Kaur (Migration)

[2018] AATA 3946

Kaur (Migration) [2018] AATA 3946 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amritpal Kaur
Mr Jagvir Singh
Miss Alivia Singh

CASE NUMBER:  1703243

HOME AFFAIRS REFERENCE(S):           BCC2016/3565444

MEMBER:Bridget Cullen

DATE:20 August 2018

PLACE OF DECISION:  Brisbane

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 20 August 2018 at 5:39pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – employed by sponsor in the position – applicant’s absence on site visits – no evidence of work undertaken – relevant skills in the role – tasks performed – employment difficulty in home country – skills assessment – child’s schooling – limited family support in home country – child’s age – decision under review set aside


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

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 23 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 on the basis that the first-named applicant ('the applicant') had not complied with condition 8107(3)(a)(i) of her 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 second and third named applicant's 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 their 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 the second or third named applicants.

4. The applicants appeared before the Tribunal on 6 August 2018 to give evidence and present arguments.

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.

7. Relevantly, to this case, these include the ground set out in s.116(1)(b).

8. 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

9. 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 8107 (3)(a)(i) attached to the applicant's visa.

10. This condition requires that the first applicant (“applicant”) must work only in a position in the business of her approved standard business sponsor or an associated entity of the sponsor. The delegate cancelled the applicant's visa under s.116(1)(b) of the Act because the delegate considered that she breached condition 8107(3)(a)(i), because the delegate formed the view that she was “not employed by her sponsor in the position of customer service manager, which is the occupation listed in the most recently approved nomination for the visa holder.” In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to remain cancelled.

11. The applicant was nominated in relation to a standard business sponsorship by the business named “Australian Sports Academy Pty Ltd” (ASA), in the position of Customer Service Manager as outlined in ANZSCO.  At the time the sponsorship was approved, ASA was located at Sports Drive and Morala Avenue, in Runaway Bay, Queensland.

12. On 15 January 2014 and 12 March 2014, Department of Immigration and Border Patrol officers visited ASA’s Runaway Bay address.  The applicant was not present on either day.  The delegate’s decision record, provided by the applicant to the Tribunal, reflects that ASA’s Runaway Bay premises were empty on 12 March 2014. DIBP officers were told that ASA had relocated to Level 2, 10 Scarborough Street in Southport the previous week. 

13. DIBP visited the Scarborough Street premises on 12 March 2014.  The decision record reflects that there was no signage or information at this address.  The receptionist told the DIBP officers that no visa holders sponsored by ASA were present, and that she thought they were “hired out”.  The applicant says that, as ASA was relocating to Southport, this is the reason nobody was onsite at the time of the DIBP visits on 15 January 2014 and 12 March 2014.

14. On 20 May 2014, DIBP again visited the Scarborough Street premises.  They were told that the applicant was no present, and that an “Amit Pal” worked there as a customer service manager, and also worked at a restaurant.  The applicant says that she has never worked in a restaurant, and that she was onsite at the time of this visit.

15. On 3 December 2015, DIBP again visited the Scarborough Street premises.  Upon entering, they were met by Erica Lang, who is the RTO Manager of Australian Colleges of Further Education (ACFE).  ASA and ACFE are related entities, to the extent that they share a common director, and also share business accommodation. Ms Lang is also a co-director of ASA. 

16. According to the decision record, Ms Lang, appeared not to recognise the applicant’s name, and “then said, after a pause, that visa holder had gone back to India for Christmas holidays.  However, departmental records show that the visa holder was in Australia at the time.”  The applicant says that she received a call from the DIBP and told them that she was in Australia, not India, on 3 December 2015.  She says that Ms Lang must have confused her with employee named Ameeta, and that she told the Department she was travelling to India in January of 2016.

17. On 18 December 2015, ASA notified the Department that it had moved to Level 1, 10 Scarborough Street in Southport.  On 17 March 2016, DIBP officers again visited this address, and spoke with Nikki Bolt, who told officers she was the supervisor of International Operations.  Ms Bolt told the officers that she did not recognise the applicant by name or photo.  Another employee, Amy, told the DIBP that she also did not recognise the visa holder.  Both Ms Bolt and Amy told officers the applicant may work in a different section.

18. The applicant says that she was in India from 17 January 2016 until 1 April 2016, and that both Ms Bolt and Amy had been hired after she left for India.  As such, the applicant says that they would not recognise her. 

