Kaur (Migration)

[2018] AATA 2083

Kaur (Migration) [2018] AATA 2083 (17 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Tejinder Kaur
Mr Manjinder Singh

CASE NUMBER:  1700849

HOME AFFAIRS REFERENCE(S):           BCC2016/3350923

MEMBER:John Cipolla

DATE:17 May 2018

PLACE OF DECISION:  Brisbane

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 17 May 2018 at 12:56pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Ceased employment for approved sponsor – Sponsorship for another visa – Engagement in duties outside position description – Inability to secure approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, 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 16 January 2017 made by a delegate of the Minister for Immigration and Border Protection (the Minister) 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 had breached a condition attached to her Subclass 457 visa, namely condition 8107(3)(b) which states that if a visa holder ceases employment , the period during which the visa holder ceases employment must not exceed 90 days. 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 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 applicants appeared before the Tribunal on 16 May 2018.  The applicant’s husband, the second named applicant, who held a visa as a member of the family unit of the applicant did not elect to provide evidence and the applicant advised that he attended the hearing to provide her with support.

5. The applicants were represented in relation to the review by their registered migration agent.  The agent did not attend the review hearing.

6. At the outset of the review hearing the Tribunal explained details about the merits review process and the relevant issues in the review.  The Tribunal noted that these were whether the ground for cancellation of the applicant’s Subclass 457 visa existed, and secondly, whether or not the visa should be cancelled.

7. The applicant advised the Tribunal that she arrived in Australia in 2009 as the holder of a Subclass 572 Student visa.  The Tribunal asked the applicant about her study history in India and she advised she completed high school and a Bachelor of Arts at the Punjabi University majoring in history, social studies and the Punjabi language.  Approximately a year later, in 2009, she decided to travel to Australia to complete studies in Hairdressing and Beauty.  This was funded by her father with supplementary support from her husband whom she had married in 2008. The applicant advised that she completed studies in hairdressing, beauty, salon management, and that her ultimate aim was to open her own business in Australia.  The applicant advised that she also completed diploma courses in business. 

8. The Tribunal asked the applicant how she had managed to acquire a Subclass 457 visa in 2014.  The applicant advised that she responded to an online advertisement for a Hair and Beauty Salon Manager and was successful in that application.  The Tribunal asked the applicant about her role and she advised that it involved looking after “the girls”, looking after stock and dealing with feedback from customers. 

9. The Tribunal asked about the physical characteristics of the business and the applicant advised that it was a regular shopfront hairdressing salon with five chairs and around two to four hairdressers.  She advised that around 200 customers attended the salon on average each week and that there quiet times early in the week.  She advised that there was a small area of the shop reserved for eyebrows and waxing but there was no beautician employed.  She advised the owner of the business was an Australian citizen of Pakistani origin. 

10. The Tribunal asked the applicant about her understanding of the conditions attached to her Subclass 457 visa.  The applicant advised that the visa was for 4 years, that her annual salary was $55,000.00 and that she was paid superannuation.  However, the applicant claimed that her sponsor did not pay her superannuation for the last three months that she worked for him.

11. The Tribunal asked the applicant why she decided to leave the business in March 2016.  The applicant stated that she was being asked to engage in duties outside those specified in her contract of employment, such as hairdressing jobs, like haircuts and colouring.  The Tribunal noted, that given the small size of the business that this may be expected and the Tribunal asked the applicant to quantify how she spent her week at work in a salon management role given the small size of the business.  The applicant advised that she would book appointments, organise products, and undertake promotions, for example offering cheap haircuts to men on a Monday and Tuesday, times that were traditionally quiet.  The applicant added that additional reasons that led to her leaving her job were the long hours that she was expected to work, having to take rubbish out, having to take linen to the laundry and the non-payment of superannuation for the final three months of her employment.  The applicant stated that in the final weeks of her employment before she decided to leave the sponsor was not rostering her on shifts.

12. The Tribunal asked the applicant whether she attended the Department of Immigration and Border Protection (the Department) to express that she was having problems with the sponsoring business.  The applicant advised that she did attend the Department’s Brisbane office and that she was advised that there was a specific number that she should call with regard to her 457 visa.  The applicant advised that she called the number and was number 156 in line to speak to a Departmental Officer and that she waited for an hour without success and then hung up.  The Tribunal enquired whether the applicant pursued the issue further with the Department and she advised that she did not.

