Kunwar (Migration)

[2021] AATA 3277

Kunwar (Migration) [2021] AATA 3277 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Rupa Kunwar
Mr Ram Lal Gurung

CASE NUMBER:  2106579

HOME AFFAIRS REFERENCE(S):          BCC2020/2530531

MEMBER:Antonio Dronjic

DATE:20 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 482 – Temporary Skill Shortage visa.

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

Statement made on 20 August 2021 at 3:16pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – failure to commence employment within 90 days – death of father and mental health – no contact to sponsoring business or employment at any time – discretion to cancel visa – visa ceased in any case – possibility of applying for new visa – automatic cancellation of second applicant’s visa – decision under review affirmed for first applicant, no jurisdiction for second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (3), 140(1), 348
Migration Regulations 1994 (Cth), r 2.12, Schedule 4, criterion 4013, Schedule 8, condition 8607(4)

CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1459
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Rani v MIMA (1997) 80 FCR 379
Re Drake (No. 2) (1979) 2 ALD 634
Sakhno v MIAC [2007] FMCA 1492
Tien v MIMA (1998) 89 FCR 80
Vishnumolakala 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 13 May 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 – Temporary Skill Shortage 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 breached condition 8607(4) as she failed to commence employment at the sponsoring business within 90 days after she arrived in Australia. 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 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.

   Background to the cancellation of the applicant’s visa

4. The decision record of 13 May 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 16 July 2019, the applicant was granted a Subclass 482 visa, to remain valid until 16 July 2021.

   ·The standard business sponsor who most recently nominated the applicant to work as a software engineer was Adaptify Pty Ltd (the sponsor).

   ·The applicant arrived in Australia as a holder of a Subclass 482 visa on 22 September 2019.

   ·On 26 August 2020, the sponsor informed the Department that the applicant did not commence her employment at the sponsoring business.

   ·A notice of intention to consider cancellation (NOICC) was issued on 17 March 2021.

   ·On 23 March 2021, the applicant responded to the NOICC.

   ·On 13 May 2021, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 17 May 2021 for review of the visa cancellation and with her application submitted a copy of the primary decision record. On 2 July 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 hearing scheduled for 19 August 2021.

6. The applicant appeared before the Tribunal on 19 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, 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 video conferencing.

8. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that her visa was cancelled under s 116(1)(b) of the Act as the delegate concluded that she had not complied with a condition of her visa. Specifically, condition 8607, to which her visa was subject, prescribes in 8607(4) that, if the holder was outside Australia when the visa was granted, the holder must commence work within 90 days from the holder’s arrival in Australia. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicant.

9. The Tribunal further explained to the applicant that, if satisfied that the ground 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.

10. Finally, the Tribunal explained that, because her Subclass 482 visa would have, but for the cancellation, ceased in any case on 16 July 2021, the Tribunal cannot reinstate her visa even if the cancellation was to be set aside.

11. The applicant is a national of Nepal. She is married and her husband is currently residing with her in Australia. Both of her parents died. The applicant has two brothers and one sister who are living in Nepal. She does not own property in Nepal under her name. She has completed a bachelor’s degree in IT in India and worked there for more than 10 years as an IT professional. She explained that, being a national of Nepal, she does not need a visa to live and work in India.

12. The applicant’s husband, Mr Ram Lal Gurung, has three sisters, two brothers and parents living in Nepal. He has a small house and some land held under his parents’ name. He worked in Malaysia and Qatar. Neither the applicant nor her husband has relatives in Australia.

13. The applicant confirmed in her evidence that she was granted a Subclass 482 visa on 16 July 2019, based on the sponsorship and nomination made by Adaptify Pty Ltd. The applicant gave evidence that she received a visa grant letter from the Department and that she read and understood the conditions imposed on her visa. The applicant stated that she was aware that she needed to commence her employment at the sponsoring business within 90 days from her arrival in Australia.

14. The applicant gave evidence that she did not commence her employment at Adaptify Pty Ltd because her mental state was not good after arriving in Australia. She gave evidence that her father died in June 2019. She further stated that after arriving in Australia, she felt very lonely and suffered from panic attacks and mental health problems.

15. The Tribunal enquired if she contacted her employer to inform of her medical problems and inform them that she is unable to commence her employment. She stated that she did not contact her prospective employer at all. When the Tribunal enquired as to why she failed to inform her employer that she was unable to commence employment, the applicant stated that her mental condition was not stable.

16. The applicant gave evidence that she has not been working in Australia at all as she does not have a visa that would enable her to do so. The Tribunal noted that she currently holds a bridging visa ‘E’ that does not have work restrictions. The applicant changed her evidence and stated that she is aware that she is entitled to work in Australia. She further stated that her husband works at a timber factory and is earning between $800 and $1,000 per week. The applicant and her husband opened a Commonwealth Bank account in Australia. Currently they have savings of approximately $6,000.

17. The applicant stated in her evidence that, as of the day of the Tribunal’s hearing, she is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated her for a position within the business.

18. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that she breached condition 8607 that was imposed on her Subclass 482 visa, and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

19. The Tribunal indicated that it would take into consideration the evidence given at the hearing. It asked the applicant if there was anything else that she wanted to raise with the Tribunal as to whether the discretion to cancel her visa should be exercised.

