Kaur (Migration)

[2018] AATA 4169

Kaur (Migration) [2018] AATA 4169 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amandeep Kaur
Mr Jaskaran Singh Jaskaran Singh

CASE NUMBER:  1702972

HOME AFFAIRS REFERENCE(S):           BCC2015/2449471 CLF2017/16665

MEMBER:Antonio Dronjic

DATE:28 August 2018

PLACE OF DECISION:  Melbourne

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 second named applicant.

Statement made on 28 August 2018 at 4:22pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – working in the occupation listed in the approved nomination – working only in the business of the sponsor – ceased employment over 90 days – seeking a new sponsor – failure to inform the Department – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 348

Migration Regulations 1994, r 2.12

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Rani & Ors v MIMA (1997) 80 FCR 379
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Tien & Ors v MIMA (1998) 89 FCR 80
Visnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 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)(b) on the basis that the applicant was not working in the occupation listed in the most recently approved nomination for the holder and did not work only in a position in the business of the sponsor or an associated entity of the sponsor. 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.

   Background to the cancellation of the applicant’s visa

4. The decision record of 20 February 2017 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The tribunal summarises those reasons and findings as follows:

   ·On 24 November 2015, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 24 November 2019;

   ·The standard business sponsor who most recently nominated the applicant to work as a Café or Restaurant Manager was Anba Karas Pty Ltd;

   ·From November 2016 to February 2017 and on five occasions, the applicant was sighted serving customers and working at Big Fields Fruit Deli located at Brimbank Shopping Centre at Deer Park by the officers of the Department.

   ·A notice of intention to consider cancellation (‘NOICC’) was issued on 16 February 2017;

   ·The applicant was interviewed by the Department on 20 February 2017. During the interview, the applicant admitted that she worked 3-4 days per week at Big Fields Fruit Deli since October 2016 and that she was aware of the condition 8107 being imposed on her visa. She further stated that she was underpaid and exploited by her sponsoring employer; that she did not look closely at the conditions imposed on her visa and that she was not aware that she could not work for another employer. She stated that she and her husband have been living in Australia since 2008; that she has no other employer at the time of the interview and that, if her visa is not cancelled she will obey visa conditions and search for the new employment.

   ·On 20 February 2017, the delegate proceeded to cancel the applicant’s visa.

5. The applicants applied to the tribunal on 21 February 2017 for review of the visa cancellation and with their application submitted a copy of the primary decision record.

6. On 25 June 2018, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 28 August 2018.

7. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that her visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that she had not complied with the condition of her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(a)(i) that the applicant must work only in the occupation listed in the most recently approved nomination for the visa holder and that the visa holder must work only in a position in the business of the sponsor or an associated entity of the sponsor (8107 (3)(a)(ii)(B). The tribunal explained why it does not have jurisdiction in respect of the secondary applicant.

8. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

9. The applicant is 30years of age national of India. She is married and has a nine months old daughter. Her parents and two of her three siblings live in India. The highest level of education completed in India was the equivalent of year 12. She did not work in India nor does she have any property under her name. Her husband has completed a Graduation Level one Certificate in Arts (3 years University course) and worked as a sales person for the period of two years. The applicant does not have any relatives living in Australia.

10. She first came to Australia in June 2008 as a holder of a student visa. By 2011, she has completed several hospitality, cookery and business management courses. In 2013, she moved from Brisbane to Melbourne, enrolled into an Advanced Diploma of Management course which she never completed.

11. She was first granted a Subclass 457 visa in September 2014, based on the sponsorship and nomination from an Australian business, ANBA Karas Pty Ltd. Her nominated occupation was Café or Restaurant Manager and the visa was granted for the period of 12 months.

12. Her second Subclass 457 visa was granted on 24 November 2015 based on the sponsorship and nomination made by the same business and was, but for the cancellation, to remain valid until 24 November 2019. She confirmed in her evidence that she received a visa grant letter from the Department stating the visa period and the conditions imposed on her visa. She gave evidence that she knew that her visa was subject to some conditions but stated that she did not fully understand them.

