Pereira Alphonse (Migration)

[2020] AATA 4760

Pereira Alphonse (Migration) [2020] AATA 4760 (30 July 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Mary Sonia Pereira Alphonse Mr Alphonse Charles Pereira

Mr Amit Alphonse
Ms Ananya Sara Alphonse

CASE NUMBER:  1928029

HOME AFFAIRS REFERENCE(S):          BCC2019/2542636

MEMBER:  Andrew McLean Williams

DATE:  30 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 30 July 2020 at 1:06pm.

CATCHWORDS
MIGRATION– cancellation – Temporary Business Entry (Class UC) visa – Subclass 457– breach of the conditions were beyond her control – sponsor ceased operating­­­– best interests of the children ­– had been deliberately misled by employer ­–decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140, 348

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 1 October 2019 made by a delegate of the Minister for Home Affairs to cancel the first-named applicant’s Subclass 457 (Temporary Work (Skilled)) visa, pursuant to s.116 of the Migration Act 1958 (‘the Act’).

1. The delegate cancelled the applicant’s visa on the basis that clause 8107(3)(b) provides that a Subclass 457 visa holder must only work in the approved position in the business of the sponsor (or an associated entity), and that any period during which the visa holder ceases that employment must not exceed 60 consecutive days.

1. The applicant had been employed as a Café/Restaurant Manager by Malt Trading Pty Ltd as her sponsoring employer. Malt Trading was de-registered on 29 May 2018. The Australian Business Number for the sponsor was cancelled on 31 March 2018. This indicates that the applicant ceased working for her sponsor on 31 March 2018. The power of visa cancellation under s.116(1)(b) was therefore exercised by the delegate on 1 October 2019.

1. The issue in the present case is a two-pronged one: whether that ground for cancellation is made out, and if so, whether the visa should in consequence be cancelled.

1. At the outset it is also important to record that, for the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is now before the Tribunal is the decision with respect to the first-named applicant. The other applicants’ visas were all automatically cancelled, in consequence of the visa cancellation for the first-named applicant. In other words the visas held by the applicant’s family members were not cancelled by any decision made by a delegate of the Minister, but instead arose 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 these related-family visa cancellations, the Tribunal now has no review jurisdiction with respect to them.

1. The applicants appeared before the Tribunal by telephone on 18 June 2020 to give evidence and make submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.

1. The applicants were represented in relation to the review by their registered migration agent Mr Mark Northam (MARN 1175508) of Northam Lawyers. Mr Northam also attended the Tribunal hearing by telephone, so as to make submissions on behalf his clients at the conclusion of their evidence. Mr Northam had also provided the Tribunal with detailed written submissions, prior to the hearing conducted on 18 June 2020.

1. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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, 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 then proceed to consider whether the visa should in fact be cancelled, having regard to all of the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

1. 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(3)(b) attached to the applicant’s visa, requiring that she remain consistently employed by her nominating sponsor, Malt Trading, with no cessation in that employment for any period exceeding sixty (60) consecutive days.

1. The applicant, previously a primary school teacher in the Indian State of Kerala, first travelled to Australia on a student visa, arriving on January 2010. She was accompanied at that time by her husband and their two young children. During her student visa period, the applicant completed a Certificate III in commercial cookery, a Diploma of Hospitality, a Diploma in Management and an Advanced Diploma in Management. The applicant then applied for - and obtained - a 457 visa pursuant to an employment sponsorship arrangement with Malt Trading. Pursuant to that arrangement, the applicant commenced as a Café/Restaurant Manager (ANZSCO 141111) employed by Malt Trading in May of 2015. From that point henceforth the applicant became subject to the aforementioned condition 8107(3)(b).

1. The evidence received before the Tribunal reveals that in about May of 2017, Malt Trading advised the applicant that there were financial difficulties within the business, such that she was directed to take a period of unpaid leave, pending other arrangements being made to transition the applicant from her 457 visa and onto a 186 visa.

1. An employer nominated sponsorship (ENS) (Subclass 186) nomination and visa application were lodged by Malt Trading on 28 June 2017. Having received assurances from Malt Trading that her employment remained intact pursuant to the still extant 457 visa, the applicant then took involuntary unpaid leave and was advised by her employer that she would be contacted again, once the 186 nomination had been approved.

1. The applicant and her family then entered into a period of considerable financial hardship - all brought about by the applicant not having any income and the family unit being required to manage on the basis of any income that the applicant’s husband was able to generate as a self-employed commercial cleaner. Commencing in February 2018 the applicant attempted to contact both Malt Trading and the migration agent then acting in relation to the 186 Nomination and its associated visa application. Malt Trading proved to be uncontactable by the applicant, and no further information was given to the applicant by her then migration agent, other than to inform her that a decision in relation to the 186 ENS application was “still pending”.

1. Completely unbeknown to the applicant, her employment had been brought to an end by Malt Trading on 31 March 2018, and Malt Trading was deregistered by ASIC on 29 May 2018. On 17 July 2019 the former migration agent advised the applicant that the 186 ENS application had been refused. By that point in time, and although not being aware of it, the events as described above had already triggered a breach of condition 8107(3)(b).

