Kaur (Migration)

[2021] AATA 5214

Kaur (Migration) [2021] AATA 5214 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kulwinder Kaur
Mr Ragbir Singh
Mr Varinder Singh Virk
Mr Gurnoor Singh

CASE NUMBER:  2105629

HOME AFFAIRS REFERENCE(S):          BCC2019/2564923

MEMBER:Antonio Dronjic

DATE:19 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 19 October 2021 at 3:41pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – hearing postponement request – medical certificate – capacity to participate in a video hearing – ground for cancellation – ceased employment with sponsor – consideration of discretion – purpose of visa no longer exist – significant breach of condition – best interest of the children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 362B, 363

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
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 9 April 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) 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 first named applicant (the applicant) breached condition 8107(3)(b) of Schedule 8 to the Migration Regulations 1994 (the Regulations), as the period during which the applicant ceased employment exceeded 60 consecutive 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 first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

   Background to the cancellation of the applicant’s visa

4. The decision record of 9 April 2021 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 10 August 2018, the applicant was granted a Subclass 457 Business (Long Stay) visa, to remain valid for the period of four years.

   ·The standard business sponsor who most recently nominated the applicant to work as a Software Engineer was Job Capital Pty Ltd (the sponsor).

   ·On 30 April 2019, the applicant ceased her employment with the sponsoring business.

   ·A notice of intention to consider cancellation (NOICC) was issued on 10 March 2021.

   ·The applicant did not respond to the NOICC.

   ·On 9 April 2021, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 30 April 2021 for review of the visa cancellation and with her application submitted a copy of the primary decision record.

6. On 20 September 2021, 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 video hearing scheduled for 19 October 2021.

7. On 12 and 18 October 2021, two SMS reminders were sent to the applicant about the hearing.

8. On 18 October 2021, the applicant wrote to the Tribunal seeking the postponement of a scheduled hearing. With her request she enclosed a medical certificate dated 18 October 2021 stating that ‘Ms Kaur has a medical condition and will be unfit for work from 18 October 2021 to 19 October 2021 inclusive’.

9. The hearing postponement request contained the wrong file number and for that reason it was brought to Member’s attention on the morning of the hearing on 19 October 2021 at 9 am. Considering the limited information contained in the medical certificate, the presiding Member was not satisfied that the applicant demonstrated that she was unfit to attend a video hearing.

10. In particular, the medical certificate was issued only in relation to the applicant’s incapacity to work and provided no opinion regarding the applicant’s capacity to participate in a video hearing. The medical certificate did not specify the nature of the applicant’s medical condition, future prognosis, or the reasons why the applicant is unable to appear before the Tribunal via video link from the comfort of her own residence.

11. Shortly after the Tribunal officer contacted the applicant’s representative and informed him that the request for the hearing postponement was refused and that the hearing will proceed as scheduled. This telephone conversation was followed by e-mail sent to the applicant’s representative confirming the member’s decision to proceed with the hearing.

12. At the time of the scheduled hearing, the hearing officer attempted to contact the applicant on two occasions using the number provided with the review application, but she refused to answer the calls.  

13. The applicant did not appear before the Tribunal on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing.

14. Section 362B of the Act provides that if an applicant has been invited under s.360 to attend a hearing and does not appear on the day on which or at the time and place at which she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

15. The Tribunal has considered whether it should adjourn the review under subsection 363(1)(b) of the Act in order to re-schedule the applicant’s appearance before it. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

16. In this case the Tribunal notes that the applicant has been aware since 9 April 2021 of the grounds upon which her visa was cancelled. According to the primary decision record submitted with the review application, the applicant ceased her employment at the sponsoring business on 30 April 2019. She did not respond to the Department’s NOICC that was issued on 10 March 2021. The Department did not proceed with the cancellation until 9 April 2021.

17. With its acknowledgment letter of 7 May 2021, the Tribunal invited the applicant to provide material or written arguments for the Tribunal to consider. Neither the applicant nor her representative provided documentary evidence or submissions to the Tribunal.

18. In the circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review. The applicant has failed to attend the scheduled hearing and has not provided any documents or information in support of her review application. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review.

19. Having considered the overall circumstances of this matter, as outlined above, the Tribunal determined that it was appropriate to proceed to a decision without taking any further action to allow or enable the applicant to appear before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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?

21. A visa may be cancelled under s.116(1)(b) 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 is attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 60 consecutive days.

22. Based on the evidence before it, the Tribunal finds that the applicant ceased employment at the sponsoring business on 30 April 2019. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

23. For these reasons, the Tribunal is 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

24. 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’.

25. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[3] 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.[4]

    [3]     See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634

    [4]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala 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 Affairs [2006] 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]

26. 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

27. 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 Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Job Capital Pty Ltd as Software Engineer on a temporary basis.

28. According to the primary decision record submitted with the review application, the applicant ceased employment at Job Capital Pty Ltd on 30 April 2019. She decided to remain in Australia. No evidence was presented to the Tribunal as to whether she attempted to secure employment with alternate business that was willing and able to nominate her for the position within their business. By declining the Tribunal’s invitation to attend the hearing, the applicant denied herself of an opportunity to present her case.

29. Based on the evidence before it, the Tribunal is not satisfied that, as of the day of the Tribunal’s hearing, the applicant is employed by an Australian company which is an approved standard business sponsor, and which successfully nominated the applicant for a position within the business. 

30. 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 on 30 April 2019. The Tribunal gives significant weight to this consideration.

    The reason for and extent of the breach

31. The ground for cancellation arose when the applicant ceased working with her sponsoring employer 30 April 2019. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 60 days. This was contained in a condition of her visa, which stated if the employment ceases it ‘must not exceed 60 consecutive days’.

32. The Department did not proceed with the visa cancellation until 9 April 2021. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 29 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

33. The applicant has failed to provide any explanation as to why she ceased her employment at Job Capital Pty Ltd. She did not respond to the NOICC to indicate that she intends or has been making attempts to obtain a new nomination with another approved sponsor. By declining the Tribunal’s invitation to attend the hearing, the applicant denied herself of an opportunity to present her case.

    Past and present conduct of the visa holder towards the Department

34. There is no evidence before the Tribunal that the applicant previously breached visa conditions or that she was not co-operative with the Department.

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

35. The Tribunal accepts that the applicant has been living in Australia with her husband and two children since August 2018. The applicant did not respond to the NOICC or inform the Department or the Tribunal of any hardship that she and her family might face as the result of visa cancellation.

36. Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant was granted a temporary visa which created 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.

    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

37. 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.

38. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as she breached the 8107-condition imposed on her visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act, if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is 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.

39. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

40. The Tribunal is mindful that s.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 s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 of the Regulations 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

    Whilst the applicant’s husband’s and children’s visas were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from her husband and children.

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

41. 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).

42. The Tribunal is satisfied that in the circumstances of this case cancellation would not lead to removal. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

43. The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration. However, this consideration does not preclude visa cancellation. Taking into account the rights and duties of his or her parents, the Tribunal is satisfied that it is in the best interest of the applicant’s children to remain with their family.

44. 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. Based on the evidence before it, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements.

    The impact on any victims of family violence

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

2. Having had 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

3. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

   Antonio Dronjic
   Member