Kaur (Migration)

[2018] AATA 1776

Kaur (Migration) [2018] AATA 1776 (26 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Harmeet Kaur

CASE NUMBER:  1620822

DIBP REFERENCE(S):  BCC2016/3051842

MEMBER:Antonio Dronjic

DATE:26 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 26 February 2018 at 11:21am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Whether ground for cancellation exists – Sponsor subject to a sponsorship bar – Whether the visa should be cancelled – Sponsorship cancelled for reasons beyond applicant’s control – Failure to secure alternative sponsorship after significant time – Hardship caused outweighed by grounds for cancellation – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(g), 140M(1)(l)(iv), 375A
Migration Regulations 1994 (Cth), rr 2.12, 2.43

CASES
Re Drake (No 2) (1978-1980) 2 ALD 634
Visnumolakakala 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 30 November 2016 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).

2. The delegate cancelled the visa under s.116(g) on the basis that the applicant’s sponsor (Jillian’s Café Bar Pty Ltd ATF T & M Atwell Family Trust – Jillian’s Café Bar) was cancelled and barred for 3 years under s.140M of the Act. 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. According to the primary decision record provided to the Tribunal by the review applicant, the visa applicant was granted a subclass 457 Business (Long Stay) visa on 2 April 2015 that was, but for the cancellation, to remain valid until 2 April 2019. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was Jillian’s Café Bar Pty Ltd. The occupation listed for the visa applicant in the most recently approved nomination was Cook.

4. As a result of sponsorship monitoring conducted by the Department, the business sponsor was barred for 3 years and sponsorship cancelled under s.140M on 21 July 2016.

5. A notice of intention to consider cancellation (‘NOICC’) was e-mailed by the Department to the applicant on 24 October 2016. On 31 October 2016, the applicant provided the response to NOICC stating that the she complied with the terms and conditions imposed on her visa; performed her job in accordance with the position description and that she had nothing wrong.

6. It was submitted that the applicant found a new sponsor (Sapkota Brothers Pty Ltd) who lodged an associated business nomination application on 9 November 2016, nominating the applicant for the position of a Cook. On 30 November 2016, the delegate cancelled the applicant’s visa under s.116(g).

7. The applicant applied to the tribunal on 7 December 2016 for review of the visa cancellation and with her application submitted a copy of the primary decision record.

8. On 13 December 2017, 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 22 February 2018.

9. On 21 February 2018, the applicant provided her statement explaining that she has been innocent victim at the hands of her sponsor, the she is a skilled worked and able to contribute to Australian community. She pleaded for another chance so that hard work done over past few years does not go to waste. She stated that in 10 years, she never breached any conditions imposed on her visas and was never treat to community.

10. The applicant appeared before the Tribunal on 22 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

11. The tribunal began the hearing by explaining the role of the tribunal and the purpose of the hearing. The tribunal explained that the review applicant’s visa was cancelled under s.116 (g) of the Act. 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)(l)(IV) is relevant as the applicant’s sponsor has been cancelled or barred under section 140M of the Act.

12. The tribunal further explained to the applicant that, if satisfied that the ground or grounds  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, which may include matters of government policy, as set out in the departmental guidelines. The applicant confirmed that she understood the explanation.

13. I informed the applicant that the department’s file contains a non-disclosure s.375A Certificate purporting to protect the information related to cancellation of sponsorship of her former employer, Jillian’s Café Bar Pty Ltd. I advised the applicant that I do not consider the certificate to be valid as it does not contain sufficient detail to properly identify a basis of public interest immunity.

14. I further noted that the protected information includes a copy of the decision record related to sponsorship cancellation. This information was released by the department to the applicant buy its letter of 21 July 2016. The same information was contained in the notice of intention to consider cancellation (‘NOICC’) that was e-mailed by the Department to the applicant on 24 October 2016. The applicant has provided her response to NOICC on 31 October 2016. In addition, the primary decision record submitted by the applicant with her review application contains the information that Jillian’s Café Bar Pty Ltd sponsorship was cancelled on 21 July 2016.

