KAUR v Minister for Immigration

[2017] FCCA 2009

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2009

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Temporary Work (Skilled) (Subclass 457) visa – notice of intention to cancel visa under condition 8107 – valid notice under s.119 of the Migration Act – Tribunal’s findings cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(b), 119, 338, 476

Migration Regulations 1994, Condition 8107 Schedule 8

Applicant: SUKHDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3670 of 2016

Judgment of: Judge Street

Hearing date: 22 August 2017

Date of Last Submission: 22 August 2017

Delivered at: Sydney

Delivered on: 22 August 2017

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the sum of $6,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3670 of 2016

SUKHDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 November 2016, affirming the decision of the delegate to cancel the first named applicant’s Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa (“Temporary Work Visa”).

2. The applicant is a citizen of India who arrived in Australia in 2008 on a student visa. On 25 March 2013, the applicant was granted a Temporary Work Visa based on the sponsorship of Gurpreet Batra Pty Ltd. That entity went into liquidation on 4 February 2016. 

3. On 30 2 June 2016, a notice of intention to cancel was issued under the Migration Act. The notice referred to s.116(1)(b) of the Migration Act that the holder had is not complied with a condition of the visa. The condition was identified under 8107(3)(b) which refers to if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The notice made reference to the company going into liquidation on 4 February 2016 and the notice indicated that, therefore, the applicant had ceased employment with the sponsor effective on 4 February 2016.

4. The applicant provided a response to the notice on 16 June 2016 which include a reference to the applicant being nominated by another company called Noriel Australia Pty Ltd. Attached to that response and the material dated 16 June 2016, was a letter from the Department to Noriel Australia Pty Ltd dated 8 June 2016, acknowledging the nomination application being received. 

The Delegate’s decision

1. The delegate was satisfied that there was a ground for cancellation under s.116(b) of the Migration Act by reason of breach of condition 8107. The delegate found that the applicant ceased employment by the sponsor effective 4 February 2016.

2. The delegate referred to the applicant’s lodgement on 28 June 2016, of an application for a Temporary Work (Skilled) Subclass 457 visa and that application is currently being processed. The delegate made reference to the circumstances surrounding the ground for cancellation as well as the applicant’s assertion that due to her skill set, she was lucky enough to be nominated by another employer, Noriel Australia Pty Ltd as a café and restaurant manager. 

3. The delegate referred to that nomination having been lodged on 8 June 2016 and noted that the application was lodged outside the 90 days that the applicant ceased employment with her previous sponsor and therefore gave little weight to that consideration in the context of whether the applicant’s visa should be cancelled. 

4. The delegate made reference to four months having passed since the applicant ceased her employment with the sponsor and that no new nomination had been approved by the Department to date. The delegate was satisfied that the grounds for cancelling the visa outweigh the grounds for not cancelling the visa and decided to cancel the visa. 

The Tribunal’s decision

1. The applicant lodged an application for review on 5 July 2016 of a Part 5 reviewable decision under s.338(3) of the Migration Act. On the face of the application, it complied with the requirements of s.338 of the Migration Act.

2. The applicant was initially invited to attend a hearing at an earlier hearing date however, the Tribunal Member was unable to conduct the hearing on that day. The applicant was sent a further letter on 12 October 2016 cancelling the proposed hearing date of 13 October 2016 and invited the applicant to attend a hearing on 17 November 2016. The applicant appeared on that date to give evidence and present arguments and was assisted by her migration representative. 

3. The Tribunal identified the background to the application for review.  The Tribunal found that it had no jurisdiction with respect to the second and third named applicants. 

4. The Tribunal made reference to the notice of intention to consider cancellation. The Tribunal identified the applicant’s response to that notice dated 16 June 2016 and the material provided in support, including the acknowledgement by the Department of the nomination application received on 8 June 2016 from Noriel Australia Pty Ltd as well as the applicant’s statement. 

5. The Tribunal referred to the company going into liquidation on 4 February 2016. The Tribunal made reference to the applicant’s evidence that she worked with the sponsor from 25 May 2013 until 31 August 2015 and was on maternity leave from 1 September 2015 until 31 March 2016.  An approved form for maternity leave was provided to the Department and identified by the Tribunal in its reasons. 

