PATEL (Migration)

[2018] AATA 5488

PATEL (Migration) [2018] AATA 5488 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr BIPINKUMAR DAHYABHAI PATEL
Mrs ARATIBEN BIPINKUMAR PATEL
Miss HELLY BIPIN PATEL
Miss BLESY BIPIN PATEL

CASE NUMBER:  1726865

HOME AFFAIRS REFERENCE(S):           BCC2017/1809806

MEMBER:Mr S Norman

DATE:12 November 2018

PLACE OF DECISION:  Sydney

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 12 November 2018 at 4:06pm

CATCHWORDS
MIGRATION – cancellation – Temporary Work (Skilled) visa – Subclass 457 – Customer Service Manager – sponsor went into administration – employment ceased with sponsor – new nomination refused – young family – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198, 348
Migration Regulations 1994, Schedule 8, Condition 8107

CASES
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 31 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the first named applicant had breached condition 8107(3)(b). 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. Only the first named applicant (Mr Bipinkumar Dahyabhan PATEL – hereafter the ‘applicant’), appeared before the Tribunal on 5 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The applicants were represented in relation to the review by their registered migration agent.

5. 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

6. 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) of the Act. 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. s

   Does the ground for cancellation exist?

7. 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. The applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 10 December 2014. The related standard business sponsor (the Australian Institute of Professional Education), had been approved on 27 August 2014. This was for the applicant to be engaged in the nominated occupation of Customer Service Manager (ANZSCO: 149212).

8. By Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa dated 16 October 2017, the applicant was advised it appeared he had not complied with condition 8107 (and in particular condition 8107(3)(b)), which had been imposed on his visa. That condition relevantly stated:

   8107

   …..  
   (3)      If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):
   …..
   (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; …..

9. As noted above, the related standard business sponsor (the Australian Institute of Professional Education) was approved on 27 August 2014. This was for the applicant to be engaged in the nominated occupation of Customer Service Manager. On 17 February 2017, the Department received advice from the sponsor that the applicant had ceased to work with them effective on 6 October 2016; and as noted above, the NOICC was issued 16 October 2017. Therefore, it appeared the applicant had not continued to comply with condition 8107(3)(b); as he had ceased employment for a period exceeding 90 consecutive days. The applicant was then advised there appeared to be a ground for cancelling his visa under s.116(1)(b) of the Act.

10. The Tribunal notes the 457 Temporary Work (Skilled) visa, allowed a holder a period of 90 days after ceasing employment.  The Tribunal also notes the nominated occupation is not one specified in the relevant instrument (referred to at 8107(3A)), as being exempt from having to comply with the requirements of 8107(3)(a)(ii) (see IMMI 13/067). Further, the applicant responded to the Department NOICC,[1] however he did not dispute there were grounds for cancellation.

    [1] Department – from folio 10.

11. When discussed at hearing the applicant said (words to the effect), that on 9 December 2016 (some 64 days after he had ceased employment with his standard business sponsor), a new 457 nomination application was lodged by Tips 4 Me P/L. The nominated occupation was for a Cafe or Restaurant Manager (ANZSCO: 141111). However, that nomination approval application was refused on 3 October 2017.

12. At hearing, the applicant also said he had not found another employer to lodge a new Temporary Work (Skilled) visa. However, he had lodged a Regional Sponsored Migration Scheme (subclass 187) visa on 28 September 2017; though at the hearing, he advised he was not aware of the outcome of that visa application.

13. As noted above, the applicant ceased employment with his standard business sponsor; and from around 4 January 2017, this was 90 consecutive days after he had ceased employment with his standard business sponsor.

14. Based on the evidence before the Tribunal, I am satisfied the applicant had breached condition 8107(3)(b) which had been attached to his visa. Therefore, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) of the Act, 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

15. 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’.