13. The Tribunal noted that condition 8107 that was attached to her Subclass 457 visa was such, that if she ceased employment with her sponsoring employer, she had 90 days in which to find another business willing and able to sponsor her as a 457 visa holder.  The Tribunal noted that based on the evidence before it, this did not transpire and that this formed the basis of the cancellation of her Subclass 457 visa.  The applicant conceded that this was correct that she was unable to find a standard business sponsor willing to nominate her for a Subclass 457 visa and the she conceded the ground for cancellation of her visa existed.

14. The applicant did however state that she went online and found a prospective employer that was willing to consider sponsoring her for a different visa a Subclass 187 visa, that employer was Brisbane Career College Pty Ltd based in Canberra and the position was for an Office Manager.  The applicant advised that she met with the proprietor of the business at a Coffee Club in a shopping mall in Brisbane.  She advised that the application by Brisbane Career College was lodged in April 2016 and her associated visa application was lodged in May 2016.

15. The Tribunal noted that both the nomination application by the Brisbane Career College and the associated application by the applicant were refused by the Department, the nomination in October 2016 and the visa application in December 2016.  The applicant has outstanding merits review with regards to the refusal of her Subclass 187 visa.

16. The Tribunal, noted that the 187 nomination lodged by Brisbane Career College Pty Ltd in April 2016 was refused in October 2016.  The Tribunal asked the applicant whether she had been in touch with the nominating business since that time to ascertain their ongoing commitment to nominating her.  The applicant claimed that she had contact with the manager of the business around six to seven months ago. The Tribunal asked the applicant whether she had any evidence that the nominating business wished to continue the nomination of her for a Subclass 187 visa and she advised she did not.

17. The Tribunal asked the applicant what hardship she believed she would experience if her visa remained cancelled.  The applicant stated that it was hard to find a job in India and that she and her husband had spent an extended time in Australia.

18. The Tribunal asked the applicant how she and her husband were surviving since she ceased working in March 2016 and lost her right to work.  The applicant advised that her husband worked in a fish and chip shop and they had been surviving on his salary alone.  She advised that he paid rent, for the upkeep of their 2009 Toyota Corolla and for their mobile phone plans and other cost of living expenses.  The applicant claimed to have not worked in any capacity since March 2016.  The Tribunal, noting this fact, asked the applicant how she passed her time since she ceased work and she advised that she watched lots and lots of movies.  The applicant had nothing further to add and the hearing concluded.

    Does the ground for cancellation exist?

19. A visa may be cancelled under s.116(1)(b) of the Act 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. Of relevance in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.

20. The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 4 March 2014 on the basis of a nomination by F Massan Pty Ltd. The sponsor advised the Department that the applicant ceased employment with them effective 15 June 2016.  The applicant has confirmed that it was in fact March 2016 when she ceased employment with her nominating business. The evidence indicates that the applicant was unhappy about having to perform duties that were outside the parameters of her employment contract.

21. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment with F Massan Pty Ltd.  On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b). 

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

23. 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. However, 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’.

24. The Tribunal has first considered the purpose of the applicant’s travel to and stay in Australia. At the hearing the applicant provided details of her immigration history. She travelled to Australia in 2009 as the holder of a Student visa and completed studies in Hairdressing and Salon Management followed by diploma courses in Business Management. After the applicant completed her studies she went online to look for work and found a position with a Hairdresser to work as a Hair Salon Manager.  This business, F Massan Pty Ltd, agreed to sponsor her for a Subclass 457 visa and the applicant was granted a Subclass 457 visa, valid for 4 years, on 5 March 2014.  The applicant claimed that the owner of the business made her engage in a range of duties that were outside those contained in her position description, such as haircutting and colouring and taking out rubbish and dealing with laundry.  She also claims that she was not paid superannuation for the past few months of her employment but no evidence corroborative of this has been provided.  The applicant claims that she was not rostered on to work in the last few months of her employment and that she ceased work with her nominating employer in March 2016.  There is no evidence that the applicant took any proactive steps to bring these issues to the Department’s attention or indeed to the attention of Fair Work Australia.

25. The applicant submitted that she had made efforts to find another 457 sponsor after ceasing employment with F Massan Pty Ltd.  She advised that in May 2016 she lodged a Subclass 187 visa application on the basis of a prospective sponsorship with Brisbane Career College Pty Ltd, whom the applicant claims wanted her to work for them in the position of Office Manager.  The application made by Brisbane Career College Pty Ltd was refused by the Department in a decision made on 19 October 2016.  The applicant’s associated 187 visa refusal was refused by the Department on 1 December 2016.  The applicant advised at review hearing that she is unsure whether Brisbane Career College wishes to pursue their sponsorship of her and claims she has had no contact with them for at least six to seven months and no evidence to corroborate their ongoing interest in her.  The Tribunal notes that there are outstanding merits review applications pertaining to the applicant and Brisbane Career College before the Administrative Appeals Tribunal. 

