Neena Rani (Migration)

[2018] AATA 3977

Neena Rani (Migration) [2018] AATA 3977 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs  Neena Rani

CASE NUMBER:  1707841

HOME AFFAIRS REFERENCE(S):           BCC2016/2668579

MEMBER:Antonio Dronjic

DATE:22 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 August 2018 at 10:02am

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary (Skilled)) – ceased employment exceeded 90 days – not paid tax or superannuation – failure to find another sponsor – child’s medical condition – temporary visa ceased – visa class abolished – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

CASES
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s 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.

   Background to the cancellation of the applicant’s visa

3. The decision record of 10 April 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 29 October 2015, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 29 April 2017;

   ·The standard business sponsor who nominated the applicant to work as a cook was Walnish Pty Ltd;

   ·On 18 April 2016 the applicant ceased her employment with the sponsoring business;

   ·A notice of intention to consider cancellation (NOICC) was issued 22 March 2017;

   ·On 31 March 2017, the applicant responded in writing to NOICC stating that she ceased her employment with Walnish Pty Ltd because of tax, superannuation and salary issues; that she managed to find a new employer within 90 days; that her new employer lodged the nomination application with the Department on 19 July 2016 which was refused on 15 December 2016; that the prospective employer lodged another nomination application on 13 January 2017 and that the decision on this nomination is still pending at the Department.

   ·On 10 April 2017, the delegate proceeded to cancel the applicant’s visa.

4. The applicant applied to the Tribunal on 11 April 2017 for review of the visa cancellation and with her application submitted a copy of the primary decision record.

5. On 15 June 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 21 August 2018.

6. On 20 August 2018, the applicant’s representative submitted:

   ·Legal Submissions dated 17 August 2018;

   ·A copy of the e-mail dated 22 April 2016 sent by the applicant to the Department as evidence that she informed the Department that her employer was not paying tax and superannuation for the past 5 months;

   ·A copy of the nomination approval letter dated 26 September 2017 as evidence that the applicant’s prospective employer, the Joinery Café Pty Ltd had its application approved by the Department on the same day, nominating the applicant for the position of a cook at its business;

   ·A copy of the written undertaking provided by the Joinery Café Pty Ltd dated 9 November 2016 stating that they will meet all health care and community service cost related to the medical condition of the applicant’s daughter;

   ·A copy of the applicant’s daughter’s birth certificate;

   ·A copy of the mid-year school report for the applicant’s daughter; and

   ·A copy of the Psychological Assessment Report for the applicant’s daughter dated 10 April 2015.

7. The applicant appeared before the Tribunal on 21 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

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 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.

9. The Tribunal 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. The applicant is 35 years of age and a married national of India. Her husband and daughter are currently in Australia. The applicant confirmed in her evidence that husband’s and daughter’s visas were also cancelled by the Department. I explained that her husband’s and daughter’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.

11. In India, the applicant has completed a Bachelor Degree in Arts in 2004 or 2005 and has been working as a teacher for the period of three years. She married in December 2008. Her husband was a farmer in India and they lived at the farm owned by her husband’s parents. She stated that she does not own any property in India. Her father and two brothers live in Punjab. Neither she nor her husband has any relatives living in Australia.

12. She first came to Australia as a holder of a Student visa in September 2009. She has completed a Certificate III in Commercial Cookery and a Diploma in Business Management. The applicant’s daughter was born in Australia in March 2010. She lived with the applicant’s parents in India from March 2013 to early 2014. She is currently attending the second grade at Springvale Park School S.D.S.

13. On 29 October 2015, the applicant was granted a Subclass 457 visa based on the sponsorship and nomination by an Australian business Walnish Pty Ltd. She was nominated to work as a cook. Her visa was granted until 29 April 2017. I explained to the applicant that, because her visa would have, but for the cancellation, ceased on 29 April 2017, the Tribunal has no power to reinstate the visa even if the cancellation is to be set aside. I further explained to the applicant that as of 18 March 2018 it is no longer possible to apply for a Subclass 457 visa as it has been abolished and replaced with a new temporary working visa.

