MALIK (Migration)

[2019] AATA 4182

MALIK (Migration) [2019] AATA 4182 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sandeep MALIK
Mrs Seema SEEMA
Ms Shreya SINGH

CASE NUMBER:  1903457

HOME AFFAIRS REFERENCE(S):           BCC2017/2747162

MEMBER:Jennifer Cripps Watts

DATE:4 September 2019

PLACE OF DECISION:  Sydney

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 04 September 2019 at 9:32am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – postponement of hearing granted – ground for cancellation – sponsorship cancelled or barred – ceased employment with sponsor – consideration of discretion – unable to secure new nomination – delayed finalisation of decision – purpose of visa not fulfilled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 140M, 348
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Condition 8107

CASES
Ibrahim v MHA [2019] FCAFC 89
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 13 February 2019 made by a delegate of the Minister for Home Affairs (the delegate) 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)(g) on the basis that a prescribed ground for cancelling the visa applied, namely, that the standard business sponsor who nominated the application relating to his Subclass 457 visa, had their standard business sponsorship cancelled or barred under s.140M of the Act: r.2.43(1)(l)(iv). 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.

4. On 14 February 2019, the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision. 

5. On 5 June 2019, the Tribunal invited the applicant to attend a scheduled hearing on 5 July 2019.  On 14 June 2019, the applicant’s migration agent requested that the hearing be postponed because he had only been appointed the day before.  It is a statutory requirement that the Tribunal give applicants at least two weeks’ notice to attend a Tribunal hearing.  The request was considered and even though the hearing was still three weeks away, as a matter of fairness to the applicant, because it is a cancellation of a temporary visa, the postponement was granted, the hearing was moved to 18 July 2019, and the applicant was notified (effectively giving him another two or so weeks).  Written submissions from the applicant’s migration agent were received, dated 12 July 2019, prior to the scheduled hearing.

6. The applicant and his wife (the second named applicant) appeared before the Tribunal on 18 July 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

7. The applicants were represented in relation to the review by their registered migration agent, Mr Jyoti N Bharati, Migration Agent Registration Number 0501219.  He is also registered as a legal practitioner in New South Wales.

8. 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

   Background

9. The applicant and the secondary applicants are citizens of India.  The applicant was nominated by SEAQS Pty Ltd (the sponsor), who was approved as a standard business sponsor in August 2015, for a Subclass 457 visa in the occupation of Analyst Programmer (ANZSCO 261311).  On 20 October 2015, the applicant was granted the 457 visa offshore.  The applicant, his wife and child (the secondary applicants) arrived onshore on 26 November 2015 holding 457 visas, valid for four years to 20 October 2019.

10. The delegate’s decision contains the following information about circumstances leading to the sponsorship cancellation and the applicant ceasing employment with the sponsor:

    a.The Department’s Sponsor Monitoring Unit (SMU) conducted an investigation and determined that the sponsor provided false or misleading information in the form of a ‘fraudulent schedule of lease’ in support of the application they made for a standard business sponsorship and relating to four nominations of Subclass 457 visa holders (including the applicant in this matter);

    b.On 1 August 2017, the sponsor had their standard business sponsorship cancelled under s.140M(1)(a) of the Act;

    c.On 18 September 2017, on the basis of the sponsor’s cancellation, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa inviting a response;

    d.The applicant responded to the NOICC on two separate occasions, 20 and 22 September 2017, and said that before he received the NOICC he was ‘not aware of any issues with the company’s sponsorship’ and when he found out (on 18 September 2017), he talked to someone in management and was told that the sponsor had a review pending at the Tribunal relating to the cancellation of their standard business sponsorship;

    e.On 19 November 2017, the applicant’s new employer, Vepabiz Pty Ltd (Vepabiz), who had given an undertaking to sponsor him, applied for Standard Business Sponsorship (which was refused) and a nomination application for the applicant to work as a Developer Programmer (ANZSCO 261312)

11. The sponsor had their sponsorship cancelled on 1 August 2017 and had 21 calendar days to apply to the Tribunal for review of the decision.  They lodged a review application on 30 August 2017, which was out of time.  The Tribunal (differently constituted) made a No Jurisdiction decision, for this reason, on 6 October 2017.  There is no pending review for the sponsor relating to the applicant’s Subclass 457 visa that is the subject of this review.