26. At the hearing, the Tribunal explained to the applicant that the purpose of the Subclass 457 visa is for her to work for an approved sponsor in an approved occupation and noted that since ceasing employment with F Massan Pty Ltd that she has not been able to secure another nomination for a further Subclass 457 visa since March 2016.  The Tribunal notes that the applicant had merely managed to secure a sponsorship from another business for a Subclass 187 visa, which has since been refused by the Department. The Tribunal notes that the purpose of the temporary skilled migration program is to fill skills shortages and that if the applicant experienced difficulty in securing an approved nomination then this meant that she was not able to fulfil the purpose of the 457 visa regime and that this weighed strongly in favour of cancelling the visa.

27. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted the Subclass 457 visa was to work in the occupation of Hairdressing Salon Manager for F Massan Pty Ltd.  The Tribunal acknowledges that the applicant made some effort to find another 457 sponsor, however, she was only able to find a business, Brisbane Career College Pty Ltd, to sponsor her for a Subclass 187 visa as an Office Manager and that nomination application has been refused and is subject to merits review.  The Tribunal also notes that there is no evidence before the Tribunal at review that indicates that this position is still open to the applicant.  .

28. The evidence before the Tribunal indicates that it has been more than 25 months since the applicant ceased working for her approved sponsor and to date the applicant has not been able to secure another approved nomination under the 457 visa programme.

29. The Tribunal acknowledges that merits review pertaining to a Subclass 187 visa application and the associated nomination refusal is pending but, as discussed, the applicant is unable to provide any evidence that this position is still available to her having regard to the fact that the nomination was lodged in April 2016 over 2 years ago.  The Tribunal is required to conduct reviews in a fair and efficient manner. The Tribunal is satisfied that the applicant has had a fair opportunity to secure another nomination and, in the circumstances, does not consider it appropriate to delay making its decision until the outcome of the merits review application made by the applicant and Brisbane Career College Pty Ltd.

30. Having regard to the purpose of the Subclass 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for her approved sponsor and her inability to secure another approved nomination since that time, weigh in favour of cancelling the Subclass 457 visa. 

31. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(b) the applicant has complied with visa conditions. The Tribunal is also satisfied on the evidence before it that the applicant has been cooperative with the Department. 

32. The Tribunal has also considered the circumstances in which the ground of cancellation arose. In this case, the ground of cancellation arose 90 consecutive days after the applicant ceased employment with the sponsor as she was unable to secure another nomination within the 90 day period. The applicant claimed that she made efforts to obtain another nomination from an approved sponsor, which the Tribunal accepts. However all she was able to secure was a nomination for a Subclass a 187 visa as an Office Manager, which as noted has been refused by the Department.  The Tribunal considers that it is the applicant’s responsibility to ensure that she properly understood the conditions of her visa. The evidence indicates that the applicant has not been able to secure another nomination despite the passing of over 25 months.

33. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. At the hearing the applicant stated that if the visa is cancelled she will find it hard to secure employment in India.  However, the Tribunal notes that in the period the applicant has been in Australia she has acquired a range of qualifications and has direct work experience that should make her more competitive in the Indian job market.

34. The Tribunal accepts that the cancellation will result in the consequential cancellation of her spouse’s visa. The Tribunal, as noted, is satisfied that the applicant is well educated and she has a good command of the English language and has gained skills and experience during her stay Australia. These factors, in the Tribunal’s view, would advantage the applicant and her husband in their home country. Therefore, while the Tribunal acknowledges the hardship that the applicants may initially experience upon return to their home country, it considers that they will be able to overcome that hardship and re-establish themselves in their home country.

35. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicants currently hold Bridging visas and will only be subject to detention if they do not continue to hold visas to remain lawfully in Australia or refuse to depart voluntarily. The applicants will not have to immediately depart Australia if the visa is cancelled as they have outstanding merits review pertaining to the applicant’s Subclass 187 visa refusal. 

1. In relation to consideration regarding international obligations, there is no evidence before the Tribunal, and the applicants have not claimed, that any international obligations would be breached as a result of the cancellation.

2. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant has made some effort to find a nomination with a business for a Subclass 187 visa, but there is no evidence that this business is proactive in its ongoing support of the applicant. The Tribunal also acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant has generally complied with visa conditions and has been cooperative with the Department. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the Subclass 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor over 25 months ago. As indicated above, the applicant has an ongoing application for merits review and if that is unsuccessful she would not be precluded from lodging an application for another temporary visa offshore in the future.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

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

   John Cipolla
   Senior Member