16. Regarding the purpose of the applicant’s travel to and stay in Australia, at hearing he advised he had travelled to Australia on a Student visa in 2007. He told the Tribunal he had ‘attempted’ some courses in Australia. He subsequently obtained a Temporary Work (Skilled) visa (granted on 10 December 2014). This visa was in order to fill a skill shortage and work in Australia for an approved sponsor in a skilled occupation for which he was specifically nominated to work.

17. As noted above, the applicant ceased working with his standard business sponsor on 6 October 2016. A subsequent nomination approval application for a Temporary Work (Skilled) visa was refused on 3 October 2017; and a Regional Sponsored Migration Scheme (subclass 187) visa was lodged on 28 September 2017.

18. Given the applicant is seeking a subclass 187 (permanent) visa, the Tribunal is not satisfied his present intention in remaining in Australia, is for the purposes of filling a skill shortage on a temporary basis.

19. Next, the applicant had breached condition 8107(3)(b) of his subclass 457 Temporary visa when he ceased employment with his standard business sponsor for more than 90 consecutive days. The Tribunal notes the applicant believed this was due to reasons outside his control; and that he claimed he had otherwise been compliant with all other visa conditions. The Tribunal accepts the applicant’s initial sponsor (the Australian Institute of Professional Education) went into liquidation and this was outside the applicant’s control. But at hearing, the applicant conceded he had still not obtained a sponsor for a Temporary Work (Skilled) visa. That means that it has been some two years since the applicant ceased work with his initial sponsor. The Tribunal believes this breach to be significant.

20. Regarding the degree of hardship the applicant (and his family) may suffer if his visa is cancelled, in his response to the NOICC he lodged:[2]

    ·     letters from the principals of schools[3] confirming the enrolment of his children. He said his two school-age daughters (one 8 years and one 14 years) had resided in Australia for most of their life and departing Australia would affect their studies, health and well-being.

    [2] Department – from folio 10.

    [3] Department – from folio 11.

21. The applicant and his wife had resided in Australia for around 12 years. At hearing, the Tribunal noted that country information it had seen indicated that primary/secondary education is free and compulsory in India, and though education may not necessarily be as developed as that which is available in Australia, his children would still be able to attend school in India and progress to tertiary education if they wished[4] (and the applicant had completed the first semester of a Bachelor of Science degree in India prior to ceasing that study and travelling to Australia).

    [4] DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, at [2.21].

22. The Tribunal also understood the applicant’s children in Australia could apply for a Bridging Visa E in order to complete their current term or school year in Australia. As noted by the delegate, it would be open to a Community Status Resolution Officer to consider if it is appropriate to grant the Bridging Visa E to allow sufficient time for the children to finish their current term. The Tribunal also believes they could then continue their education in India, in which country they are citizens.

23. The Tribunal also accepts the education system in India is different to that which exists in Australia (as was claimed). The Tribunal accepts this may give rise to some disruption in the education of the two daughters. However, and as stated above, the Tribunal also believes they could then continue their education in India, in which country they are citizens.  

24. The applicant also said his children would have ‘language problems’ should they return to Gujurat in India (where the applicant and his wife both previously resided). However, and respectfully, as stated at hearing it was apparent that English was not the applicant’s first language, and the Tribunal said it may therefore believe that Gujurati was the language spoken in his home and his children would be able to speak Gujurati on return. The applicant then conceded that his daughters could speak Gujurati but they both wrote in English. After considering all the evidence, the Tribunal proposes to accept the applicant’s daughters may not be proficient in written Gujurati. However, I note that both are relatively young (8 years and 14 years) and with no claimed learning difficulties, and given the Tribunal is satisfied they may speak Gujurati at home, I am satisfied they should be able to learn (written) Gujurati reasonably quickly (given that is their parent’s first language), on return.