12. The applicant says that he ceased employment with the sponsor in September 2017 and found a company, Vepabiz, who in November 2017 (which the Tribunal acknowledges is within the relevant 90 day period: condition 8107(3)(b)) agreed to lodge a nomination application for him.  However, their application for standard business sponsorship was refused, on 6 February 2019.  They had 21 calendar days to apply to the Tribunal for review of the decision and lodged a review application on 6 March 2019, out of time, and for that reason the Tribunal (differently constituted) made a No Jurisdiction decision in the matter. 

13. The applicant gave evidence at the Tribunal hearing that he trusted that Vepabiz was still progressing a subsequent nomination application to sponsor him, but is now aware they have not had a positive outcome and that there is no application by them still on foot, with the Department or on review.  This is discussed in more detail later in the decision.

14. The Tribunal is satisfied that the applicant has been trying to find a standard business sponsor who would nominate him since he ceased working for the sponsor in September 2017. 

    Does the ground for cancellation exist?

15. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(iv) is relevant.

16. It is noted by the Tribunal that the applicant has submitted that he is ‘an innocent victim of the system’ because he had no knowledge of and had no part in the cancellation of the sponsor’s Standard Business Sponsorship, which occurred on 1 August 2017.  However, the Tribunal is satisfied that the applicant ceased working for the sponsor no later than September 2017 and, as he has not secured a new nomination, that he is in breach of condition 8703(3)(b) because he ceased employment with the sponsor and the period during which he ceased employment has exceeded 90 days.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

18. 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’.

19. Condition 8107(3)(b) attaches to the applicant’s visa, meaning that if his last visa was a Subclass 457 visa he must only work in the occupation listed in the mostly recently approved nomination and if he ceases that employment, the period during which he ceases employment must be no more than 90 consecutive days.  At the time of this decision, he has ceased employment with the sponsor for nearly two years.

20. It is acknowledged that the applicant has made attempts since the sponsor’s standard business sponsorship was cancelled in August 2017 to find a new sponsor to nominate him.  However, despite his best efforts, he has not been successful.  The applicant does not hold a valid nomination and has not provided evidence that a nomination application has been made for him.

    Evidence at the Tribunal hearing

21. At the hearing, the applicant gave evidence that he is currently spending some time in Orange with relatives and mentioned one is Mahinder Bazzad, who he says is a maternal uncle.  The applicant said he went to Orange for a break because he has been ‘mentally disturbed’ about his visa status.  He confirmed that only he has gone to Orange and that his wife and daughter did not go with him because his wife works and his daughter attends school in Sydney.

22. The applicant confirmed that he was aware the sponsor’s standard business sponsorship had been cancelled on 1 August 2017 because in around September 2017 he received a letter from the Department advising him of this.  He said that someone at the company, Mr Chaudhry, a company director, told him that they had applied to the Tribunal for review of the decision to cancel the sponsor’s standard business sponsorship.  When he was notified, in the NOICC, that the sponsorship was cancelled, the applicant says he stopped working there and says he is not currently working and hasn’t been working for the sponsor or anyone else since September 2017.  He said he is aware that even though he has work rights he can only work in the same occupation for which he was sponsored, Analyst Programmer, and he has not been able to find such work in his current circumstances.

23. The applicant said that following ceasing work with the sponsor in September 2017, in November or December of 2017, he started talking to a potential new sponsor, Vepabiz.  He said the person he talked to was ‘Mr Bobby’.  The applicant was asked what his whole name is and said he is Bobby Bazaad.  The Tribunal recognised the surname as being the same as the applicant’s uncle who he says lives in Orange and asked if it is the same person or if the two Mr Bazaads are related.  The applicant said he is sure they are not related, adding that Mr Bobby Bazaad is running a business in Guyra in northern New South Wales, not Orange.

