Puri (Migration)

[2019] AATA 1489

Puri (Migration) [2019] AATA 1489 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Jasvir Kaur Puri

CASE NUMBER:  1712956

HOME AFFAIRS REFERENCE(S):           BCC2016/2939954

MEMBER:Stavros Georgiadis

DATE:31 January 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 31 January 2019 at 5:50pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – sponsorship by business – cancellation of sponsorship – occupation taken off 457 visa list – cancellation of sponsor’s approval outside of applicant’s control – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140M
Migration Regulations 1994 (Cth), r 2.43, condition 8107(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 June 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)(g) on the basis that the Minister had cancelled the approval of the sponsor, City Hairstylist Pty Ltd, as a standard business sponsor on 31 August 2016 and accordingly, a prescribed ground for cancellation exists under Regulation 2.43(1)(l)(iv). 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. The visa applicant (the applicant) appeared before the Tribunal on 31 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband Mr Amardeep Kumar.  

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. 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)(g). 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) - prescribed ground

7. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground under r.2.43(1)(l)(iv) is relevant.

8. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) by email on 17 January 2017 inviting her to respond in writing. The applicant responded to the NOICC on 24 January 2017 and provided reasons why her visa should not be cancelled.

9. Departmental records indicate that a prescribed ground for cancelling a visa applies to the applicant’s case, specifically Regulation 2.43(1)(l)(iv) which states (relevantly in bold):

   Regulation 2.43
   …
   (l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a
   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:

   (i) the sponsor has not complied, or is not complying, with the undertaking given by the
   business sponsor in accordance with approved form 1067, 1196 or 1196 (Internet); or
   (ii) the sponsor has given false or misleading information to Immigration or the Tribunal; or
   (iii) the sponsor has failed to satisfy a sponsorship obligation; or
   (iv) the sponsor has been cancelled or barred under section 140M of the Act; or
   (v) the labour agreement has been terminated, has been suspended or has ceased;

10. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa is City Hairstylist Pty Ltd (the sponsor) whose nomination was approved on 23 September 2015. On 31 August 2016, a delegate of the Minister made the following decision in respect of the sponsor:

    ●  to cancel the approval of the sponsor as a standard business sponsor [under section 140M(1)(a) of the Act];

    ●  to bar the sponsor for four years from making future applications for approval as a standard business sponsor [under section 140M(1)(d) of the Act].

11. As the sponsor has been barred and cancelled under section 140M of the Act, the prescribed ground for cancellation defined at Regulation 2.43(1)(l)(iv) applies to the applicant as holder of a Subclass 457 visa.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) of the Act exists relating to a prescribed ground under r.2.43(1)(l)(iv). 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

13. 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’.

14. The applicant provided written submissions (and attachments) in support of the application made under cover letter of 25 January 2019 as follows, which the Tribunal has considered:

    ... “I am writing to request that the AAT (Refugee and Migration Division) consider all the circumstances of my case and using your discretionary power to decide that the 457 visa should not be cancelled and, consequently, that the corresponding bridging visa A be revoked.

    Non-compliance with of the visa condition

    I wish to confirm that as stated in the visa cancellation decision, the applicant’s original sponsor’s sponsorship has been cancelled.

    As argued before this was due to no fault or any other involvement of the applicant.

    Her visa cancellation was the result of the circumstances beyond the applicant’s control.

    We accept, however, that regardless of that, the applicant has been without a valid SBS sponsorship and nomination for a considerable period of time. That can be seen as the non-compliance of the visa condition 8107(3)(b).

    There is a number of compelling and compassionate circumstances which we want to present.

    The applicant subsequently found a new sponsor and applied for a nomination with them.

    Due to the most unexpected and unfortunate circumstances – the occupation of the hairdresser was going to be taken off the list of the eligible 457 occupations, the criteria have changed, the 457 visa was replaced by a new visa (and a new corresponding sponsorship and nomination regime), there was uncertainty about the training obligations and the training levy (SAF) finally and belatedly introduced - the nomination was refused and no new nomination secured.

    However, the applicant has been lawfully working with the new sponsor (Style & Smile Hair Beauty Pty Ltd) once the new bridging visa allowed; having earlier lodged an RSMS application.

    As a result of the 457 visa cancellation her bridging visa A was, however, also cancelled but she was subsequently granted a bridging visa E with work rights and she has been working lawfully for the new sponsor since.

    The RSMS visa has not finally decided yet but in the meantime, she has also applied for a new temporary visa nomination – see evidence attached. That nomination when approved will entitle her to continue to work on a 457 visa if that visa (cancelled by the Department) is now revoked by the Tribunal.