6. The Tribunal made reference to the applicant understanding that if her employer ceases to be a standard business sponsor, her employment ceases and another employer must nominate her within 90 days. The applicant stated she was not notified by the employer or the Department until 14 June 2016. The applicant stated that she was issued with a notice of cancellation, rather than being notified of the company liquidation on 4 February. The applicant asserted that if she had been notified about the sponsorship ceasing, she would have found another employer. The applicant contended that her 90 days should start from 14 June 2016 when she was advised about the sponsorship cessation. 

7. The applicant identified that she had been lucky enough to be nominated by another employer, Noriel Australia Pty Ltd due to her skills and she attached a copy of the acknowledgement nomination.   The Tribunal referred to the adverse decision of the delegate on 30 June 2016. 

8. The Tribunal made reference to further documents provided by the applicant on 7 October 2016 which included an acknowledgement by the Department of a nomination application received on 14 September 2016 from NextDot Solution Pty Ltd, as well as an organisation chart for NextDot, an employment contract with NextDot for the applicant to work as a ICT account manager and position description. The applicant also provided academic qualifications and results achieved by the applicant in Australia and India, and a statement by the applicant. 

9. The Tribunal referred to the applicant’s evidence that she called her employer on 31 March 2016 because she wanted to go back to work the following day and the employer told her the business was closed for renovations. The Tribunal made reference to the applicant still living in Sydney on 31 March 2016 and that she was supposed to go back to work on 1 April and yet she was not living in Kandos and she left it to the very last day.  The Tribunal also asked the applicant why she waited until the last day before she was due to start with her employer.

10. The Tribunal made reference to the applicant stating that she had applied for another Subclass 457 visa which was pending and that the employer is NextDot. The applicant identified that she had been nominated as an ICT account manager. The Tribunal referred to the applicant stating that she had asked Noriel Australia Pty Ltd to withdraw the nomination application. The Tribunal made reference to the fact that the applicant has not worked NextDot which has lodged a nomination application and that the application has not been decided and is under processing.

11. The Tribunal found that the applicant had not worked for 90 consecutive days whether the Tribunal takes the effective date as being 4 February, 31 March or 1 June 2016.

12. The Tribunal also identified concerns in relation to whether the applicant was telling the truth. The Tribunal identified an inconsistency in that regard.

13. The Tribunal raised with the applicant the issue at the hearing, whether the visa should be cancelled if it was found that condition 8107 was breached. 

14. The Tribunal made reference to a proposition advanced by the representative that the notice of intention to cancel should not have been sent until the 90 day period expired after 1 June 2016 which would have been 1 September 2016.

15. The Tribunal also made reference to the applicant having a pending 457 nomination. The Tribunal referred to the representative stating that there is a pending nomination application and an employer waiting for the application to be approved. The Tribunal noted that the representative stated that the employer would be adversely affected if they were waiting for the applicant’s services. 

16. The Tribunal noted that it informed the applicant that it did not know if the nomination would be approved and the applicant has never worked for the company and has not worked in that position as far as the Tribunal knows. The representative stated that he believed the applicant was qualified for the role and that is why they sent the qualifications to the Tribunal to demonstrate that she is qualified.

17. The Tribunal informed the applicant that this does not mean that the nomination will be approved. The Tribunal made reference to the representative’s submission that the burden placed on the daughter, husband and applicant is far outweighed by having to travel back to India and then travel back to Australia.

18. The Tribunal informed the applicant it would not provide extra time for the nomination to be approved, but it would take into account the evidence and the submissions. It was in those circumstances that the Tribunal accepted, based on the written approval of the maternity leave, that the applicant was on maternity leave until 31 March 2016.  The Tribunal did not accept the applicant was on maternity leave after 31 March 2016, or that she believed she was on maternity leave after that date.