19. On 16 May 2016, the DIBP again visited the Scarborough Street premises.  Ms Lang met them, and told them that she did not recognise the applicant’s name or photo.  She told officers that the applicant “had last been at work on Friday and was not sure why she was not at work. She then said that she was not there because she was “offsite conducting marketing.”

20. According to the decision record, neither Ms Lang, nor Ms Bolt, were able to provide any evidence of work done by the applicant in her role as “Customer Service Manager”. The applicant disputes that she was not onsite – she says that she was onsite, spoke to the DIBP, and does not know why Ms Lang gave incorrect information to the DIBP in relation to her whereabouts.

21. On the basis of the site visits, the DIBP officers concluded that the applicant’s:

    ·Absence from her purported place of employment on seven separate occasions; and

    ·The varying explanations for her whereabouts; and

    ·The inability of the persons questioned by officers at her purported place of employment to provide any evidence of work undertaken by her

    were strong evidence that the applicant does not work for her sponsor or that she does not work for her sponsor in the nominated occupation of Customer Service Manager.

22. The applicant disputes the information gathered by the Department during its investigations.  She says that she has always, in her time working for ASA, worked as a customer service manager, and that she has never worked in a restaurant.  She says that she was frequently required to work off-site. The applicant told the Tribunal that she would meet unhappy students offsite, wherever it suited them, and would do whatever she could in her role to make them happy.  There is no information, other than the uncorroborated assertion of an unnamed reception staff member, capable of demonstrating the applicant in fact worked in a restaurant, or for a business other than ASA.

23. The Tribunal acknowledges that the Chief Executive Officer of the sponsor, ASA, Mr Ahmed Sokarno, has provided a letter of support indicating that the applicant reported directly to him.  Mr Sokarno alleges that neither Ms Lang or Ms Bolt, were involved with the applicant.  He says that she performed the role of Customer Service Manager.

24. The applicant has also provided some personal bank records and PAYG statements, indicating that some amounts have been paid to her by ASA.

25. The Tribunal places little weight on the statement of Mr Sokarno, who did not appear before the Tribunal to give evidence.  As it would be in his interests to support the applicant’s version of events, the Tribunal does not consider his evidence, untested by the Tribunal, to carry any real significance in refuting the extensive investigation conducting by the Department.

26. There is no information before the Tribunal capable of explaining why Ms Lang, a co-director of the sponsoring company, did not recognise the applicant.  There is no evidence substantiating that Ms Bolt, and Amy, were hired after the applicant departed for India in January of 2016.

27. In circumstances where the DIBP conducted 7-separate site visits to what was purportedly an educational “campus” where the applicant worked as a Customer Service Manager, the Tribunal finds that the evidence supports a finding that the applicant was not working in the role.   The Tribunal is prepared to accept that the applicant did perform some work for ASA, and that it may have involved discussions with ASA students.  The description of tasks performed by the applicant, as described by her during the hearing, support a finding that the tasks were of a lower level, and administrative nature.  Essentially, they involved discussing a lack of satisfaction with students in order to avoid negative reviews by the students of ASA.  The tasks performed by her are lesser than the scope of higher level duties that would be performed by a “manager”, but were cast in the nature of customer service such that her maintaining a belief (albeit incorrectly) she was working in the role of a Customer Service Manager are not disingenuous.

28. The Tribunal considers it possible that the applicant genuinely believed, in performing some of these tasks (obtaining feedback from students, managing complaints) that she was actually performing the duties of a Customer Service Manager.  Regardless, the Tribunal must consider the actual nature of the work performed, and whether the tasks correspond to the expected duties of a Customer Service Manager as set out in the nomination documents. 

29. There is no evidence of the applicant, for example, setting up systems to improve customer satisfaction, to train staff, to report to any higher level persons, or develop any strategic plans.  On the evidence before it, the Tribunal considers although the applicant may have been involved in some customer service for ASA, the evidence supports a finding that the applicant was not working in the position of customer service manager as outlined in ANZSCO.

30. Having regard to the evidence before it, including the applicant’s responses to the Department as recorded in the delegate's decision, the Tribunal is not satisfied that the applicant was employed in the role of Customer Service Manager. As such, the applicant was in breach of condition 8107, specifically condition 8107(3)(a)(i), of her visa. The Tribunal is therefore satisfied that a ground for cancellation exists under s.116(1)(b).

31. 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

32. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. In considering whether to exercise its discretion to cancel the applicant's visa, the Tribunal has had regard to the relevant circumstances, including but not limited to, matters identified in the Department's Procedures Advice Manual PAM3 'General visa cancellation powers'.