    The applicant and her work are of a great benefit to the sponsor, the community and Australia in general. The sponsor is extremely happy with the applicant. She is the only fully qualified full-time hairdresser in the salon and for that reason the sponsor has been able to employ an Australian apprentice on a formal apprenticeship contract (attached) whom the applicant is training. This is a tangible benefit for the business but most importantly also for Australia’ training initiatives whereby the skills of a temporary entrant (the applicant) are being used to train the Australian staff – see org. chart attached.

    We accept the fact that it has taken quite a while and we are still waiting for the nomination decision. It has taken quite some time because the original SBS sponsorship of Style & Smile hair Beauty Pty Ltd expired and a new SBS was required.

    The new SBS sponsorship for Style & Smile Hair Beauty Pty Ltd has already been approved (see attached) and now we are waiting for the nomination (for the Temporary Skill Shortage Visa) to be finalised.

    Please consider a limited extent of the applicant’s possible non-compliance with the visa condition.

    If the Tribunal considers that the applicant has indeed breached the visa condition please use your discretion and decide that there are valid reasons for the visa not to be cancelled; and, consequently, the bridging visa A to be revoked.

    The situation resulting from the cancellation of the 457 visa has caused the applicant and her family considerable hardship. She and her family had no option but to apply for a bridging visa E, as unlawful aliens, with strict restrictive conditions.

    The current bridging visa E does not allow the applicants to travel. Any time there may be an emergency situation with a close relative becoming seriously ill or even dying. This is a fact of life. It would be heart-breaking for the applicants and her family if they could not travel in those circumstances perhaps to say the last “good-bye” to their loved one.

    The applicants have applied for a permanent visa (RSMS) but the outcome is still pending. They are in a very stressful situation of not knowing what will happen to them with limited options and visa restrictions.

    I would also like to add that the applicants have had an exemplary immigration history, with no overstaying or breaching conditions, except for this case which is disputable.

    The applicant has also been very cooperative with the Immigration Department which was explicitly stated by the case officer in the cancellation decision letter.

    If not fully convinced by the presented arguments, may I suggest that the Member (the AAT) considers delaying the decision until the pending nomination for the Temporary Skill Shortage Visa is finalised.” ...

15. Further written submissions (with attachments) were made by the applicant under cover letter of 30 January 2019  as follows, which the Tribunal has also taken into consideration:  

    ... “

    1. On 31 August 201[6] a representative of the Immigration Department (Suzy Vogiatzis) wrote to the applicant that the sponsor’s sponsorship had been cancelled – attached (p.1 of att.1).
    2. The applicant immediately, the following day, responded to that Immigration officer asking specifically whether the sponsorship cancellation would affect her 457 visa and whether she should stop working for that sponsor – attached (p.2 of att.1).
    3. The same day the officer replied: “Please be advised the cancellation of your sponsors agreement does not affect your 457 visa” (see attached – p.3 of att.1).
    4. The following day (2/09/2016) the case officer added further that she could work for the sponsor, and only for the sponsor (even though that business had the sponsorship already cancelled).
    5. The applicant, consequently, continued to work for the sponsor until mid-November 2017 (see the payslip – att.2) when the business closed.
    6. She immediately sought another sponsor and, as she was highly qualified and experienced, she secured an undertaking of a new nomination with a new sponsor.
    7. A nomination application must meet a number of strict criteria (including labour market testing, recruitment etc) and the process takes some time. Nevertheless, on 16 January 2017 the new nominator lodged the nomination application for the applicant.
    8. That nomination was refused on 2 October 2017, so after 8.5 months.
    9. She was expected (condition 8107) not to cease employment for more than 90 days. That was clearly beyond the applicant’s control; waiting for over 8 months would have to clash with the 90 days condition 8107 stipulation. This stipulation is not a mandatory cancellation provision and is subject to discretionary consideration.
    10. Please also note that the 457 visa was cancelled on 8 June 2017 so about 4 months before the date (2 October 2017) of the negative decision on the pending new nomination application.
    11. Decisions on both the new (482) nomination and RSMS visa are still pending.
    12. The applicant (and her family) have suffered considerable hardship because of the visa cancellation and cancellation of their bridging visas (she had earlier applied for an RSMS nomination and visa with the same new sponsor).
    13. Her both parents passed away at the end of 2017, 2 weeks between each other (Mum on 18/12/2017, and Dad on 31/12/2017) – att.3, when she and her family had her visa already cancelled. That was a terrible blow, one after the other, for the applicant; she could not travel to the funeral ceremonies. She is the youngest of her siblings, she was very attached to her parents and felt very depressed that she was not present at home at that time.
    14. In case the applicant needs to depart Australia for any serious and urgent reasons her current bridging visa E does not allow her to return. That is detrimental to her (and her family) and the nominator that she is working providing valuable highly skilled service (for the business and an Australian apprentice working there; she is the only full-timer).” ...