19. The Tribunal was satisfied that at the latest, the applicant stopped working for the sponsor on the day that her approved maternity leave ended on 31 March 2016. The Tribunal did not accept that the applicant stopped working on 1 June 2016. The Tribunal reasoned that while the business may have stopped operating on 4 February 2016, the applicant had written approved maternity leave until 31 March 2016. The Tribunal was prepared to accept that she was employed until that date.

20. The Tribunal then made reference to the applicant having found a new employer, NextDot Solution Pty Ltd, that had lodged a nomination application for the occupation of ICT account manager in relation to the applicant.  The Tribunal observed that the nomination application had not been decided by the Department at the time of hearing.

21. The Tribunal made reference to the applicant having found another employer, Noriel Australia Pty Ltd, that lodged an application, but the applicant stated at the hearing that she asked Noriel Australia Pty Ltd to withdraw the nomination application. The Tribunal also noted that the applicant withdrew her permanent visa application and she lodged a new Subclass 457 visa application.

22. The Tribunal found that the applicant ceased employment on 31 March 2016 and the period during which the applicant ceased employment had exceeded 90 consecutive days. The Tribunal found that even if it were to accept a later period of 1 June 2016, the applicant had not been employed for a period exceeding 90 consecutive days. The Tribunal did not accept the applicant’s claim that she ceased work on 1 June 2016. 

Consideration of the ground for cancellation

1. The Tribunal was satisfied the applicant ceased employment for a period exceeding 90 consecutive days. It was in those circumstances the Tribunal found the applicant had not complied with condition 8107(3)(b) of her subclass 457 visa and found that the Tribunal was satisfied that the ground for cancellation under s.116(1)(b) of the Migration Act exists.

Consideration of discretion

1. The Tribunal then turned to the issue of discretion in respect of whether the visa should be cancelled. The Tribunal referred to the visa the applicant was granted on 25 March 2013, being a visa in respect of which the purpose was for the applicant to work as a café or restaurant manager for the particular sponsor. The Tribunal found that that particular purpose no longer exists as the applicant ceased working for that sponsor on 31 March 2016.

2. The Tribunal made reference to the applicant not having commenced work for NextDot Solution Pty Ltd, and that it did not have an approved nomination of an occupation in relation to the applicant. The Tribunal referred to NextDot Solution Pty Ltd having applied for approval of a nomination but that the application had not been decided. The Tribunal found that there is no current approved nomination of an occupation in relation to the applicant by a standard business sponsor.

3. The Tribunal made reference to the applicant’s evidence that she found two more employers to sponsor her. The Tribunal referred to Noriel Australia Pty Ltd having its application withdrawn and that the nomination by NextDot Solution Pty Ltd had not yet been decided.  The Tribunal decided not to wait for the Department’s decision on the nomination application by NextDot Solution Pty Ltd. The Tribunal in that regard referred to its reasoning in paragraph 117 of its reasons where the Tribunal referred to considering whether to wait for the nomination application to be decided before making a decision on the matter under review, and that the Tribunal decided not to wait.

4. The Tribunal, in its reasons, made reference to the applicant having nearly eight months to find a new sponsoring employer and for a nomination to be approved since she stopped work for the sponsor on 31 March 2016. The Tribunal observed that there was no approved nomination of occupation in relation to the applicant.

5. The Tribunal made reference to the Subclass 457 visa being a temporary visa and the situation being that the applicant had no approved nomination in relation to the applicant. The Tribunal observed that the Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal found that purpose no longer existed in relation to the applicant.

6. The Tribunal identified various considerations in relation to weighing up whether or not to cancel the visa and affirmed the decision under review. The Tribunal made reference to being satisfied the applicant had known at least since 31 March that she was no employed by the sponsor.  The Tribunal expressed significant concerns in relation to the applicant’s truthfulness about her claimed calls to the employer. The Tribunal referred to the representative stating that the employer NextDot Solution Pty Ltd is waiting for the applicant’s application to be approved, in respect of which the Tribunal noted the applicant had not worked for this employer before and there is no evidence that the applicant has ever worked in the occupation, although she has qualifications according to the evidence.