25. At hearing, the applicant also said his youngest daughter suffers from asthma and she would not be able to be treated in India. He said he returned to India for two months and his younger daughter had been taken to hospital and medicine from Australia had to be obtained. The Tribunal said it understood his daughters would have access to the same medical assistance that is available to all Indian citizens. The Tribunal also said that while the same medicine that is available in Australia may not be available in India, some asthma medications are available in India. The applicant did not appear to dispute that some asthma medication would be available in India. The Tribunal understood the applicant also said his younger daughter may stammer, but again I am satisfied she would have access to the same medical assistance that all Indian citizens have access to. I also note the applicant said that swimming lessons in Australia assisted his younger daughter’s stammer, and same could be engaged with in India.

26. Though the Tribunal has no corroborating evidence of the wife’s or daughter’s claimed medical conditions, I accept they both suffer from same. However, even a brief search of the internet indicated that treatment for (ie) asthma and caesarean sections (to which the wife was subject – discussed below) were available in Gujurat in India.[5]    

    [5] For instance, see ‘Did anyone know about the best asthma treatment in India?’, QUORA, also identified online were the asthma clinics available in Gujurat. For the wife’s ongoing issues arising from her C-Section see ‘High prevalence of cesarean section births in private sector health facilities- analysis of district level household survey-4 (DLHS-4) of India’, 10 May 2018,

27. The applicant also said that his eldest daughter wishes to become a member of the NSW Police. However, the Tribunal understands that similar policing opportunities would exist in India.

    ·     The applicant said his wife would be disadvantaged and devastated if his visa was cancelled. He said they would lose the life and home they had worked so hard to build in Australia in the last 12 years

28. When discussed at hearing, the applicant said his wife suffered from dementia (though he later agreed that he meant she was fatigued due to an iron deficiency). He also said she had ongoing problems arising from a C-Section that was performed for the birth of her now 8 year old daughter. It was claimed the applicant’s wife also had recently lost her job, though later it was claimed she was ‘forced to stop working’ due to ongoing problems with her C-Section. Be that as it may, the country information stated:

    2.17 Since 2017, the Indian government has turned its attention to increasing health spending, improving the availability and efficiency of services and allowing individual states (which are responsible for health care delivery) more autonomy to implement health programs. In its new National Health Policy 2017, the government set a goal of increasing public health spending to 2.5 per cent by 2025. More recently, the government launched a revamped national insurance scheme, Ayushman Bharat, and a program to improve the primary health care system, as part of a commitment to move India towards universal health care. The scheme incorporates state-run schemes and an existing national scheme, and aims to provide coverage of up to USD 10,000 for over 100 million lower income families.[6]

    [6] DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018.

29. After noting the health care system in India may not be as developed as in Australia, the Tribunal again said it may be (and now is) satisfied the applicant’s wife would have access to all medical assistance that is available to Indian citizens.  

30. As noted above, even a brief search of the internet indicated that treatment for asthma and caesarean sections were available in Gujurat in India;[7] and the Tribunal presumes that treatment for iron deficiency would also be readily available.  

    ·     the applicant said he had lived in Australia with his family since 2006/7 and had established strong community ties

    [7] For instance, see ‘Did anyone know about the best asthma treatment in India?’, QUORA, also identified online were the asthma clinics available in Gujurat. For the wife’s ongoing issues arising from her C-Section see ‘High prevalence of cesarean section births in private sector health facilities- analysis of district level household survey-4 (DLHS-4) of India’, 10 May 2018,

31. When discussed at hearing, the applicant said (words to the effect) his wife had ‘mingled well’ in Australia. When then asked what the applicant and his family had done in Australia other than work and study, it was claimed his daughters had learnt to swim and he and his wife attended a named temple to perform charitable work every Saturday. When questioned further, the applicant said he and his wife may attend once every few months.

32. The applicant also said he would not be able to find work in India. At hearing, he said that after withdrawing from his studies in India and Australia, he worked as a customer service manager in a service station in Brisbane. He also said his brother in Gujurat worked as a quality control officer in a pharmaceutical company. Though disputed by the applicant, the Tribunal is satisfied he could find work commensurate with his skills in India (and the Tribunal notes that India is one of the world’s fastest growing large economies[8]).

