Kaur (Migration)

[2021] AATA 3917

Kaur (Migration) [2021] AATA 3917 (27 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kirandeep Kaur

CASE NUMBER:  2108400

HOME AFFAIRS REFERENCE(S):          BCC2019/6396276

MEMBER:James Silva

DATE:27 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 27 September 2021 at 10:02am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – engaging in work in Australia – studies substantially completed – offer of employment in Australia – impact of the COVID-19 pandemic – financial hardship – family illness – decision under review set aside   

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8 Conditions 8101, 8104

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 June 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in September 1990. On 1 December 2019, she was granted a Bridging A visa, in association with a student visa application that she lodged on the same day. On 15 June 2021, a delegate of the Minister issued a Notice of Intention to Consider Cancellation (NOICC), as there appeared to be grounds to cancel the visa under s.116 of the Act. The applicant provided her response to the NOICC. On 25 June 2021, the delegate cancelled the visa. The applicant seeks review of the delegate’s decision.

3. The delegate cancelled the visa under s.116(1)(b), namely that the visa holder had not complied with a condition of the visa. The applicant had breached condition 8101 of her Bridging A visa, which states: ‘The holder must not engage in work in Australia’ (No Work).

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 10 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent, Mr Harjeet Singh of Visa Explore Migration and Education Services.

7. 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

   Relevant law

8. 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), which states that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa.

9. 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?

10. 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 8101 attached to the applicant’s Bridging A visa. This condition states: ‘The holder must not engage in work in Australia’ (No Work).

11. The applicant breached this condition by working at Ultimate Wash and Café. The delegate’s decision record (a copy of which the applicant submitted to the Tribunal) noted the evidence for this, which included a copy of the payroll records relating to the applicant. The applicant acknowledged the breach, in her response to the NOICC and at the Tribunal hearing.

12. 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 visa should be cancelled.

    Consideration of discretion

13. 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’.

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

14. In her response to the NOICC, the applicant explained that she came to Australia on 2 October 2019 as a tourist. She made friends here and decided, after consulting with her parents, to study in Australia. She lodged a student visa application on 1 December 2019. The application is still pending.

15. The applicant provided information about her activities in Australia and current situation, relevant to an assessing of whether she has a compelling need to remain in Australia. She include a number of certificates, with records of results, showing that she has fulfilled the requirements for the following:

    §  Certificate III in Commercial Cookery, completed on 21 January 2021; including an industry work placement at an Indian restaurant (October to December 2020); and

    §  Certificate IV in Commercial Cookery, completed on 1 September 2021; including an industry work placement at an Indian restaurant (July to August 2021).

16. She provided a Certificate of Enrolment (CoE) for a Diploma of Hospitality Management course from August to December 2021.

17. A letter from the director of Beyond India, dated 1 September 2021, stated that the applicant completed a ‘voluntary 160-hour work placement’ from 12 July 2021 to 13 August 2021, which the applicant confirmed at hearing was unpaid work. That letter states that, ‘once trained, we would like to offer [the applicant] full time hours at Beyond India Restaurant’. A payslip for the period 16 to 29 August 2021 indicates that she is now working there, for 35 hours during that two-week period.

18. At hearing, the applicant said that she is married. Her husband owns land and runs a farm, as part of a family business. However, she relies on financial support from her father, who has a dairy business. She explained that, while the business stopped last year after her father contracted COVID-19, it is now operating again.

19. The applicant told the Tribunal that, at the end of her current course (December 2021), she plans to return to India and set up a restaurant in her hometown of Rajpura. She explained that she must stay in Australia until at least December 2021, or early 2022.

20. The Tribunal accepts that the applicant has been meeting her study requirements, and is committed to working in the hospitality sector. It also accepts that she has a compelling need to remain in Australia until at least December 2021, to avoid disruption to her ongoing studies. However, the weight that the Tribunal attaches to these factors is undermined somewhat by its concerns about the applicant’s evidence about her intentions beyond 2021. Her description of her family’s farming background in India, her reliance on her father (rather than her husband) for financial support, and her offer of full-time employment in South Australia, all leave the Tribunal in doubt that she genuinely intends to return to Rajpura in early 2022 and open a restaurant there.

21. In all, the Tribunal gives moderate weight to this factor against cancelling the visa.

    The extent of compliance with visa conditions

22. The Tribunal considers the applicant’s work for a 12-month period to be a serious breach of condition 8101. It places considerable weight on this factor in favour of cancelling the visa.