20. She stated that her future will ‘be at stake if her visa remains cancelled’ and reiterated that she was unable to commence employment at the sponsoring business because of her mental state. When asked by the Tribunal if there is any reason she and her husband would not be able to return to Nepal or India, the applicant stated that they can go back but that life in Australia is better than in Nepal or India.

21. 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

22. 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?

23. 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 8607 is attached to the applicant’s visa. The condition in 8607(4) requires that, if the holder was outside Australia when the visa was granted, the holder must commence work within 90 days from the holder’s arrival in Australia.

24. As noted above, condition 8607 was attached to the applicant’s visa, which was granted on 16 July 2019 while the applicant was offshore. This visa was, but for the cancellation, valid until 16 July 2021.

25. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant arrived in Australia on 22 September 2019 and did not commence employment at the sponsoring business as of the day of the Tribunal hearing. Accordingly, the Tribunal finds that the applicant did not comply with condition 8607(4).

26. 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

27. 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’.

28. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] 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.[2]

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

    [2]     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].

29. 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

30. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a software engineer on a temporary basis. The applicant never commenced employment at the sponsoring business. She remained in Australia for almost two years since arriving in September 2019. Despite not being prevented to do so, she did not work in Australia.

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

32. The Tribunal further finds that the applicant’s Subclass 482 visa would, but for the cancellation, have ceased on 16 July 2021 in any case. It follows that it is no longer possible to reinstate her Subclass 482 visa.

33. As explained at the hearing, 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 482 visa is 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 never commenced employment at the sponsoring business. The Tribunal gives significant weight to this consideration.

    The extent of compliance with visa conditions

34. The ground for cancellation arose when the applicant failed to commence employment at the sponsoring business within 90 days from her arrival in Australia. Based on the evidence before it, the Tribunal finds that the applicant did not commence employment at the sponsoring business as of the day of its decision – almost two years after arriving in Australia.

35. The applicant had an opportunity to rectify the breach by commencing employment with the sponsor. The Department did not proceed with the visa cancellation until 13 May 2021. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to commence employment in Australia with her sponsor.

36. The Tribunal finds that the applicant’s failure to commence employment with the sponsoring business that successfully nominated her to work as a software engineer in the more than 22 months since arrival in Australia represents a significant breach of condition 8607.

    Degree of hardship that may be caused to the applicant

37. In her evidence, the applicant stated that she was unable to commence employment at the sponsoring business because of her mental state. She stated that her future is at stake if her visa remains cancelled. She did not elaborate on this statement. She gave evidence that both she and her husband can return to either Nepal or India, but they would prefer to stay here as life in Australia is better.

38. The Tribunal has taken into consideration the applicant’s evidence that her siblings live in Nepal, that her husband owns a small house and land in Nepal (under his parents’ name) and that neither she nor her husband have relatives in Australia. The Tribunal is satisfied that the applicant would be able to re-establish herself in either Nepal or India given her education and work experience obtained in India.

39. Balanced against any potential hardship to the applicant that may result from the visa cancellation is the fact that the applicant came to Australia on a temporary visa, which created no expectation of remaining in Australia permanently.

    Circumstances in which ground of cancellation arose

40. The applicant stated that she failed to commence employment within 90 days from arrival in Australia because she was emotionally and mentally impacted by her father dying in June 2019. She claims that upon her arrival in Australia, she felt lonely and that memories of her father caused anxiety and panic attacks. The applicant also stated that in 2019, her husband was admitted to hospital due to a road accident that happened in Nepal.

41. The Tribunal accepts that the applicant’s father died in June 2019 which caused emotional and mental problems for the applicant. The Tribunal notes that the applicant provided a medical certificate from Mount Waverley Medical Centre dated 19 March 2021, stating that she is unable to work from 19 March 2021 to 19 May 2021 inclusive.

42. The Tribunal further accepts that the applicant’s husband was admitted to hospital due to a road accident. The Tribunal notes that both the passing of the applicant’s father and the road accident involving her husband happened before the applicant arrived in Australia on 22 September 2019.

43. While the Tribunal accepts that the circumstances in which the ground for cancellation arose were partially beyond her control, the Tribunal finds that the applicant did not inform her employer that she is unable to commence employment due to a medical condition she was suffering from. The applicant stated in her evidence that she did not make any attempt to commence employment in Australia despite not being prevented to do so by the conditions imposed on her bridging visa ‘E’.

    The impact on any victims of family violence

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

    Past and present conduct of the visa holder towards the Department

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

    Whether there would be consequential cancellations under s 140

46. Whilst the applicant’s husband’s visa was also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in the separation of the applicant from her husband.

    Whether there are mandatory legal consequences to a cancellation decision, whether indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia’s non‑refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s 46A, s 46B, s 48, s 48A, s 91E, s 91K and s 91P of the Act); and whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s 189, and liable for removal under s 198

1. The applicant is currently on a bridging visa because 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.

2. 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 prescribes the classes of visa, which do not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

3. The Tribunal is satisfied that the applicant will not be prevented by Public Interest Criterion (PIC) 4013 from applying for a temporary work visa once she finds a new employer who is approved as a standard business sponsor and has an approved business nomination in relation to the applicant.

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

4. 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).

5. There is no 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.

6. 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

7. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 482 – Temporary Skill Shortage visa.

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

   Antonio Dronjic
   Member