Meena Rani (Migration)

[2018] AATA 5829

Meena Rani (Migration) [2018] AATA 5829 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Meena Rani
Mr Bikramit Singh

CASE NUMBER:  1720795

HOME AFFAIRS REFERENCE(S):           BCC2017/2479575

MEMBER:Amanda Mendes Da Costa

DATE:17 December 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 second named applicant.

Statement made on 17 December 2018 at 3:49pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 – Cook – employment ceased – sponsor’s business ceased operations – no new approved nomination within 90 days of ceasing employment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 348, 359, 360, 363
Migration Regulations 1994, Schedule 8, condition 8107

CASES
Hasran v MIAC (2010) 183 FCR 413
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection (2014) 236 FCR 393
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 239 CLR 332
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 5 September 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) of the Act on the basis that the applicant did not comply with condition 8107(3)(b) attached to her visa because the applicant ceased employment with her sponsor for a period exceeding 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 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.

4. The applicants were represented in relation to the review by their registered migration agent.

5. On 24 October 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting her to comment on information that it considered would be part of the reason for affirming the decision under review. The particulars of that information included the fact that the applicant ceased employment with her sponsor on 18 November 2016 and that on 5 September 2017, being the date her visa was cancelled, she had not worked for her sponsor for more than 90 consecutive days.

6. The Tribunal further invited the applicant pursuant to s.359(2) of the Act to provide information regarding the purpose of her travel to and stay in Australia; the degree of hardship that may be caused by visa cancellation; the circumstances in which the ground for cancellation arose; the applicant’s past and present behaviour towards the Department; Australia’s obligations under international agreements; the impact of any cancellation on the victims of family violence and any other relevant matters.

7. A response to the request for information was due by 7 November 2018. On that date the applicant’s migration agent wrote to the Tribunal seeking a four week extension to enable their client to provide the Tribunal with information.  On 20 November 2018 the Tribunal wrote to the applicant’s migration agent, advising that it would extend the period in which the applicant could provide information to the Tribunal until 14 December 2018.

8. As at the time of this decision, the applicant has not provided any information to the Tribunal and no explanation for this has been forthcoming.  In these circumstances s.359C applies and pursuant to s.360(3) of the Act, the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC (2010) 183 FCR 413.

9. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.  In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It also had regard to the decision in Minister for Immigration and Citizenship v Li (2013) 239 CLR 332 regarding the reasonableness of any request for adjournment and the Federal Full Court decision in Minister for Immigration andBorder Protectionv Singh (2014) 231 FCR 437 which considered this issue, as well as a more recent decision in Kaur v Immigration and Border Protection (2014) 236 FCR 393 where analogous issues were discussed.

10. The Tribunal considered whether, in the circumstances of this case, the information that there were no grounds for the cancellation of the applicant’s visa or reasons why the visa should not be cancelled are likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the informational documents of the applicant.

11. In these circumstances and for the reasons set out in this decision, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes it is uncertain if and when the applicant will provide information in writing as to whether the grounds for the cancellation of the applicant’s visa exist and whether there are reasons why the applicant’s visa should not be cancelled.  The Tribunal is not disposed to delaying making a decision indefinitely.

12. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to provide comments on or information regarding the grounds for cancellation of the applicant’s visa and any reasons for not cancelling the visa.

13. 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

14. 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?

15. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. 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.

16. The evidence before the Tribunal establishes that the standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was SEHMI PUNJABI THALI Pty Ltd (the sponsor).  The applicant was nominated in the occupation of cook, ANZSCO 351411.