14. On 29 October 2015, she commenced her full time employment as a cook at Walnish Pty Ltd. She ceased her employment in April 2016 as she was not paid tax or superannuation. She reiterated that she informed the Department of cessation of her employment on 22 April 2016. The case officer from the Department had advised her that she has 90 days to find a new employment with the Australian business that is an approved sponsor and willing to nominate her for the position.

15. She gave evidence that she commenced employment at the Joinery Café Pty Ltd on 1 June 2016. She continued to work there for two weeks. Upon obtaining legal advice concerning her visa conditions, she ceased employment at the Joinery Café.

16. She confirmed that her new prospective employer lodged the nomination application with the Department on 19 July 2016. This application was refused by the Department on 15 December 2016.  The Joinery Café Pty Ltd lodged another nomination application on 13 January 2017 and this application was approved by the Department on 26 September 2017, several months after her visa was cancelled.

17. The applicant gave evidence that in April 2017 she applied to the Department to have a ‘no work’ condition removed from her bridging visa. She claims that on this occasion she did not receive any response from the Department. In September 2017 she engaged a migration agent and instructed him to apply to the Department to have the ‘no work’ condition removed from her bridging visa. The agent has failed to do so. Finally in March 2018, she approached the Department and her ‘no work’ condition was removed on 21 May 2018.

18. I enquired as to whether she commenced her employment at the Joinery Café after ‘no work’ condition was removed from her bridging visa ‘E’. The applicant stated that she did approach the owners of the business but was told that she can only get her job if she is granted visa. She confirmed that, as of the day of this hearing, she did not commence employment at the Joinery Café or any other Australian business.

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 submission provided in support of the application. I asked the applicant if there is anything else that she wants to raise with the Tribunal.

21. The applicant stated that her daughter was diagnosed with Autism Spectrum Disorder and that her future is here in Australia. She stated that in India there are no schools for children with this type of disability.

22. 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

23. 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?

24. 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.

25. In this instance condition 8107 was attached to the applicant's visa, which was granted on 29 October 2015 and which, but for its cancellation, was valid to 29 April 2017.

26. Based on the evidence before it, including the oral evidence from the applicant, I find that the applicant ceased employment with the sponsoring business in April 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).

27. 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

28. 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’.

29. 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]

30. 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

31. 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 Walnish Pty Ltd as a cook on a temporary basis. The applicant was unfortunate to lose her job in April 2016. She decided to remain in Australia and try to find a new employer. She managed to do so in June 2016. According to her evidence, on 1 June 2016 she commenced employment at the Joinery Café Pty Ltd. However, at that time, Joinery Café Pty Ltd did not have a nomination application with the Department, nominating the applicant to work as a cook at its business.

32. The applicant claims in her evidence that she was not aware that she was only allowed to work in a position in the business of the sponsor. I accept her evidence that, upon receiving the advice from a migration agent that she is prevented by her visa condition to work for this business; she ceased her employment at the Joinery Café after two weeks.

33. I accept that Joinery Café Pty Ltd lodged the nomination application with the Department on 19 July 2016 nominating the applicant for a position of a cook. This application was refused by the Department on 15 December 2016.  I accept that the Joinery Café Pty Ltd lodged another nomination application on 13 January 2017 which was approved by the Department on 26 September 2017. By that time, the applicant visa would, but for the cancellation ceased anyway.

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. 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 April 2016.  I give significant weight to this consideration.

    The reason for and extent of the breach

36. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in April 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 did not work in Australia from April 2016 until present time (with the exemption of two weeks employment at Joinery Café Pty Ltd from 1 June 2016)

37. 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

38. The applicant ceased her employment at Walnish Pty Ltd in April 2016. Despite not being able to recommence employment for more than 11 months, the department did not proceed with the visa cancellation until 10 April 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.