24. The applicant provided the Tribunal with a letter from Priyanka Singh dated 22 June 2019 (about a month before the Tribunal hearing), on Vepabiz Pty Ltd (ABN 30 614 572 842) letterhead, saying that it is the company’s intention to sponsor and employ the applicant as an SAP Programmer and said they had lodged standard business sponsorship and nomination applications for him in 2017 but that the standard business sponsorship was not approved ‘citing minor questions’ and that although they lodged a review application with the Tribunal that was unsuccessful.  In the Vepabiz letter, Ms Singh says that the company intends to lodge a ‘new SBS and also Nomination for Mr Malik’.  The applicant was asked when he last talked to Mr Bobby and how Mr Bobby was connected to Ms Singh and said he had last spoke to Mr Bobby about a month and a half prior to the hearing, which the Tribunal takes to be around May 2019, and that Ms Singh is Mr Bobby’s wife.

    Section 359AA

25. At this point in the hearing, given that the applicant seemed to be of the view that Vepabiz had an active nomination application lodged with the Department, information about Vepabiz was put to him as adverse information, observing the Tribunal’s obligations under s.359AA of the Act. 

26. The information was, essentially,  that on the basis of a check of Department records, the Tribunal could see that Vepabiz had not made another application for standard business sponsorship or nomination of the applicant and for that reason, the Tribunal’s view was that there was little prospect of a nomination application relating to the applicant being made and approved ‘any time soon’.  The Mr Bharati had included in his written submissions that the Vepabiz nomination application ‘is in process of and expects outcome will come soon positively’, which appeared clearly not to be the case.  The applicant was told that the Tribunal’s view was that the information indicating Vepabiz had not made such applications for him (since the earlier refusal in 2017) was relevant and, if relied on, would be a reason that when all discretionary matters were considered, that would not weigh in his favour.  The applicant was invited to orally comment on or respond to the information, or to ask for additional time to comment on or respond to the information after the hearing.  He responded by saying he wanted more time to find another company.  The Tribunal asked him if he wanting more time to find another sponsor or to comment on the information.  The applicant indicated he was confused because he does not have knowledge about the companies.  Tribunal is satisfied the applicant understood the information that had been put to him and that it was adverse to his case.  What he seemed to be indicating he was confused about was how he could be expected to have known about the problems with ‘the companies’, the sponsor (SEAQS) and Vepabiz.  He said he is hoping that Vepabiz will be approved as a sponsor because it would be better for him if Vepabiz can get approved.

27. Because it was not entirely clear whether the applicant wanted more time to comment or more time to find a new sponsor, or both, and both the applicant and his wife had requested time to find a new sponsor on a few occasions during the hearing, as a matter of fairness to him the Tribunal gave an undertaking to the applicant not to make a decision in his matter before 20 August 2019.  This gave the applicant effectively another six or so weeks to provide evidence of a having found a new sponsor.  By request from Mr Bharati, that date was extended to the Tribunal not making a decision before 4 September 2019.

28. The applicant’s wife, Seema, gave oral evidence at the Tribunal hearing.  She said that their family came to Australia, having applied for the visas in India, and were not aware of all the circumstances of the sponsoring company (SEAQS).  She said that had little knowledge about Australia or Australian culture and that whenever the sponsor asked them to sign documents, they signed them.  Ms Seema said that when her husband started work, suddenly he got ‘the letter’ (meaning the NOICC in September 2017).  She said he discussed things with her and he was shocked and has suffered significant stress since then and that ‘time has gone on, and on’, but still they have had no positive news regarding his visa situation.  Ms Seema said that he husband applied with Vepabiz and that they did not know that anything had gone wrong with that company.  Evidence was given by her that their daughter is at school, that she is a brilliant student and that going back to India will be difficult for her.  She said they want more time to find a sponsor.  It is acknowledged that both the applicant and his wife submitted that 90 days is not long enough (referring to condition 8107(3)(b)) and is an unreasonably short amount of time to find a new sponsor.