17. On 1 September 2017 the Department notified the applicant of an intention to consider cancellation of her visa.  The notice invited the applicant to respond in writing.  The applicant responded in writing on that date, providing reasons why her visa should not be cancelled.  The applicant advised that she was employed by the sponsor from 1 July 2012 to 18 November 2016, when her employment ceased due to the sponsor’s business ceasing to operate.  The applicant stated that after ceasing her employment with the sponsor, she was employed (subject to a nomination approval) by a new employer, Punjabii By Nature Pty Ltd, which lodged a nomination application for the applicant with the Department, on 10 February 2017.  That nomination application was refused by the Department on 24 August 2017.  The applicant further advised that the business Punjabi By Nature Pty Ltd had subsequently lodged a new nomination application for the applicant.  This application was yet to be determined by the Department at the time of the delegate’s decision.

18. In her response, the applicant argued that the circumstances under which the grounds for cancellation arose were beyond her control and that the Department should give significant weight to the fact that she had obtained another sponsor and further employment.

19. The occupation of cook is not one specified in the relevant instrument referred to in condition 8107(3A) to exempt the visa holder from having to comply with the requirements of condition 8107(3)(a)(ii).  Therefore, while the applicant continues to hold the Subclass 457 visa she can only lawfully work in Australia for either the sponsor or an associated entity.  Departmental records also indicate that since the cessation of her employment, the applicant has not been nominated by an approved sponsor to work for them in a skilled occupation.

20. Based on this information, the Tribunal is satisfied that the applicant has not complied with condition 8107(3)(b) attached to her visa because the applicant ceased employment with the sponsor for a period exceeding 90 consecutive days.    

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

22. 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’.

    Purpose of the applicant’s travel and stay in Australia, and whether the applicant has a compelling need to travel to or remain in Australia

23. The applicant came to Australia on a student visa in 2009.  She was granted a further student visa in November 2011.  She completed a Certificate III and IV in cookery and a Certificate IV and Diploma in business.

24. The applicant was granted the Subclass 457 visa on 22 November 2013 for the purpose of working for the sponsor in the position of cook.

    Extent of compliance with visa conditions

25. The Subclass 457 visa only allows a visa holder to work for the employer that is currently sponsoring him or her for their Subclass 457 visa.  A visa holder is only permitted to work in the role that the Department has approved in the nomination application.  There is no record in either the Department’s or Tribunal’s files which shows that the applicant had a new 457 nomination approved for another employer within 90 days of ceasing employment with the sponsor. 

26. The Tribunal accepts that condition 8107(3)(b) of the applicant’s visa allowed her 90 days from ceasing employment with sponsor in which to locate a new sponsor, apply for a another visa or make arrangements to depart Australia.  The Tribunal notes that there is no evidence that the further nomination application lodged by Punjabii By Nature Pty Ltd in respect of the applicant was granted, or that the applicant located a new sponsor.

27. There are no other known instances of non-compliance with visa conditions by the applicant.

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

28. As the applicant has not provided a response to either the Department’s notice or the Tribunal’s request for information, the Tribunal is not aware of any specific information relevant to the degree of hardship that may be caused to the applicant and any family members. However, the Tribunal does acknowledge that visa cancellation may cause the applicant some degree of hardship in making arrangements to depart Australia and notes that in this respect, she has been residing in Australia on a temporary visa since her initial arrival in 2009.

29. The Tribunal acknowledged that the cancellation of the applicant’s visa and her return to India is likely to affect her husband (Bikramit Singh) but has no material before it regarding the personal circumstances of the applicant’s husband or her family.

    Past and present behaviour of the applicant towards the Department

30. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Consequential cancellations under s.140 of the Act

31. The Tribunal finds that the cancellation of the applicant’s Subclass 457 visa would result in the consequential cancellation of the Subclass 457 visa of the applicant’s husband under s.140 of the Act.

    Mandatory legal consequences

32. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained.  There is no suggestion that she will be detained indefinitely.  The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to an exclusion period in relation to some future visa applications.  There are no provisions in the Act which prevent the applicant from making a valid application without the Minister’s intervention.

    International obligations including non-refoulement

33. There is no evidence and the applicant does not claim that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

    Conclusion

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

    DECISION

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

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

    Amanda Mendes Da Costa
    Member