33. The guidelines include factors such as the purpose of the applicant's travel to Australia; the degree of hardship that may be caused by the cancellation to the applicant and other family members; the circumstances in which the ground for cancellation arose; the applicant's past and present behavior towards the Department; whether the cancellation would lead to removal in breach of Australia's obligations under relevant international agreements, including Australia's non-refoulement obligations; and any other relevant matters raised by the applicant.

34. The Tribunal has considered matters raised by the applicant in her interviews with the Department, as recorded in the delegate's decision, and the oral evidence provided at the tribunal hearing. These are discussed below.

    ·The purpose of the visa holder's travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

35. The applicant was granted a subclass TU-572 student visa on 7 April 2008.  She has remained in Australia on a series of student and bridging visas until 14 June 2013, when she was granted a Temporary Business Entry (Class UC) Subclass 457 visa, for temporary work purposes, valid for 4-years.

36. On 14 November 2016, the applicant was nominated for a Temporary Business Entry (Class UC) Subclass 457 visa, as a Community Worker (ANZSCO 411711), by Staff Connections Pty Ltd.  On 27 July 2017, the nomination was refused by the Department, on the basis that the delegate found the applicant had not demonstrated that she has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Community Worker, and therefore did not satisfy paragraph 457.223(4)(da).  On 7 August 2017, the applicant lodged a review of the visa refusal in the Tribunal.  This Tribunal is not reviewing the 27 July 2017 visa refusal decision.  However, as it is relevant to the applicant’s need to remain in Australia, and purpose of travel, the Tribunal notes that the Applicant has provided the Tribunal a positive skills assessment, dated 12 September 2017.

37. The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The purpose of the visa is to enable an employer to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The occupation of Community Worker is one of a limited number of occupations listed by the Minister as an occupation that can form the basis of an approved nomination.

38. At the hearing the applicant confirmed that she originally came to Australia for the purpose of study, however she said she liked the country and wanted to stay. She said that she found Australia to be a better place for women to have positive employment opportunities.  She said that when she returned to India with her young daughter, who is presently aged 9, that her daughter spent a brief period visiting a local school during their holiday.  Her daughter was shocked that they utilised corporal punishment on the pupils, and also dismayed at the way the girls in the classroom were treated.  She does not want to raise her daughter in India, and in particular, not in the remote village that she came from.

39. The purpose of the applicant's travel to and stay in Australia is now as a Community Worker on a subclass 457 visa.  Her sponsor has provided a letter of support, dated 24 July 2018, to the Tribunal:

    Amit has been working for Staff Connections Pty Ltd as a full time Community Support worker, since March 2017. During this time, we have found Amit to be a very honest, hard working employee.”

40. Although the applicant’s visa in relation to this role had been refused, as her skills assessment had not been met at the time of the Department’s refusal, she has since provided that to this Tribunal.  The sponsor, Staff Connections Pty Ltd, holds an approved nomination in relation to the role it wishes to nominate the applicant for.   The sponsor indicates that it would cause the physically and mentally disabled clients the applicant cares for significant stress if there needed to be a change in care workers, if the applicant’s visa were cancelled.

41. Although the applicant has no expectation of permanency, the Tribunal accepts that continuity of care for the sponsor’s clients affords a basis for finding there is a need for the applicant to remain in Australia, in the shorter term future.  In this context, the Tribunal places some weight on this consideration as a reason not to cancel the visa.

    ·The extent of compliance with visa conditions

42. The Tribunal notes that Condition 8107 is in place to ensure the integrity of the subclass 457 temporary business program, the purpose of which is to meet Australia's short-term needs for skilled workers whilst maintaining important public policy safeguards against displacement of Australians from employment opportunities. The Tribunal gives significant weight to this factor in considering whether to cancel the visa because a breach of condition 8107 is a breach of an important and fundamental condition of a subclass 457 visa.

43. The delegate found that the applicant breached condition 8107 because she was not working in the nominated occupation. The Tribunal has also found that the weight of the evidence supports the fact of this breach.

44. The Tribunal finds that the tasks of the applicant's nominated position have been significantly conflated.  Although the Tribunal is not satisfied that the applicant was ever employed as a Customer Service Manager, there is no evidence that the applicant understood that the lesser tasks she was performing fell outside the expected role of a Customer Service Manager.  However, given the finding of the applicant's non-compliance with condition 8107, the tribunal places significant weight on this consideration as a reason to cancel the visa.