29. The Tribunal has considered and taken into account all relevant facts and matters when consider the discretion, including Ms Seema’s evidence, the evidence of the applicant and information contained in the written submissions of Mr Bharati dated 12 July 2019.

    Purpose of the visa holder’s travel and stay in Australia

30. The purpose of the applicant’s stay in Australia was to work for a sponsor in the nominated occupation while he held a Subclass 457 visa, granted on 20 October 2015 for four years.  On the basis of the nomination by the sponsor, the applicant commenced work as an Analyst Programmer in September 2015.  In September 2017, following cancellation of the sponsor’s standard business sponsorship, the applicant has no longer been in Australia for the purpose of his travel and stay since 1 August 2017.

31. The Subclass 457 visa program was in place up to 18 March 2018 for Australian businesses to nominate overseas workers to fill temporary skill shortages.

32. Despite the Tribunal accepting he has made dedicated attempts to find a new sponsor, the applicant has been unsuccessful in the two or so years since he ceased to be in Australia for the purpose of his travel and stay as a holder of a Temporary Work (Skilled) (subclass 487) visa, which the Tribunal considers to be a significantly long period of time.  The applicant has resided in Australia for around four years and for half that time now he has no resided here for the purpose of his travel and stay relating to his Subclass 457 visa.

    Extent of compliance with visa conditions

33. There is no evidence before the Tribunal, other than his non-compliance with condition 8107(3)(b) that attaches to the Subclass 457 visa, that the applicant has been non-compliant with his visa conditions.

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

34. In submissions, the applicant says he had a job in India that he resigned from before he came to Australia and that he would find it hard to ‘adjust in Indian Market again’.  Given that he has worked in the Indian market before coming to Australia in 2015 and has now had two years additional work experience as an Analyst Programmer in Australia, from which he submits he has ‘gained valuable skills’, it is reasonable, in the Tribunal’s view, to think that he may be able to find suitable work again in India.

35. The applicant said at the hearing that he has not worked or earned any income himself since September 2017, but that his wife does some casual jobs and they do their best to manage on her income.  It has been submitted, and is accepted, that cancellation of the visa will cause some hardship and that some inconvenience could be caused by the applicant having to depart Australia with his family. 

36. It is acknowledged that the applicants had hoped to stay in Australia permanently if possible.  Holding a 457 visa did not prevent pursuing permanent residency in certain but not all circumstances.  However, the 457 visa program was not one that held out a promise of permanent residency.  It was a visa program which, although beneficial for 457 visa holders, was primarily, or at the least equally, for the benefit of Australian businesses being able to fill temporary vacancies where there were skills shortages in the market.

1. The applicant and his family are citizens of India, they have lived in Australia for about four years.  For half of that time, the applicant was in paid employment but for the last two years, on his evidence, he has not received any salary.  His financial circumstances in Australia for the last two years have not been favourable to him.  And while it is acknowledged that Australian salaries are usually higher than in India, the applicant and his family have managed on one modest income for the last two years and the Tribunal does not accept that, if he can manage in Australia earning no income, that he would suffer significant financial disadvantage if he had to return to work in India, or any other country where he may have work rights. 

2. The applicant has submitted that he will suffer ‘extreme hardship’ for his immediate family and also his parents because they depend on him ‘emotionally and financially’.  The applicant has not earned an income in Australia for two years and no claim was made or evidence provided that he sends money home to his parents in India, or more particularly that he has done so since September 2017 when he ceased working for a salary.  Cancellation will not necessarily, in the Tribunal’s view, preclude the applicant, if he returns to India, from continuing to provide the emotional and financial support he claims to provide to his elderly parents and to his immediate family. 

3. In addition, while the Tribunal accepts that the applicant and his wife would like their daughter to continue her education in Australia, it is not accepted that she could not transition back into the Indian education system.  She is an Indian citizen who speaks both English and the language of her country of origin.  The Tribunal does not suggest that there would not be some period of adjustment that may not present challenges in the short term, but does not consider it to be unreasonable to think that the applicant’s daughter would be able, with the support of her parents, to continue her secondary education in India.