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

23. In her response to the NOICC, dated 21 June 2021, the applicant described the hardship from the visa cancellation as being that, if she is unable to complete her studies or gain a qualification, she will be unable to find work in India, and will become a burden on her family in India. The representative’s written submission, and the applicant’s evidence at hearing, focussed more on the psychological impact of her of having had a visa cancelled, and that it will ‘restrict her options to visit back to Australia if required’.

24. The Tribunal places a little weight on this factor against cancelling the visa.

    The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

25. The applicant claims that unforeseen circumstances in India beyond her control, namely the COVID-19 pandemic and its impact on her family, precipitated the breach of her visa condition. She explained[1] that her father intended to support her financially at hearing, but had to withdraw money from a bank account for emergency treatment for an aunt who fell ill with COVID-19; and that he then also contracted COVID-19. She provided a copy of a hospital discharge certificate relating to her father.

    [1] In her response to the NOICC, her representative’s written submission, and in oral submissions at hearing.

26. The submission to the Tribunal states that the applicant did not have any support either financial, psychological, social [or] emotional’ during this period; and that she felt ‘highly stressed, anxious and feeling helpless’. The applicant claims to have sought advice from a migration agent, who led her to believe that she could work for cash, and recommended she do this rather than seek a variation of her visa conditions. The applicant did not substantiate this claim, explaining that the discussions were by telephone.

27. In the Tribunal’s view, these circumstances mitigate the seriousness of the applicant’s breach of the visa conditions. It notes that the Department delegate who granted the applicant a Bridging E visa with limited work rights on 8 July 2021 appears to have formed a similar view.

28. The Tribunal places some weight on this factor against cancelling the visa.

    Past and present behaviour of the visa holder towards the department

29. There is no adverse material about the applicant’s behaviour towards the Department. The Tribunal notes that the applicant participated in a Department interview on 8 July 2021; that she confirmed her understanding of the visa conditions that applied to the Bridging E visa and to her obligations toward the Department; and that the available evidence indicates that she has continued her studies and worked less than the maximum 40 hours a week, in compliance with condition 8104.

30. The Tribunal places a little weight on this factor against cancelling the visa.

    Whether there would be consequential cancellations under s.140

31. There are no consequential cancellations under s.140.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

32. The applicant currently holds a Bridging E visa with condition 8104 (Limited work rights), granted in association with her ongoing application for a student visa. If her Bridging A visa is cancelled, she would continue to hold the Bridging E visa, and not become unlawful, or liable to detention and removal. This situation would persist at least while the applicant’s student visa application continues to be processed, and until it is finally determined.

33. If the visa is cancelled, the applicant may be subject to an exclusion period. For instance, she would be affected by a risk factor identified in Public Interest Criterion (PIC) 4013(2)(a), as a person whose visa was cancelled under s.116, having been found to have worked without authority. This would likely affect her ongoing student visa application (including its grant if she were able to meet all the other criteria). However, as discussed at hearing, the applicant’s claim that she intends to return to India after the completion of the course (if taken at face value) suggests that the hardship that arises from this would be limited.

34. A mandatory legal consequence of the cancellation is that an exclusion period will also apply for some visa applications in the future. At hearing, the applicant spoke of her wish to visit Australia at some time in the future, as a tourist, and the adverse consequences that would flow from both the exclusion period, and a blot on her migration history.

35. The Tribunal gives this factor some weight against cancelling the visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

36. Cancelling the visa would not result in the applicant’s removal from Australia, as she currently holds a Bridging E visa. Also, the applicant stated at hearing that there are no reasons preventing her return to India, and there is nothing in the material before the Tribunal to suggest that Australia may have non-refoulement obligations. The applicant said that she has no children. It therefore does not appear that the best interests of any children would be affected by the cancellation.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

37. The bridging visa is not a permanent visa.

    Any other relevant matters

38. There no other relevant matters.

    Summary

39. The Tribunal has considered the totality of the applicant’s circumstances.

40. The Tribunal finds that there are grounds for cancelling the visa because the applicant worked in breach of condition 8101 of her Bridging A visa. The breach was serious and prolonged, and is a strong factor in favour of cancelling the visa. Nonetheless, the Tribunal has decided that the factors against cancelling the visa slightly outweigh those for cancellation. It takes into particular account the circumstances in which the ground for cancellation arose, including the COVID-19 pandemic’s effect on the applicant’s family; her continued studies and work in a related field; her subsequent cooperation with the Department (which also resulted in the grant of a Bridging E visa with limited work rights); and the impact of a cancellation on her migration records and future travel options.

    Conclusion

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

    DECISION

42. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    James Silva
    Member