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

45. While the cancellation means that the applicant would have to return to the India, the applicant has only ever held a temporary visa. The Tribunal finds that she would not have had a real expectation that she would be able to remain in Australia on a permanent basis. The Tribunal is satisfied that the applicant will be able to work and support herself in India where she speaks the language, and lived most of her life.

1. The applicant’s husband gave evidence that if he were forced to return to India, he would find it very difficult to obtain employment.  This is because, prior to leaving India to join the applicant in Australia, he effectively deserted his role in the Indian Army, where he was a general duty soldier.  He gave evidence that he did not advise the Indian Army that he would not be returning, and says that he could be prosecuted on return.  Without further information, the Tribunal is not prepared to find that he would be exposed to any penalties, but does accept that abruptly leaving any employment without the appropriate notice may make obtaining new employment all the more difficult.  The Tribunal accepts that there would be, at least in the shorter term, a degree of financial hardship to the applicants were they forced to return to India in the shorter term.

   ·Circumstances in which ground of cancellation arose.

2. 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.

3. While the tribunal accepts that the applicant may not have been able to control the actual nature of her work, there were many pieces of information that should have made the applicant aware of the conditions attached to her subclass 457 visa. She should have been aware that the work she was performing offsite for ASA was not aligned with that of a Customer Service Manager, but was of a lesser, administrative nature.  Such sources of information are available on the form itself and in publicly available information on the Department's website. The Tribunal considers that that ignorance of her obligations do not excuse the applicant's non-compliance with condition 8107.

   ·Past and present conduct of the visa holder towards the department.

4. There is nothing before the Tribunal as to the applicant's past and present behaviour towards the Department such that it might be regarded either as a reason to, or not to, cancel the visa.

   ·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.

5. While the Tribunal accepts that cancellation of a visa would normally result in a person becoming unlawful and subject to detention, the Tribunal is satisfied that the applicant has applied for, and been granted, bridging visas which are valid until the outcome of the Tribunal review.

6. Accordingly, it does not accept that indefinite detention is a possible consequence of cancellation, as a bridging visa would continue to be available to the applicant if she needed this to make arrangements to depart, or to lodge a judicial review application, in the event that the Tribunal review is unsuccessful.

7. The Tribunal accepts that, if the visa cancellation is affirmed, the applicant will be subject to s.48 of the Act, which significantly limits what future onshore applications she may be able to make.

   ·Whether there would be consequential cancellations under s.140.

8. The Tribunal is satisfied that the applicant's husband (the second named applicant) and daughter (the third named applicant) would be subject to consequential cancellation of their subclass 457 visas pursuant to s.140 of the Act if the decision to cancel the applicant's subclass 457 visa is affirmed.

   ·Whether any international obligations would be breached as a result of the cancellation.

9. 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).

10. There is no claim or any evidence before the Tribunal that if the applicant returns to India she will face persecution, death, torture, cruel, inhuman or degrading treatment or punishment. The Tribunal has considered the UN Convention on the Rights of the Child (CROC) in relation to the applicant's daughter, but is not satisfied that any of its principles will be breached if she returns to India with her parents.

11. The Tribunal therefore attributes no weight to these considerations in deciding whether the applicant's visa should be cancelled.

    ·Any other relevant matters

12. The Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa.

13. Significantly, from the Tribunal's point of view, the applicant's subclass 457 visa with Staff Connections Pty Ltd has not yet been approved.  However, the applicant has now provided the skills certificate required, and it is conceivable that a future Tribunal would remit the visa refusal on the basis of the new information in the form of the skills assessment.

14. The Tribunal is also conscious that the applicant’s daughter, now aged 9, has been entirely schooled in English, in Australia.  She does not speak or write in Punjabi.  The Tribunal considers this a significant factor in favour of not cancelling the visa, in that the applicant’s daughter will need a period of emotional and cultural adjustment in order to successfully transition to schooling in India.

15. The Tribunal has also been told that since the applicant has been in Australia, her father has passed away, and her mother has tragically died through suicide.  Following their mother’s death, the applicant’s brother left India to move to Canada.  The applicant’s husband’s family is presently living in Australia.  As such, between the applicant and her husband, they have very limited family support remaining in India.  They have built a network of friends in the Australian community.  The Tribunal considers that allowing the applicant’s to remain in Australia, at least in the shorter term while their daughter is young and they have the support of friends and family in Australia, is a factor that weighs in favour of not cancelling the visa.

    Cancellation in the particular circumstances of this case.

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

    DECISION

17. 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.

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

    Bridget Cullen
    Member