13. She commenced her employment at ANBA Karas Pty Ltd on 17 September 2014; she was paid an annual salary of $55,000 per year in cash and she ceased her employment at the sponsoring business in September 2016. When I enquired as to whether she informed the Department of cessation of employment, the applicant stated that she did not and could not provide explanation as to why she failed to do so.

14. The applicant’s husband is and has been working as a truck driver since 2015. The Department removed his ‘no work’ condition initially imposed on the bridging visa ‘E’. Her bridging visa ‘E’ is still subject to ‘no work’ condition 8101. The applicant did not work since February 2017 and is currently neither employed nor subject to approved nomination by an Australian business.

15. The tribunal raised an additional issue with the applicant. She gave evidence at the hearing, that she ceased employment at ANBA Karas Pty Ltd in September 2016. Accordingly, the period during which she ceased employment exceed 90 consecutive days. This constitutes another breach of 8101 condition that was imposed on her Subclass 457 visa. She conceded this to be the case.

16. I explained to the applicant that, based on the evidence before me, I am satisfied that she breached the condition 8107 that was imposed on her Subclass 457 visa and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

17. I invited the applicant to state if there any matters she wants me to take into account in considering whether the visa should be cancelled.

18. The applicant asked the Tribunal to give her another 90 days to find a new employment. She stated that her husband’s employer will open a business in a regional Australia and employ her there. I noted that she had almost two years to secure employment with an Australian company that is approved business sponsor and has failed to do so. I further noted that she still has ‘no work’ condition imposed on her bridging visa. I observed that, according to her evidence, the proposed employer did not open the business at the time of this hearing; that if and when this business starts trading, it will need to apply for approval of sponsorship status and nominate her for the position. I enquired as to whether she has a signed employment agreement with this prospective employer and she stated that she does not.

19. I indicated that, considering the circumstances of this case and the length of time she had to secure employment in Australia, I will not postpone making decision in this matter. It is uncertain if and when her husband’s employer will open a business; what type of business will he open, will the business be able to secure sponsorship status and successfully nominate the applicant and when she will be able to commence employment at that business.

20. The applicant further stated that she would like to stay in Australia with her husband and daughter as India is ‘rapist country’.

21. 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

22. 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?

23. 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 condition 8107was attached to the applicant’s visa. This condition inter alia requires that the applicant works in the occupation listed in the most recently approved nomination, works only in a position in the business of the sponsor or an associated entity of the sponsor and that the period during which an applicant ceases employment does not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant's visa, which was granted on 24 November 2015 and which, but for its cancellation, was valid to 24 November 2019.

24. Based on the evidence before it, including the oral evidence from the applicant, I find that the applicant was not working as a Café or Restaurant Manager, being the occupation listed in the most recently approved nomination, from October 2016 until February 2017. I further find that, during the same period, the applicant was not working only in a position in the business of the sponsor or an associated entity of the sponsor. I find that the applicant ceased employment with the sponsoring business in September 2016 and that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly I find that the applicant did not comply with condition 8107.

25. For these reasons, I am satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

26. 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’.

27. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

28. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    The purpose of the visa holder’s travel to and stay in Australia

29. The subclass 457 visa is for the skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for ANBA Karas Pty Ltd as a café or restaurant manager on a temporary basis. The applicant lost her job in September 2016. She decided to remain in Australia and try to find a new employer. In October 2016, the applicant commenced employment at Big Fields Fruit Deli located at Brimbank Shopping Centre at Deer Park. She neither worked in her nominated occupation nor in the business of the sponsor or an associated entity of the sponsor until February 2017.

30. The applicant claims in her evidence that she was not aware that she was only allowed to work in a position in the business of the sponsor. I do not accept this evidence as the applicant confirmed in her testimony that she received a Subclass 457 visa grant letter from the Department which contained the explanation of the conditions imposed on her visa.