   Circumstances in which the ground of cancellation arose

4. The sponsor had their standard business sponsorship cancelled on 1 August 2017.  The Tribunal is satisfied that it appears this was beyond the applicant’s control.  The applicant’s visa was cancelled on 13 February 2019, in circumstances that arose from sponsor’s cancellation on 1 August 2017, but also in circumstances where he had not managed, for a period of about 17 months (at the time of cancellation) to find a new sponsor, as required by condition 8107(3)(b). 

5. At the time of this decision, the applicant has had available to him another six months to secure a new nomination and, although invited to do so, has provided no evidence to the Tribunal, either at the hearing on 18 July 2019, or since, that reliably indicates he is the subject of an approved nomination or that a nomination application by an approved standard business sponsor has been made for him.

   Past and present behaviour of the visa holder towards the Department

6. There is no information before the Tribunal that the applicant has been uncommunicative, non-responsive or unco-operative with the Department.

   Consequential cancellations under s.140

7. In the event of cancellation, the secondary applicants who are dependants will have their visas cancelled as a consequence under s.140 of the Act.  The Tribunal is satisfied that the applicant’s wife and daughter remain members of the applicant’s family unit and, although they may not wish to depart Australia and may even experience some challenges, there is no reason to think that the family would, or needs to be, separated.   

   Mandatory legal consequences, including unlawfulness and detention

8. If the visa is cancelled, the applicant will become an unlawful non-citizen and, if he does not depart voluntarily, may be detained under s.189.  Under s.48 of the Act, he would be unable to lodge another visa application, with some limited exceptions. A three year re-entry ban will apply if the visa is cancelled.  If the applicant applies for a new temporary visa, he can ask the Department to set aside the re-entry ban, if there are compassionate or compelling circumstances to put it aside and grant the visa.

   International obligations, including refoulement

9. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

10. 'Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103].  It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

11. The applicant has not made any claim or provided any evidence indicating that he cannot return to his home country, India, because he would be subject to a risk of harm.     

    Other relevant matters

12. Mr Bharati submitted that the delegate did not consider the best interests of the child (the third named applicant), according to Direction 65, cl.9.2, which requires that the decision maker makes a determination about whether or not cancellation is in the best interests of a child who is under 18.  The Tribunal has considered it in the circumstances of this case.

13. Written submissions were provided and also oral evidence, which has been considered, that the applicant’s daughter, who is under 18 and attending secondary school in Sydney, will be disadvantaged if her Australian schooling is disrupted as a result of cancellation and the family’s return to their country of origin, India.  Evidence has been provided, and it is accepted, that she is a good student who has received some academic rewards and who excelled at sports while attending school in Australia for the last four or so years.

14. The applicant said that he is currently staying with relatives in Orange because of the mental stress he has suffered due to his visa problems, while his wife and daughter remain in Sydney; his wife for work and his daughter to continue with her schooling.  However there was no claim or suggestion that this situation is permanent or that they are not managing, save for the stress it is accepted they say they are under due to the unresolved status of their visas.  The applicant, his wife and daughter all attended the Tribunal hearing and the Tribunal had no doubt, on the whole of the evidence, that they continue to be a family unit and that the applicant has and will continue to have a significant parental role in his daughter’s life.  As a consequence of cancellation, it is the Tribunal’s view that the family will not be separated because all their visas will be cancelled. 

15. The applicant, despite his efforts, including the prospect of two nominations and having attended other job interviews, has not managed to secure a new nomination in the two or so years since he ceased working for the sponsor.  After receiving the NOICC in early 2019, he asked the Department that he be given ‘fair opportunity to find suitable employment with another company’.   At that time he had had 17 months to find a new sponsor.  In July 2019, he was granted an adjournment of the Tribunal hearing and he was given a total of another six weeks after the hearing to provide additional evidence.  In the circumstances, the Tribunal’s view is that the applicant has had a significantly generous period of time to obtain a new nomination.  The Tribunal has considered and weighed discretionary matters.

16. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

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

    Jennifer Cripps Watts
    Member