the applicant about her current purpose for remaining in Australia. She told the Tribunal she wants to stay in Australia permanently and that she came to Australia in 2009 and has returned to India on three occasions in 2010, 2012 and 2015. The Tribunal notes Department movement records indicate she returned to India in 2009 not 2010 as advised by the applicant. The Tribunal asked her why she has remained in Australia and she told the Tribunal because she has been living in Australia ten years and wants a future for her and her son. The Tribunal put to the applicant that this is not the purpose of a subclass 457 Visa, a temporary visa program.

16. The Tribunal noted the delegate’s decision record indicated that the applicant had advised the Department that she intended to obtain a new nomination. The delegate noted that the applicant had a significant period to do so and hasn’t yet. At hearing the applicant told the Tribunal that the Department had approved her work rights on 10 October 2017 but she had not found employment or a new sponsor.

17. The Tribunal asked the applicant about any hardship she might suffer as a consequence of a visa cancellation. She indicated yes and when asked by the Tribunal as to why she believed she would suffer hardship, she responded that it will be “very hard” and that “she can’t do anything here”. The applicant did not elaborate or provide compelling reasons as to the degree of hardship or explain what she meant by “very hard”. The applicant told the Tribunal that her husband is earning money driving taxis and that her brother gives her money. The Tribunal notes the applicant’s evidence that she has not worked since April 2017.

18. The Tribunal discussed with the applicant the circumstances in which the ground for cancellation arose.  She claimed that she did not know that the business was being monitored by the Department.

19. The applicant indicated that the Department is not concerned about her conduct. This is consistent with the delegate’s decision record. 

20. There are two consequential cancellations, the applicant’s dependants Mr Gurwinder Singh Ghuman and Mr Jaskaran Singh Ghuman. When asked if the applicant had any concerns about returning to India, she indicated she wanted a chance to remain in Australia. She has spent ten years here and wants to settle here. She told the Tribunal that her sponsor never terminated her employment and that she had been chasing him since the business shut down last year. When she did make contact with the sponsor he promised her work within three months hence why she did not look for another sponsor. The Tribunal told the applicant that the purpose of the 457 visa program is to fill a skill shortage on a temporary basis in a position which cannot be filled by the Australian workforce. Its purpose is not to remain in employment in Australia on a permanent basis.

21. The Tribunal notes the delegate’s decision record states that the sponsor ceased trading from 31 August 2016.  The applicant is noted in the same decision record, that she advised the Department that the sponsor never terminated her employment and had promised her work after three months on each occasion that she contacted him.  Because he promised her work, she didn’t look for new employment.

22. Regarding any consequential cancellations, the Tribunal noted that the visas of her husband and child may be cancelled. The Tribunal also explained that it does not have jurisdiction to review consequential cancellation decisions.

23. The Tribunal asked the applicant if there was any other relevant matter she wished for it to take into account. She indicated that her son did not want to leave Australia and that it would be difficult to leave. The Tribunal asked her why it would be difficult but the applicant did not elaborate or provide any explanation or reason. There is no evidence before the Tribunal about any hardship her son would suffer.

    Assessment of the Evidence

24. In exercising its discretion, the Tribunal has first considered the applicant’s purpose for remaining in Australia. The applicant made it clear that she wishes to stay in Australia permanently. The Tribunal explained to the applicant that this is not the purpose of a Subclass 457 visa. There is no evidence before the Tribunal to suggest that the applicant is currently working in skilled employment. The Tribunal is satisfied that the applicant ceased working with her sponsor in April 2017.

25. The Tribunal takes into account the purpose of the Subclass 457 visa program; to fill a temporary vacancy in skilled employment for an approved sponsor.  The Tribunal is not satisfied that the applicant is currently employed in those circumstances. Nor has she been since April 2017. The Tribunal gives these factors weight in favour of cancelling the visa.

26. The Tribunal has considered the applicant’s compliance with visa conditions. The applicant was granted her subclass 457 visa on 27 August 2014 to work for an approved standard business sponsor, VIR Pty Ltd in the occupation Café or Restaurant Manager.  The stay period of her visa was until 27 August 2018. She told the Tribunal she ceased employment with the sponsor in April 2017 and has not worked since. While the applicant’s visa was not cancelled by the delegate because of breach of conditions, the Tribunal notes it has now been approximately 16 months since the applicant has worked for an approved sponsor in a skilled occupation.

27. The applicant has indicated that she will suffer hardship if the visa is cancelled. However the Tribunal notes that the subclass 457 visa is a temporary visa granted to fill a skill shortage on a temporary basis in a position which cannot be filled by the Australian workforce. The applicant has not secured sponsored employment in a skilled occupation since she ceased working for her sponsor in April 2017.  The Tribunal is not satisfied, despite the applicant’s stated desire, that permanent residence and employment is a given outcome of holding a Subclass 457 visa. The Tribunal accepts that the applicant might suffer some financial hardship if the visa is cancelled but is not satisfied that it will be serious given that evidence before the Tribunal indicates the applicant has not been in paid employment since April 2017.

28. The Tribunal accepts that the ground for cancellation arose because of circumstances beyond the applicant’s control. It notes from the delegate’s decision record that the applicant has been cooperative with the Department and no concerns have been recorded in relation to her conduct. The Tribunal notes that the applicant currently holds a Bridging visa E and so she will not be detained if the visa is cancelled, so long as she departs Australia before that visa expires. On the basis of the evidence before it he Tribunal is satisfied there are no concerns regarding her conduct.

29. There is no evidence to indicate that Australia’s international obligations would or may be breached as a result of the cancellation.

30. Overall, having considered all the information before it, the Tribunal considers it significant that the applicant is not currently working in a skilled occupation as the subject of an approved nomination for a standard business sponsor. The applicant’s evidence indicates that she has not worked in a skilled occupation as the subject of an approved nomination for approximately 16 months. The Tribunal gives this significant weight in favour of cancelling the visa. The Tribunal also notes that the applicant has expressed a strong desire to remain in Australia. As discussed with the applicant at the hearing securing permanent residence is not the purpose of the Subclass 457 visa. While the applicant has indicated she will suffer financial hardship if the visa is cancelled the applicant did not elaborate or provide compelling reasons as to the degree of hardship. The Tribunal therefore is of the view the applicant’s desire to secure permanent residence in Australia is not consistent with a visa program designed to temporarily fill a skill shortage in Australia.

31. The Tribunal accepts that the circumstances in which the ground for cancellation arose that being her sponsor’s cancellation, were beyond the applicant’s control, however it notes that the applicant was the Restaurant Manager but was not aware that there were problems in the management of the business and finds this somewhat concerning that the applicant knew nothing of the Department’s monitoring of the business. The Tribunal takes into account that the Department has not been concerned about the applicant’s conduct and it has not recorded breaches of visa conditions.

32. Overall the Tribunal is of the view it is appropriate in this case to cancel the applicant’s Subclass 457 visa.

33. Considering the circumstances as a whole, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

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

    Karen McNamara
    Member