Nikhath Yasmeen (Migration)

[2019] AATA 1024

Nikhath Yasmeen (Migration) [2019] AATA 1024 (8 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Nikhath Yasmeen Nikhath Yasmeen
Mr Rafee Mohammed
Miss Almas Tahoor
Mr Areeb Mohammed
Mr Abdul Ahad Mohammed

CASE NUMBER:  1730270

HOME AFFAIRS REFERENCE(S):           BCC2017/2673742

MEMBER:Antonio Dronjic

DATE:8 January 2019

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 08 January 2019 at 3:20pm

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Temporary Work (Skilled)) visa – had not worked only in the occupation listed in the most recently approved nomination – breach of condition 8107 – significant non-compliance – decision under review affirmed – no jurisdiction with respect to the other applicants

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348, 360
Migration Regulations 1994, r 2.12

CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
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
Tien & Ors v MIMA (1998) 89 FCR 80
Rani & Ors v MIMA (1997) 80 FCR 379
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Visnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 November 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. The delegate found that the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, namely as Community Worker, but has carried out work as General Clerk. The delegate found that the applicant had breached condition 8107 of Schedule to the Migration Regulations 1994 (the Regulations) which is attached to the applicant’s visa by specifically breaching condition 8107(3)(a)(i).

3. The applicants applied to the Tribunal on 1 December 2017 for review of the visa cancellation and with the application submitted a copy of the primary decision record. The applicants were represented in relation to the review by their registered migration agent.

4. 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.

5. On 22 November 2018, the Tribunal wrote to the applicant advising her hat it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 8 January 2019.

6. On 7 January 2019, the applicant’s representative wrote to the Tribunal advising that the applicant, pursuant to s.360 (2)(b), consented to the Tribunal deciding the review without the applicant appearing before it.

   Background to the cancellation of the applicant’s visa

7. The primary decision record of 28 November 2017, provided by the applicant to the Tribunal with the review application 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 30 March 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa for a period of four years;

   ·The most recently approved nomination in relation to the applicant was approved on 24 March 2016, for her to work in the occupation of Community Worker for standard business sponsor, Springwood (Vic) Pty Ltd.

   ·It is recorded that on 5 April 2017, the Department conducted a site visit at the sponsoring business. During the site visit, the sponsor stated that the nominee, Ms Nikhath is responsible for the roll-out and doing the applications for the National Disability Insurance Scheme (NDIS); that she mainly works from home and comes to office when required to conduct interviews with the residents to obtain information to be included in the forms; that she works as a social support and does not have office in either of the two centres (Edwards Lodge and Northern Terrace) and that the nominee completes Companion Card Forms. Based on that information, the delegate found that duties the visa holder had been undertaking in her work for the sponsor since 1 July 2016 have not been consistent with the nominated occupation of Community Worker but instead consisted with the duties of a General Clerk.

   ·It is further recorded in the primary decision record that on 30 May 2017, the Department conducted a telephone interview with Ms Nikhath during which she stated that from July 2016 to May 2017, majority of her work has been entering and processing data and filling forms and that she was mainly working on NDIS forms.

   ·A notice of intention to consider cancellation (NOICC) was issued 30 August 2017;

   ·On 5 October 2017, Ms Nikhath responded in writing to NOICC stating that she obeyed her employer whatever job responsibilities were given to her and declaring that she has not done anything wrong.

   ·On 28 November 2017, the delegate proceeded to cancel the applicant’s visa.

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

9. 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?

10. 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. In this instance condition 8107 was attached to the applicant’s visa. This condition requires, inter alia, that the applicant must work only in the occupation listed in the most recently approved nomination for the holder. In this matter, the applicant was nominated to work as Community Worker and the associated business nomination was approved by the Department on 24 March 2016.

11. Based on the investigation conducted by the Department as recorded in the primary decision record, I am satisfied that the applicant did not work only in the occupation listed in the most recently approved nomination, being a Community Worker, but was also undertaking the tasks of a General Clerk.

12. Based on this finding, I am satisfied that the applicant was in breach of condition 8107, specifically condition 8107(3)(a)(i), of her visa. I am therefore satisfied that the ground for cancellation exists under s.116 (1)(b).

13. As this ground does not require mandatory cancellation under s.116 (3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

14. 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’.

15. 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]

16. With its acknowledgment letter of 7 December 2017, the Tribunal invited the applicant to provide material or written arguments. Neither the applicant nor her representative provided documentary evidence or submissions in support of the review application.

17. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 8 January 2019. She declined the Tribunal’s invitation. As the applicant failed to appear at the hearing to provide evidence and present submissions to support the non-cancellation of her visa, the Tribunal has limited evidence before it.

    The purpose of the visa holder’s travel to and stay in Australia

18. 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 purpose of the visa is to enable an employer to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The occupation of Community Worker is one of a limited number of occupations listed by the Minister as an occupation that can form the basis of an approved nomination. The occupation of General Clerk involves clerical work of a general nature and is not on the list of occupations specified by the Minister. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Springwood (Vic) Pty Ltd as Community Worker and not as a General Clerk on a temporary basis. I give significant weight to this consideration.

    The reason for and extent of the breach

19. The applicant’s visa was subject to condition 8107. Based on the investigation conducted by the Department as recorded in the primary decision record I am satisfied that the applicant did not work only in her nominated occupation from July 2016.

20. I am also satisfied that the applicant spent a considerable portion of her time working as a General Clerk which is not the occupation approved in the most recently approved nomination in relation to the applicant.

21. I consider the non-compliance to be significant, as the temporary business entry scheme is predicated upon a visa holder being employed by an approved business sponsor in an approved nominated position.

    Circumstances in which ground of cancellation arose

22. In her response to NOICC of 5 October 2017, the applicant stated that she obeyed her employer’s directions whatever job responsibilities were given to her. She claimed that she has not done anything wrong. While I accept that the applicant may have been directed by her employer to undertake the tasks of a General Clerk, the applicant ought to know that she was allowed to work only in her nominated occupation of a Community Worker.

    Past and present conduct of the visa holder towards the Department

23. There is no evidence before me that the applicant previously breached visa conditions. I am satisfied that she has been co-operative with the Department.

    Degree of hardship that may be caused

24. As the applicant failed to appear at the hearing to provide evidence and present submissions to support the non-cancellation of her visa, the Tribunal has limited evidence before it as to the particular degree of hardship that may be caused to the applicant and her family. The Tribunal is not aware of any particular extenuating or compassionate circumstances affecting the applicant and which outweigh the grounds for cancelling the visa.

25. 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.

26. 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

27. 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.

28. The Tribunal is mindful that s.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 s.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

29. Whilst the applicant’s husband’s and children’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 children.

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

30. 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).  

31. There is no evidence before me 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

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

33. 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

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

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

    Antonio Dronjic
    Member