    ·     the applicant also said departing Australia would impact him and his family financially and emotionally.

    [8] DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, at [2.13].

33. When discussed at hearing, the applicant materially repeated what was stated elsewhere herein. However, the Tribunal notes the applicant was only granted a temporary visa for the purpose of being able to temporarily work in Australia for an approved sponsor. The Tribunal accepts the applicant and his wife and elder daughter have resided in Australia for around 12 years on temporary visas. I also accept that returning to India may result in some disruption to the applicant and his family.

34. If the applicant’s visa is cancelled, the Tribunal accepts that he and his family will be subject to some financial and emotional hardship. I also accept that if the visa is cancelled they may be subject to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I do not accept they would be subject to indefinite detention. I also believe they could temporarily retain their Bridging visas in order to remain in the community to finalise their affairs prior to departing.

35. Next, the Tribunal notes the applicant’s visa was cancelled due to him being in breach of condition 8107(3)(b). The applicant said his former standard business sponsor went into administration without notifying him and left him without a job. He also said that a new nomination was lodged on 9 December, being within 90 days of in ceasing employment. However this was refused on 3 October 2017. The applicant had also lodged an application for a subclass 187 visa. Be that as of may, the applicant chose to remain in Australia in breach of the aforementioned visa condition (being 8107(3)(b)).

36. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal.

37. Next, if the applicant’s visa is cancelled, the dependent family visas of his wife and two daughters would also be cancelled. The cancellation of his family members’ visas would be automatic and consequential of the cancellation of the applicant’s visa under s.140 of the Act. However, this is an intended consequence of the cancellation of a principal applicant’s visa.

1. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia. However, as the applicant lodged his subclass 187 visa on 28 September 2017 and his Temporary Work (Skilled) visa was cancelled on 31 October 2017, affirming the cancellation of the Temporary Work (Skilled) visa should not materially impact the subclass 187 visa application, which can be considered while he is outside Australia. The applicant may also be able to apply for a Bridging visa to remain in Australia while his subclass 187 visa application is being processed.

2. The applicant would also be subject to PIC 4013; meaning (generally) that he cannot be granted a temporary visa for three years from the date of cancellation of his visa. However and again, the applicant lodged the subclass 187 (permanent) visa application prior to the Department cancelling his Temporary Work (Skilled) visa and a decision to affirm the cancellation of the Temporary Work (Skilled) visa should not materially impact the subclass 187 visa application.

3. The Tribunal also understands the subclass 187 visa application (which included his family) does not require him to be in Australia at the time of decision. Therefore if the subclass 457 visa is cancelled and he does depart Australia, this would not prevent him from being granted the alternate visa (being the abovementioned subclass 187). Further, if the applicant does depart Australia with his family he would not be returning to a third country, but returning to his country of citizenship.

4. Next, the Tribunal notes the Convention on the Rights of the Child (CROC), has been referred to in the PAMS3, as requiring any relationship that would affect the best interests of the child to be considered; children are considered to be those person under 18 years old and within Australian territory; and that the interests of children should be taken into account under the family unity principles. The Tribunal also notes that the International Covenant on Civil and Political Rights provides that “the family is the natural and fundamental group unit of society and is entitled to protection by society in the state”.

5. That being said, the evidence includes that the applicant’s two dependent children, both live with their parents (being the applicant and his wife). Therefore if the applicant’s visa is cancelled, and the family unit members’ visas are cancelled, the whole family may be required to depart Australia as a unit, and family separation will not arise. The Tribunal notes that it has discussed the children’s ongoing education above. There is also no evidence before the Tribunal that any of Australia’s other international obligations would or may be breached if the applicant’s visa is cancelled.  

6. After having considered the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

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

   Mr S Norman
   Member