Minti Kumari (Migration)

[2019] AATA 2913

Minti Kumari (Migration) [2019] AATA 2913 (28 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Minti Kumari
Mr Dilbag Singh
Master Aayu Khenchi

CASE NUMBER:  1832006

HOME AFFAIRS REFERENCE(S):           BCC2018/2765522

MEMBER:Ian Berry

DATE:28 June 2019

PLACE OF DECISION:  Brisbane

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 28 June 2019 at 11:38am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no response to s 359A invitation – not entitled to appear before the Tribunal – ground for cancellation – sponsor cancelled and barred under s 140M – deregistered corporation – consideration of discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 140M, 348, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.43

CASES
Hasran v MIAC [2010] FCAFC 40
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 26 October 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (‘applicant’ or ‘first named applicant’) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (‘Act’).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that r.2.43(1)(l)(iv) is applicable in that the applicant is the holder of a Subclass 457 (Temporary Work (Skilled)) visa, who is a primary sponsored person of a standard business sponsor where that sponsor has been cancelled or barred under s140M of the Act. The Tribunal does not have jurisdiction relating to the applicant’s family.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Facts

4. The applicant was nominated by JJC Partnership Pty Ltd (‘JJC’) for the occupation of ‘Café or restaurant manager’ (ANZSCO code 11111) (‘Occupation’).

5. The applicant provided the delegate’s decision dated 24 October 2018 which provided the following chronological information:

   ·The JJC nomination was approved on 28 April 2016. The applicant was the identified nominee to undertake the Occupation.

   ·The applicant was granted a 457 visa on 1 June 2016.

   ·On 8 August 2016, Sheetal Indian Restaurant Pty Ltd (‘SIR’) lodged a nomination to sponsor the applicant in the Occupation.

   ·On 23 August 2016 the SIR nomination was otherwise finalised.

   ·On 2 March 2017, SIR lodged a nomination application with the applicant being identified to undertake the Occupation.

   ·On 7 September 2017, the SIR nomination was refused.

   ·On 21 December 2017, Tandoori Place on Runaway Bay Pty Ltd (‘Tandoori’) lodged an application nominating the applicant for the Occupation.

   ·On 23 January 2018, the Tandoori nomination was refused.

   ·On 16 March 2018, Tandoori lodged another nomination application to sponsor the applicant in the Occupation.

   ·The Second Tandoori Nomination Application Was Refused.

   ·On 17 April 2018, the Department’s Sponsor Monitoring Unit (‘SMU’) undertook enquiries and an investigation which resulted in finding that JJC was not lawfully operating a business. The findings were based on the following evidence:

   i.The Australian Securities Investment Commission (‘ASIC’) records revealed that JJC was deregistered on 21 December 2016; and

   ii.A search of ABN Lookup showed that JJC’s Australian Business Number had been cancelled from 1 January 2017.

   ·On 8 June 2018, the Minister’s delegate cancelled the approval of JJC as a standard business sponsor, under s140M(1)(a).

   ·On 26 October 2018 the Department sent to the applicant the Notification of Cancellation of Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa letter (‘NOICC’). This notice advised the applicant that her sponsor had its standard business sponsorship cancelled.

   ·On 31 October 2018, the applicant made her application for review of the decision to cancel her visa.

6. 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.

7. On 13 June 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide information , and comment upon, the following particulars of information:

   ·Information before the Tribunal indicates that you do not have an approved business nomination. The application for approval of a business nomination made by Tandoori Place on Runaway Bay Pty Ltd was cancelled by the Department on 22 March 2018 and affirmed by the Tribunal on 21 May 2019.

   ·The information may be relevant to affirming the decision under review as it indicates that you do not meet the requirements of cl.457.223(4)(a)which requires that there is an approved nomination of an occupation in relation to you by a standard business sponsor, which has not ceased.

   ·If you are not the subject of an approved nomination by an approved standard business sponsor at the time of the tribunal’s decision, the Tribunal may find you do not meet cl.457.223(4)(a).

   ·If the Tribunal finds you do not meet any of the remaining subclauses in clause 457.223, the Tribunal must affirm the decision to grant you a Temporary Business Entry (Class UC) visa

8. The invitation was sent to the applicant’s last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 5 June 2019 the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicant has not provided any information or comments within the prescribed period and no extension of time has been granted. The applicant has not provided any information or comments. In these circumstances, s.359C applies and pursuant to s.360(3), 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 allow her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or comments.

10. The Tribunal’s s.359A letter referred to the word “refused” in place of a more appropriate description of “cancelled” when referring to the applicant’s visa. The Tribunal reissued the s.359A letter to the applicant as that was in fairness to the applicant. The applicant did not respond or provide any information to either letter.

11. 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

12. Under s.116 of the Act, the Minister may cancel a visa if 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)(a). 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?

    s.116(1)(g) - a prescribed ground for cancelling a visa applies to the holder Fact or Circumstance for visa grant no longer exists

13. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied that there is a prescribed ground for cancelling a visa applies to the applicant. In this case, the delegate has relied upon r.2.43(1)(grounds upon which the Minister may cancel a visa) is set out in r.2.43(1)(l)(iv) . This ground states:

    R.2.43(1)(l)(iv)

    For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are(l)in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) – that(iv) the sponsor has been cancelled or barred under section 140 M of the Act…

14. The applicant has not made any submissions, comments or claims upon which the Tribunal would ordinarily give time to read and consider whether the decision of the delegate is reasonable and proper.

15. The only evidence the Tribunal has before it, are the facts and circumstances set out in the delegate’s decision, which have been set out in this decision.

16. The applicant’s nominator JJC (the only nominator with whom the applicant has an approval) was not operating a business by reason of the evidence obtained from ASIC and the Australian Business Lookup.

17. JJC, through a search conducted by the Tribunal, is not on the ABN Lookup register.  An ASIC search conducted by the Tribunal in respect of that same corporation reveals that JJC is deregistered and has been so since 21 December 2016.

18. As deregistered corporations can be reregistered, the Tribunal searched the ASIC records on 28 June 2019 and ascertained that JJC is still deregistered.

19. 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

20. 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. The applicant has not raised any matter upon which the tribunal can exercise its discretion.

21. The Tribunal does not know of any circumstances of hardship that may be caused to the applicant and the applicant’s family by cancellation of her visa.

22. The Tribunal accepts that the applicant may not be the cause of the cancellation of her visa, but does not know with any certainty, as the applicant did not supply information or make comment as to the history of her involvement with her sponsors and nominators.

23. The delegate’s decision does not reveal past or recent errant behaviour of the applicant toward the Department.  The decision to cancel the applicant’s visa would result in the applicant and family returning to her home country. The Tribunal does not know as to the attempts to secure a nomination of an Occupation. There are not any international obligations by reason of the applicant’s nationality.

24. The Tribunal is unaware of any family, business or other ties in Australia.

25. The applicant’s family includes the applicant’s spouse and son aged approximately 5 years. As those visas are cancelled automatically, the Tribunal does not have jurisdiction to make any decision in respect of them.

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

    DECISION

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

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

    Ian Berry
    Member