15. The applicant is 36 years of age female national of India where she completed the equivalent of year 12 education and worked as a cook at a hotel for the period of two years. She married in May 2014 and has a child born in January 2017. This is her second marriage. Her current husband was a football player in India and also worked at a farm. Her two brothers and parents live in Punjab, India. Her nephew lives in Australia (Sydney) and is an Australian citizen. She stated that neither her nor her husband own property in India.

16. She first arrived in Australia in July 2006 as a holder of a Student visa. By September 2008, she has completed an Advanced Diploma in Hospitality Management. From May 2010 to November 2011, she was a holder of a subclass 485 visa.

17. She commenced her employment at Jillian’s Café Bar in April 2015 after being granted subclass 457 visa. She ceased her employment at Jillian’s Café Bar on 17 July 2016.

18. I noted that in her response to NOICC, she stated that she managed to find new employment at Sapkota Brothers Pty Ltd and that this restaurant (trading as Camberwell Curry House) lodged nomination application in November 2016. The applicant stated that the nomination application lodged by Sapkota Brothers Pty Ltd was approved by the department in January 2017. However, she never commenced employment at this business and this job is no longer available.

19. She explained that she was pregnant at the time, that she gave birth to her child in January 2017 and that she was not permitted to work by condition imposed on her bridging visa “E”. She stated that she did not want to breach any of the conditions imposed on her bridging visa and that was the main reason for not commencing employment at Camberwell Curry House.

20. I inquired if she ever made application to the department to have ‘no work’ condition removed from her BVE. The applicant stated that she did apply in May or April 2017 for removal of ‘no work’ condition but was not successful.

21. She stated that neither her nor her husband have been working since July 2016. She explained that her husband was holding a student visa as a dependent family member of his first wife and that he had his student visa cancelled. She did not know when her husband’s visa was cancelled by the department. She gave evidence that she and her family had approximately $20,000 in savings and that they received approximately $35,000 after the birth of their first child. She further stated that she and her family are financially supported by her cousin from Sydney and their friends.

22. I indicated to the applicant that, based on the evidence before me, I am satisfied that the ground for cancellation is made it out and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy, as set out in the departmental guidelines.

23. I invited the applicant to state if there any other relevant matters she wants me to consider, apart from those stated in letter sent on 21 February 2018.

24. She stated that she was not to blame for cancellation of Jillian’s Café Bar sponsorship; that she did nothing wrong to have the visa cancelled; that she has been living in Australia for 12 years; that she has no property in India, that she entered into ‘inter cast marriage’ with her second husband and will have problems if she is required to go back to India; that there is a ‘drug epidemic’ in Punjab and will be difficult to raise her child there; that she did not commit any crime and paid her tax in Australia and that she wants to have more opportunities to find a job in Australia and provide for her family.

25. 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

26. 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(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?

27. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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)(l)(IV) is relevant.

28. Information in the delegate's decision record, which was submitted by the review applicant to the tribunal, indicates that the review applicant's sponsoring employer in the most recently approved nomination for the visa, Jillian’s Café Bar Pty Ltd, had its approval as a Standard Business sponsor cancelled on 21 July 2016 under section 140 M (1)(a).

29. Based on the evidence before it, including the oral evidence from the applicant, the tribunal finds that Jillian’s Café Bar Pty Ltd had its sponsorship cancelled on 21 July 2016.

30. Accordingly, a ground prescribed in r.2.43(1)(l)(iv) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(g) 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

31. 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’.

32. As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J in Re Drake (No 2) (1978-1980) 2 ALD 634. Indeed, in Visnumolakakala v Minister for Immigration [2006] FMCA 1209 Smith FM 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 therefore are incapable of being elevated into legally necessary or relevant considerations.

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. The Tribunal considered matters raised by the review applicant in his written submissions and oral evidence given during the Tribunal hearing.