1. Based on the foregoing, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) does exist. As that ground does not trigger mandatory cancellation under s.116(3), the Tribunal must next proceed to consider whether the visa should be cancelled.

Consideration of discretion

1. There are no matters specified in either the Act or Regulations that must be considered as part of the exercise of this discretion. The Tribunal has had regard to all of 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’.

1. The applicant, together with her husband and their two children, son Amith now 19, and daughter Ananya now 15, have now been in Australia continuously for in excess of ten years. Due to their lack of income brought about by the applicant’s loss of employment with Malt Trading the family were forced during 2019 to relocate to Cooma in New South Wales, where the applicant is now employed as an aged care worker in two local nursing homes. Amith has been educated exclusively within the Australian school system since year 6 and completed his high school studies in Brisbane, in 2019. Amith is now studying a diploma in nursing, and is also working part-time in Cooma, including work as a part-time nursing home employee. Meanwhile, daughter Ananya has been schooled in Australia since year three, and is currently enrolled in year ten studies at St Patrick’s School, Cooma, having relocated from Brisbane to Cooma (and having changed schools in the process) at the completion of year 9 in Brisbane.

1. It is also significant to record that the applicant’s husband Alphonse fairly recently sustained a serious heart attack, in January 2020, and has limited capacity for employment at the present time, due to his convalescence. Alphonse will eventually return to full-time employment as a cleaner when he is medically able to do so.

1. On the basis of the evidence received before the Tribunal, the key factors relevant to the applicant’s overall circumstances and the exercise of the discretion under examination are as follows:

·Alphonse has never had paid employment in India, and has only ever had employment in Australia. His health condition now precludes him from heavy manual work and his needing to undergo further convalescence and rehabilitation in the aftermath of his heart attack significantly limits his capacity for paid employment, at the moment. The progression of his recuperation would likely be impeded, in the event that the family unit were to be required to return to India. The Tribunal is satisfied that the need for Alphonse to continue his medically supervised recovery now qualifies as a compelling circumstance militating against an exercise of the cancellation discretion.

·The family unit as a whole are very substantially dependent on the income earned by the applicant.

·In the event that the application for review is dismissed, three other family members will be subject to automatic visa cancellation pursuant to the operation of s.140(1) of the Act.

·The applicant has not worked in her former occupation as a primary school teacher in the State of Kerala in India since 2009, and is now unable by law to return to that occupation. The maximum age limit for applicants for teaching positions in the State of Kerala is 39 years and the applicant is now older than that.

·Both the applicant and her husband face very uncertain employment prospects and the inevitability of serious financial hardship, in the event that they were to be required to return to India. Comparative cost of living data produced before the Tribunal indicates that the living costs for a family of 4 in Kerala are in the vicinity of (AUD) $1,250 per month. Yet, it is doubtful that the family unit could now generate that amount of income in India.

·Amith and Ananya are currently engaged in full-time studies in Australia, and have been thoroughly enculturated in the Australian education system and curriculum, having undertaken virtually all of their education in Australia, (and in English). Considerable difficulties and hardship would be caused for each of them (yet particularly for Ananya), if they were now to be required to return to India and resume their studies in Kerala in a language other than English. The best interests of the children (particularly Ananya who remains a minor, at an important juncture in her education), militate against an exercise of the cancellation discretion.

·The applicant and her husband were caused to incur significant debt - in the form of a bank loan in India and further credit card debt in Australia - in consequence of the applicant being directed by her former employer Malt Trading to take unpaid leave. In addition, a further debt of $19,834.20 has been incurred with the Canberra Hospital, in consequence of Alphonse’s unforeseen heart attack, in January 2020. The applicant is now making regular monthly repayments on all of the debts. These debts are only able to continue to be serviced on the basis of the Applicant’s employment in Australia.

·There is evidence before the Tribunal that the applicant and her family have quickly integrated themselves into the Cooma local community and are making a worthwhile contribution to community life. Employment references for the applicant produced before the Tribunal underscore the applicant’s value as an aged-care worker, and speak of the considerable difficulties in obtaining qualified staff with relevant experience in regional areas of Australia, such as Cooma.

·The applicant has been consistently compliant with visa conditions relevant to her throughout her time in Australia and has been truthful in all her dealings with the department. The only condition that has been breached is the continuous employment condition (condition 8107(3)(b)) applicable to the applicant’s employment by her nominating sponsor, Malt Trading. The Tribunal now accepts that the breach of that condition arose in circumstances wherein the applicant was unaware of the breach and had been deliberately misled by her employer, such that the breach ought not reasonably be attributed to any deliberate conduct by the applicant.

DECISION

1. On the basis of all of the factors identified above the Tribunal concludes that the correct and preferable decision is one that requires that the cancellation discretion arising under s116(1)(b) not being exercised.

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

Andrew McLean Williams Member