Mahajan (Migration)

[2018] AATA 5456

Mahajan (Migration) [2018] AATA 5456 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shama Mahajan
Mr Vikas Mahajan
Mr Krish Mahajan

CASE NUMBER:  1714378

HOME AFFAIRS REFERENCE(S):           BCC2017/934284

MEMBER:Antonio Dronjic

DATE:19 November 2018

PLACE OF DECISION:  Melbourne

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

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

Statement made on 19 November 2018 at 11:21am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment for more than 90 days – consideration of discretion – sponsoring business closed down – commenced employment at different hair salons – not approved business sponsors – continued to work while on bridging visa with no work rights – purpose of a Subclass 457 visa – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
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 27 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) 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 (1)(b) on the basis that the applicant breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 90 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 27 June 2017 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 27 May 2016, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 27 May 2020;

   ·The standard business sponsor who nominated the applicant to work as a hairdresser was Salfa Alkubaisi T/AS Milano Hair and Beauty Boutique;

   ·On 11 October 2016 the sponsor informed the Department that the applicant ceased her employment with the sponsoring business;

   ·A notice of intention to consider cancellation (NOICC) was issued 19 June 2017;

   ·On 26 June 2017, the applicant responded in writing to NOICC;

   ·On 27 June 2017, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 5 July 2017 for review of the visa cancellation and with her application submitted:

   ·A copy of the primary decision record;

   ·A copy of her written response to the NOICC (previously submitted to the Department); and

   ·Copies of medical certificates related to her inability to work from 28 September 2016 to 5 October 2016 (previously submitted to the Department)

6. On 20 September 2018, 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 15 November 2018.

7. On 11 November 2018, the applicant’s representative provided written submissions (the tribunal folios 35-36).

8. The applicant appeared before the Tribunal on 15 November 2018 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

9. 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 the condition of her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained that the applicant’s husband’s and son’s visas were automatically cancelled by operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of her visa.

10. 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.

11. The applicant is 39 years of age and a married national of India. Her husband and son, who is seven years of age, are currently in Australia. In India, the applicant has completed a Bachelor Degree in Commercial Arts. Her five siblings live in India. The applicant stated that neither she nor her husband own land or property in India. She married Mr Vikas Mahajan in 2007. Her husband completed the equivalent of year 12 in India where he later operated a small painting business. His parents and two brothers live in India.

12. Ms Mahajan first came to Australia as a holder of a Student visa in October 2008. By 2014, she had completed several courses including Certificate III and Certificate IV in Hairdressing and an Advanced Diploma in Business.

13. On 27 May 2016, the applicant was granted a Subclass 457 visa based on the sponsorship and nomination by an Australian business Salfa Alkubaisi T/AS Milano Hair and Beauty Boutique. She gave evidence that her weekly income was $500.00, paid by deposits into her bank account. As a result of her medical condition (facial paralysis) she ceased employment at Milano Hair and Beauty Boutique on 27 September 2016. She was hospitalised and unable to work until mid-October 2016.

14. She contacted her employer in mid-October 2016 advising that she is able to continue to work and asking for more shifts. Her employer never called her back. She gave evidence that Milano Hair and Beauty Boutique closed in November 2016.

15. She stated that in February 2017, she commenced working as a hairdresser at Joseph and Rose Denardis hairdressing salon. This business lodged the nomination application with the Department in February 2017 nominating her for the position of a hairdresser. She stated that the business decided to withdraw the nomination application in February 2017 because of the changes related to Subclass 457 visa. She stated in her evidence that she continues to work three days per week for Joseph and Rose Denardis until the present day.

16. I noted that in his submissions, the representative wrote that another employer, Elio and Daniela Marinelli, who operate Moda Unisex Hair Design at shop 60, Oakleigh Central (Oakleigh salon) may be able to nominate her for the position within their business. The applicant stated that in mid-October 2018 she commenced part time employment (two days per week) at the Oakleigh Salon. In her evidence she clarified that the business offered her wages of $400 per week for full time employment but that she does not have a written employment agreement or written offer of employment made by the Oakleigh salon. She further stated that this business did not lodge nomination application with the Department nominating her for the position within the business.