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

34. The purpose of the applicant's stay in Australia had been to work for the sponsor as a cook and to reside temporarily for that purpose. The sponsorship was cancelled on 21 July 2016. According to the applicant evidence, she was nominated by a different business to work in her nominated occupation. This nomination was approved by the department in January 2017 and by operation of law cased in January 2018. The applicant gave evidence that she never commenced employment at Camberwell Curry House and that this job is no longer available. The applicant last worked in her nominated occupation in July 2016.

35. I observe that the department did not proceed to cancel the applicant’s via until 30 November 2016 despite cancelling the sponsorship status of the applicant’s employer in July 2016.  Based on the evidence before me I am satisfied that the applicant was allowed sufficient time to secure employment with alternate Australian sponsor.

36. I acknowledge that the applicant gave birth in January 2017 and was for this reason prevented from seeking alternate employment. I also accept the applicant’s claim that she did not commence employment at Camberwell Curry House because she was prevented from working by ‘no work’ condition imposed on her bridging visa “E”. However, she gave evidence that she attempted on one occasion only to have the ‘no work’ conditions removed from her bridging visa, some three or four months after the nomination lodged by Camberwell Curry House was approved by the department.

37. I have taken into consideration the fact that the applicant’s visa would, but for the cancellation, ceased on 2 April 2019.

38. The review applicant’s visa was cancelled for reasons beyond her control and the cancellation is therefore an unfortunate one. The tribunal has weighed this against the fact that the review applicant had ample time to find a new sponsoring employer.

39. The purpose of granting a subclass 457 is to enable a business 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 Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. I find that this purpose no longer exists as the applicant ceased working for her sponsor in July 2016. I give significant weight to this consideration.

    Circumstances in which ground of cancellation arose.

40. I accept the applicant’s claims that she was not to blame for cancellation of Jillian’s Café Bar sponsorship and that she did nothing wrong to have the visa cancelled. I considered the applicant’s claims that she always complied with her visa conditions and note that her visa was not cancelled for breach of visa conditions. I do not regard this claim to be a significant factor in considering exercise of its discretion.

41. Whilst I accept that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond her control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

    The degree of hardship that may be caused to the visa holder

42. The applicant claims that the visa cancellation would cause hardship to herself and her family. I accept that the applicant has been living in Australia for almost 12 years and have complied with her visa conditions. I also accept that she and her husband do not own property in India and that leaving Australia may involve some hardship to the applicant and her family. However, I am not of the view that this hardship would be significant. I do not accept that the applicant and her husband would not be able to re-establish themselves in India where majority of their family is currently living, given their qualifications, employment background and employment experience. 

43. The applicant claims that that she entered into ‘inter cast marriage’ with her second husband and will have problems if she is required to go back to India. No explanation was provided as to what type of problems she would face. There is no evidence before me to indicate that she and her husband would not be able to live in a different part of India if they expect to have problems if they return to Punjab. I give little weight to this evidence.

44. The applicant claims that that there is a ‘drug epidemic’ in Punjab and will be difficult to raise her child there. Again, no further evidence in support of this claim was provided. In any case, ‘drug epidemic’ is not unique for Punjab and is present in many other countries, including Australia. I give little weight to this evidence.

45. I accept that she has been working as a cook in Australia and has completed an Advanced Diploma in Hospitality Management. I accept that she is a skilled worked and able to contribute to Australian community.

46. 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 create no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years. This purpose has been lost and I give significant weight to this consideration.

47. I am satisfied that, if the applicant’s visa remains cancelled, she will not be affected by a ‘risk factor’ prescribed in Schedule 4013 and find that this consideration does not favours the reinstatement of the applicant’s visa.

48. I note that the applicant is not prevented from re-applying for 457 visa once she finds the new employer who is approved as a standard business sponsor and has the approved business nomination.

    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

49. 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.

1. I am 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

2. Whilst the applicant’s husband’s Student visa was also cancelled, it was not cancelled as a consequence of this cancellation.

   The visa holder’s past and present behaviour towards the department

3. I accept that the applicant has been co-operative with the Department. I also accept that she did not commit any crime and paid her tax in Australia.

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

5. 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).  

6. 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

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

8. 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

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

   Antonio Dronjic
   Member