39. 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

40. The applicant gave evidence that, despite being prevented by the condition imposed on her visa, on 1 June 2016 she commenced employment at the Joinery Café Pty Ltd. At that time, Joinery Café Pty Ltd did not have a nomination application with the Department, nominating the applicant to work as a cook at its business. I accept the applicant’s evidence that she was not aware that she was not allowed to work for this business until she obtained legal advice from her migration agent. Accordingly, despite the fact that she breached the condition imposed on her visa (8107(3)(a)(ii)(B)) I give this consideration limited weight as the applicant ceased her employment at the Joinery Café after two weeks.

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

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

42. I have taken into consideration the applicant’s evidence that In India, she has completed a Bachelor Degree in Arts and has been working as a teacher for the period of three years; that all of her close relatives (father and two brothers) live in India and that neither she nor her husband have relatives in Australia.

43. In his submissions, the applicant’s representative stated that the applicant and her dependants will face multiple hardships and will ruin their lives and career if the visa remains cancelled without providing any particulars of this claim.

44. He submitted that the applicant’s daughter was diagnosed with Autism Spectrum Disorder and requires a modified curriculum at school. He wrote that Australia has proper medical and psychological facilities for upbringing and protection of children with disabilities. He submitted that the applicant will suffer hardship if required to leave Australia and apply form off shore for a Subclass 457 visa; that the applicant has limited financial resources and lodging the application form of shore would involve a significant cost. He further submitted that the applicant has lived in Australia for 10 years and has emotional concerns with her friends and social circle and that she will be prevented by public interest criteria 4013 from re-entering Australia for the period of 3 years.

1. I considered Psychological Assessment Report dated 10 April 2005, that was prepared by Belinda Dan and I accept her findings that the applicant’s daughter ‘appears to be displaying features associated with Autism Spectrum Disorder’ and that ‘it is anticipated that she has an intellectual impairment’. I also accept that the applicant’s daughter requires a modified curriculum, extra assistance at primary school and on-going speech therapy.

2. I considered the applicant’s daughter’s mid-year school report and I accept that she is attending the school for students with disabilities in Australia.

3. In her evidence, the applicant stated that there is no such a school in India for children with disabilities. This statement was not supported by any independent evidence. As such I give limited weight to this evidence. I do not accept that the applicant would not be able to re-establish herself in India, given her qualifications, employment background and family composition.  

4. I accept that leaving Australia may involve some hardship to the applicant and her family. 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 temporary visa which created no expectation of remaining in Australia permanently.

5. As I explained to the applicant 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 purpose of granting this visa is not to enable the applicant’s family to remain in Australia in order to access better medical and educational facilities.

6. The applicant’s Subclass 457 visa would have ceased, but for the cancellation, on 29 April 2017. As explained to the applicant at the hearing, the Tribunal has no power to reinstate the visa that has ceased. I accept that the applicant has a valid nomination from Joinery Café Pty Ltd (until 26 September 2018). However, as of 18 March 2018, the applicant can no longer apply for a Subclass 457 visa as it was abolished and replaced by a different visa Subclass. The applicant gave evidence that, despite having the approved nomination, the sponsoring business is not prepared to employ her unless she is granted an appropriate visa.

7. I do not accept the representative submissions that the applicant will be prevented by public interest criteria 4013 from re-entering Australia for the period of 3 years as her visa was cancelled under s.116 (1)(b) on the basis that she breached the condition 8107(3)(b).

8. 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

9. 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.

10. 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

11. Whilst the applicant’s husband’s and daughter’s visa were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his husband and daughter.

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

12. 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).  

13. In his submissions, the applicant’s representative stated that the applicant’s daughter was diagnosed with Autism Spectrum Disorder and requires a modified curriculum at school. He wrote that Australia has proper medical and psychological facilities for upbringing and protection of children with disabilities and that this would ‘amount to Australia’s breach of non-refoulement obligations pursuant to the Refugees Convention and the Refugees Protocol or the Convention on the Rights of the Child’. Again, no particulars or independent evidence supporting this statement was submitted to this Tribunal by the representative. He did not provide any submissions as to how will the claim that Australia has proper medical and psychological facilities be in the breach of international obligations pursuant to any of these international agreements. 

14. 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

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

16. 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

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

    Antonio Dronjic
    Member