17. I asked the applicant what type of visa she currently holds. She stated that, after her Subclass 457 visa was cancelled by the Department, she was granted a bridging visa E with no work rights. I observed that, despite being aware that she does not have work rights, she continued to work as a hairdresser for two different hairdressing salons. She than changed her evidence and stated that she was only getting work experience at those two hairdressing salons. I observed that she has completed relevant education for this occupation and has a number of years of relevant experience as a hairdresser. She gave evidence that in June 2018 she applied to have the ‘no work’ condition removed from her bridging visa but the Department refused her application.

18. She stated that her husband started working as an Uber driver two years ago. From 2013 until June 2017, he was employed at the Education Department as a marketing officer on a full-time basis. She claims that her husband no longer works as an Uber driver.

19. I explained to the applicant that, based on the evidence before me, I am satisfied that she breached the condition 8107 that was imposed on her subclass 457 visa as the period during which the applicant ceased employment exceeded 90 consecutive days and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

20. I indicated that I will take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application. I asked the applicant if there was anything else that she wanted to raise with the Tribunal.

21. The applicant stated that she cannot start from zero in India as she has nothing there; that she has been living in Australia for 10 years and is improving her hairdressing skills; that she would like to open her own hairdressing salon in Australia; that Australia provides better medical treatment than India and that there is better gender equality in Australia.

    Post hearing submissions

22. On 15 November 2018, the applicant’s representative wrote to the Tribunal submitting that the owners of the Oakleigh salon have an approved sponsorship; that the original sponsor Safa Alkubaisi failed to pay the applicant the agreed wages; that the applicant is not paid by her part time work at two different hairdressing salons but is merely gaining work experience; that Ms Sharma’s husband is working as an education agent and earning commissions by placing students; that there was confusion as to why the nomination lodged by Joseph and Rose Denardis was withdrawn; and that the applicant request that the Tribunal sets aside the visa cancellation so ‘she can have the new nomination applied for’.

23. On 15 November 2018, the applicant’s representative submitted:

    ·A copy of the sponsorship approval letter for Joseph & Rose N Denardis dated 8 August 2017 as evidence that this business was approved as a standard business sponsor on this day for the period of five years;

    ·A copy of the visa grant letter for an unrelated visa applicant as evidence that this person was sponsored by Elio & Daniela Marinelli in September 2013. The representative submitted that it is uncertain whether the sponsorship is still current. He requested that the Tribunal ‘grants the applicant her visa so that nomination process could be completed’. Alternatively, the representative requested that the Tribunal allows time for a new nomination to be lodged with the Department and wait for a few months until this nomination is approved.

24. 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

25. 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?

26. 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. The condition 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant's visa, which was granted on 27 May 2016 and which, but for its cancellation, was valid to 27 May 2020.

27. Based on the evidence before it, including the oral evidence from the applicant, I find that the applicant ceased employment with the sponsoring business on 27 September 2016 and that the Department received notification from the applicant’s employer that she ceased her employment on 11 October 2016. I further find that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly I find that the applicant did not comply with condition 8107(3)(b).

28. For these reasons, I am 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

29. 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’.

30. 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) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala 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]

31. 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

32. 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 Salfa Alkubaisi T/AS Milano Hair and Beauty Boutique as a hairdresser on a temporary basis. The applicant was unfortunate to lose her job in October 2016. She decided to remain in Australia and try to find a new employer. She managed to do so in February 2017. According to her evidence, she commenced employment at Joseph and Rose Denardis’s hairdressing salon. She continues to work at this business to the present day on a part time basis (three days per week) despite being prevented from working in Australia by the condition imposed on her bridging visa ‘E”. The applicant conceded that nomination application lodged with the Department by Joseph and Rose Denardis’s hairdressing salon was withdrawn by the business.

33. In October 2018, the applicant commenced working at the Oakleigh salon two days per week despite being prevented from doing so by the condition imposed on her bridging visa ‘E”. It was suggested in the submissions provided by the applicant’s representative that, if the visa was reinstated, the applicant ‘would be able to be nominated by this business’. In her evidence, the applicant clarified that at present, she is not nominated by this business and no business nomination application was lodged by this business at the Department. The applicant conceded that she does not have a written employment agreement or written offer of employment from the Oakleigh salon.

34. Based on the evidence before me, I am satisfied that, as of the day of my decision, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.