7. The Tribunal observed that based on all the evidence, the Tribunal considered that even if there were an approved nomination, the Tribunal would still decide the applicant had breached a condition of her visa and that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. Accordingly the Tribunal concluded that the visa should be cancelled.

Before this Court

1. The grounds of the application are as follows:-

   2. The Tribunal erred by not finding that the decision of the delegate was unlawfully made and of no effect.

   Particulars

   At the time of the purported cancellation of the Applicant's subclass 457 visa, the holder of such a visa would breach condition 8107 at the end of 90 days after ceasing employment with the sponsor (cl 8107(3)(b)). If the Tribunal had correctly calculated the date on which the Applicant ceased employment as 1 June 2016, the delegate could not have cancelled the visa on 30 June as there had been no breach of the condition at that date.

   Even if the Tribunal's finding that the Applicant had ceased employment on 31 March 2016 were correct, she would not have been in breach of condition 8107 until the end of the day on 29 June 2016. The delegate purported to cancel the visa on 30 June. However, before the power to cancel could arise the Applicant had to be served with a notice under s119 of the Migration Act 1959 (“the Act”), which could not have been done until the breach had occurred. No such valid notice was issued after 29 June 2016

   3. The Tribunal acted unreasonably in the exercise of its discretion under s363(1)(b) of the Act.

   Particulars

   The Applicant requested that the Tribunal wait until a decision had been made on an existing application to nominate her for a new position, which was a consideration that was relevant to the Tribunal's exercise of discretion whether to affirm the cancellation of her visa. The Tribunal's refusal to do so was unreasonable and lacked an evident and intelligible justification

Consideration

1. Mr Jones the solicitor for the applicant, confirmed that ground 1 was not pressed and was abandoned. 

Ground 2

1. In relation to ground 2, the applicant’s solicitor sought to argue that as the Tribunal found the applicant ceased employment on 31 March 2016, the notice of intention to cancel should have been found to be invalid, that the delegate’s decision was accordingly not lawfully made, and that the Tribunal erred in failing to find that the delegate’s decision was of no effect. 

2. The applicant’s solicitor submitted the Tribunal’s finding that the applicant ceased work on 31 March 2016 was a finding by reason of which the Tribunal could find that there was a defect in the s.119 notice. The findings of the Tribunal do not affect the validity of the notice. On the face of the notice, it was a valid notice under s.119 of the Migration Act.

3. On the face of the material before the Court, there is no basis to find that the delegate’s decision was not lawfully made. On the face of the material before the Court, a valid application for review of a Part 5 reviewable decision was lodged and the Tribunal was required, under the Migration Act, to review that decision.

4. Whilst the Tribunal may have been prepared to accept the applicant ceased work on 31 March 2016, notwithstanding that the company went into liquidation on 4 February 2016, that does not give rise to any basis upon which it could be said that the delegate’s decision was unlawful or that the notice was invalid. As a matter of law, the applicant’s employment terminated when the company went into liquidation however, this does not make out any relevant legal error by the Tribunal or any invalidity of the delegate’s decision.

1. The fact that the applicant sought to argue that she remained employed for a longer period was part of her response to the notice does not identify any error of the kind alleged in ground 2. Ground 2 fails to make out any jurisdictional error. 

Ground 3

1. In relation to ground 3, Mr Jones submitted that the decision of the Tribunal not to adjourn the determination of the application until the nomination by NextDot Pty Ltd had been determined was unreasonable. Mr Jones contended that the reason was in substance merely that the application had not been approved. That submission does not reflect the full reasoning of the Tribunal in relation to the consideration of whether or not the matter should be adjourned.

2. It is clear the Tribunal turned its mind to the issue of adjournment and deliberated upon the same, taking into account the matters referred to above and the position for which the applicant was applying, as well as the weighing of the various factors and the circumstances as to whether cancellation should occur.

3. It was in that regard the Tribunal observed that it would still decide to cancel the application even if there had been an approval. That was a finding which cannot be said to lack an evident and intelligible justification. That was a finding that was open to the Tribunal and was reasonable on the material before the Tribunal. No jurisdictional error as alleged in ground 3 is made out. 

Background

1. The application is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  5 September 2017