31. The applicant ceased her employment at ANBA Karas Pty Ltd in September 2016 and, as of the day of this decision, she did not work in Australia, apart from October 2016 to February 2017 for the business that was not her sponsor.

32. Based on the evidence before me, I am satisfied that, as of the day of my decision, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.

33. As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for her sponsor in September 2016.  I give significant weight to this consideration.

    The reason for and extent of the breach

34. The ground for cancellation arose in October 2016 when the applicant commenced employment at Big Fields Fruit Deli at Deer Park. She continued to work at this business until February 2017. For the period of more than four months, she neither worked in her nominated occupation nor in the business of the sponsor or an associated entity of the sponsor. This represents a significant breach of condition 8107 and I give significant weight to this consideration.

35. The applicant ceased working with her sponsoring employer in September 2016. She had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of her visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant did not work in Australia from September 2016 until present time (with the exemption of four months employment at Big Fields Fruit Deli from October 2016 until her visa was cancelled in February 2017). She neither informed the Department of cessation of employment nor was she able to explain why she failed to do so.

36. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after almost two years since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

37. The applicant claims that she ceased employment at ANBA Karas Pty Ltd in September 2016 because she was underpaid and exploited by her sponsoring employer. Despite of this claim, she did not inform the department of her being exploited until the time of interview on 20 February 2017. She did not inform the Department of cessation of employment at the sponsoring business. Nor she informed the Department that she commenced employment at Big Fields Fruit Deli, a business that was not her sponsor or an associated entity of the sponsor.

38. The Tribunal finds that the circumstances in which the ground for cancellation arose were brought about by the applicant, and were not beyond her control. I give significant weight to this consideration.

    Past and present conduct of the visa holder towards the department

39. As I previously found, the applicant did not inform the department that she was underpaid and exploited by the sponsoring business until the time of interview on 20 February 2017. She did not inform the Department of cessation of employment at the sponsoring business. Nor she informed the Department that she commenced employment at Big Fields Fruit Deli, a business that was not her sponsor or an associated entity of the sponsor.

40. She committed multiple breaches of 8107 condition that she knew was imposed on her visa. I give significant weight to this consideration.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

1. I have taken into consideration the applicant’s evidence that In India, she has completed an equivalent of year 12 and that her parents and two siblings live in India. I considered her evidence that her husband completed a Graduation Level one Certificate in Arts and worked as a sales person for the period of two years; that the applicant does not own any property under her name in India and does not have relatives in Australia.

2. I accept that the applicant has been living in Australia since June 2008 and has completed various educational courses. I accept that the applicant would like to stay in Australia with her husband and daughter. However, I do not accept that the applicant wants to stay in Australia because India is ‘rapist country’. She provided no evidence to support this claim. 

3. I considered her statement that, if the Tribunal gives her another 90 days, she will secure employment. I give limited weight to this evidence considering that she had almost two years to secure employment with an Australian company that is approved business sponsor and has failed to do so.

4. I accept that leaving Australia may involve some hardship to the applicant and her family. Balanced against any potential hardship to the applicant and her family that may result from the visa cancellation, is the fact that the applicant came to Australia on temporary visa which created no expectation of remaining in Australia permanently.

5. As I explained to the applicant at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.

6. I am satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once she finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

   Whether there are mandatory legal consequences, such as whether cancellation would
   result in the visa holder being unlawful and subject 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

7. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow her to remain in Australia. If that is the case she has the opportunity to depart Australia. Whilst her failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

8. The Tribunal is mindful that Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

   Whether there would be consequential cancellations under s.140

9. Whilst the applicant’s husband’s visa was also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his husband.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

10. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

11. There is little in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

    The impact on any victims of family violence

12. There is no evidence before the Tribunal regarding this matter.

13. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

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

    Antonio Dronjic
    Member