35. The applicant’s representative provided documentary evidence that Joseph & Rose N Denardis were approved as a standard business sponsor. According to her evidence, the applicant has been working at this hairdressing salon since February 2017. Despite of this, as of the time of my decision, the owners of this business did not lodge the nomination for the applicant.

36. Similarly, the Oakleigh salon, where the applicant works since October 2018 did not nominate the applicant to work at this business regardless of whether  this salon is still an approved sponsor or not. In any case, it is no longer possible for either of these two businesses to nominate the applicant for a Subclass 457 visa as this visa subclass was abolished in March 2018. 

37. 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 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 in October 2016.  I give significant weight to this consideration.

    The reason for and extent of the breach

38. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in October 2016. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of her visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor and which successfully nominated the applicant to work at the business. Instead, she continues to work for two hairdressing salons, despite knowing that she is prevented from working in Australia by the condition imposed on her bridging visa.

39. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after more than two years since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

1. The applicant ceased her employment at the sponsoring business in October 2016. The department did not proceed with the visa cancellation until 27 June 2017. I am satisfied on the evidence before me that the Department afforded the applicant sufficient time to secure the employment in Australia with an alternative business sponsor.

2. Whilst the Tribunal accepts 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.

   Past and present conduct of the visa holder towards the department

3. The applicant gave evidence that, despite being aware that she was prevented by the condition imposed on her visa, she continued to work on a part time basis for Joseph and Rose Denardis’ hairdressing salon from February 2017 until the present time. She also stated in her evidence that she is and has been working at the Oakleigh hairdressing salon from October 2018, despite being prevented from doing so by the condition imposed on her bridging visa.

4. I do not accept the applicant’s evidence that she is only gaining work experience at these two salons and is not being paid by any of them. In any case, ‘working’ in Australia means activity that normally attracts remuneration (r.1.03) and the applicant did not have to be paid wages to be considered working in Australia.

5. Accordingly, I find that the applicant deliberately breached the 8101 (no work) condition imposed on her bridging visa ‘E” for an extended period of time. I give significant weight to this consideration.

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

6. I have taken into consideration the applicant’s evidence that in India, she has completed a Bachelor Degree and that all of her siblings live in India. I have taken into consideration the applicant’s evidence that her husband had a small painting business in India and that all of his relatives live in India.

7. The applicant claims that the visa cancellation would cause hardship to herself and her family. She stated that she cannot start from zero in India as she has nothing there; that she has been living in Australia for 10 years and is improving her hairdressing skills; that she would like to open her own hairdressing salon in Australia; that Australia provides better medical treatment than India and that there is better gender equality in Australia.

8. In his submissions, the applicant’s representative invited the Tribunal to take into consideration the position of the applicant’s son who attends school and has lots of friends in Australia. It was submitted that it would be hard for him to transfer to a school in India.

9. I accept that the applicant has been living in Australia since 2008 and that both she and her family have established ties to the Australian community. I have taken into consideration the applicant’s evidence that neither she nor her husband have any relatives in Australia.

10. Considering her family composition, formal education completed in India and Australia and her work experience gained in Australia, I do not accept the applicant’s claim that she will not be able to re-establish herself in India.

11. In her evidence, the applicant stated that Australia provides better medical treatment than India and that there is better gender equality in Australia. This claim was not supported by any independent evidence and she made no specific claims as to how would she or her family be affected by claimed gender inequality or inadequate medical treatment in India. As such I give limited weight to this evidence.

12. In her evidence, the applicant stated that she would like to open her own hairdressing salon in Australia. Again, this claim was not supported by independent evidence and as such I give limited weight to this evidence. In any case, the purpose of granting a Subclass 457 visa was not to enable the visa holders to set up their own business in Australia.

13. I accept that her son is attending school in Australia and has been living in this country since his birth. I accept that the applicant’s son may have some difficulties adjusting to a different education system in India. However, I am not satisfied that the visa cancellation would cause significant hardship if the child’s studies in Australia were disrupted. I consider that the purpose of a Subclass 457 visa is not to enable family members to study in Australia.  

14. 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 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.

15. In any event, the applicant is not prevented 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. I am 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.

    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

16. 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.

17. The Tribunal is 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

18. Whilst the applicant’s husband’s and son’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 son.

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

19. 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).  

20. Based on the evidence before me, I am not satisfied 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

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

22. 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

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

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

    Antonio Dronjic
    Member