16. In addition to the above submissions, the Tribunal has also taken into account several relevant factors listed in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ as discussed below:

    The purpose of the applicant’s travel to, and stay in, Australia.

17. The purpose of the applicant’s travel and stay in Australia is to work as a Hairdresser (ANZSCO 391111). From the discussion below, it is evident to the Tribunal that the applicant has at all times maintained any work undertaken to this nominated occupation - for which she has specific training and Australian qualifications to Advanced Diploma level.

18. The applicant was granted a Temporary Working Subclass 457 visa to work in the nominated occupation for an approved sponsor, City Hairstylist Pty Ltd. Information before the Department indicates that the Standard Business Sponsorship (SBS) for City Hairstylist Pty Ltd was cancelled on 31 August 2016. Therefore, the applicant ceased to have a valid sponsor whilst a holder of the 457 visa since that date.

19. The Tribunal finds that on 16 January 2017, the applicant lodged a new nomination application with another sponsor employer, STYLE & SMILE HAIR BEAUTY PTY LTD. At the time of the delegate’s decision, that application for nomination in the occupation of Hairdresser remained pending.

20. The Tribunal notes that the applicant held the 457 visa without any approved sponsor for over 9 months at the time of the delegate’s decision. The Tribunal accepts that the applicant attempted to secure a new nomination after SBS cancellation of her previous sponsor, and places weight and accepts the submission, that she was provided with incorrect advice by the Department in an email dated 1 September 2016 that “the cancellation of your sponsor’s agreement does not affect your 457 visa.”  Further the evidence is that the following day, the case officer informed that the applicant could work for the sponsor, and only for the sponsor (even though that business had its SBS sponsorship already cancelled). The Tribunal accepts the oral evidence and submissions that the applicant would have otherwise searched to find another approved sponsor for the nominated occupation within the requisite 90 days (for the purposes of satisfying visa Condition 8107) instead of staying on with the original sponsor until she ceased working there in November 2016.  The Tribunal accepts that the applicant (reasonably) relied on the information provided to her by the Department.

21. The Tribunal notes also that on 20 January 2017 the applicant lodged an application for a Subclass 187 permanent residency visa under the Regional Skilled Migration Program Scheme (RSMS). The employer who nominated the applicant for this program is the same nominator as above, STYLE & SMILE HAIR BEAUTY PTY LTD, with whom the applicant continues to work presently (with approved working rights).  The Tribunal places weight on this factor in circumstances that the applicant is seeking sponsorship for the same nominated occupation of Hairdresser, albeit now for potentially a permanent stay.

22. The Tribunal has taken into consideration that fact that the applicant was not represented by an approved Migration Agent until January 2019 pending her up-coming appearance before the Tribunal.  On 18 January 2019 the applicant lodged a new application for a (temporary) Subclass 482 visa which is consistent with the overall purpose of working in the nominated occupation of Hairdresser with an approved SBS sponsor.

    The extent of the applicant’s compliance with any conditions subject to which her visa was granted.

23. Regulation 2.43(1)(l)(iv) requires that a 457 visa holder has a valid sponsor who has not been cancelled or barred under section 140M of the Act. The Tribunal notes the delegate’s comments that the applicant’s sponsor had its SBS cancelled for over 9 months by the time of the delegate’s decision and that the applicant had been residing in Australia on a 457 visa without any approved sponsor and ability to ‘legally work this entire period.’  However, the Tribunal notes that circumstances have since changed in that the applicant had pursued and succeeded in having work rights approved as part of her Bridging Visa E pending the outcome of this review.  The Tribunal places some weight in favour of the applicant in that she has attempted to mitigate non-compliance given the circumstances surrounding the misinformation discussed above in respect of visa Condition 8107.

24. The Tribunal has no other information before it to suggest non-compliance with any other visa conditions subject to which the applicant’s visa was granted, and the Tribunal also gives this some weight in support of the application.

25. The degree of hardship that may be caused to the applicant or her family members. Whether there are persons in Australia whose visas would, or may, consequently be cancelled under s140.

26. The applicant’s response to the NOICC sets out that cancellation of her 457 visa would create ‘serious and undeserved hardship’ for her and her family and it would also impact on her immigration status and immigration history.  The applicant’s additional submissions refer to potential hardship that would be caused to others including her current employer and an employed apprentice (an Australian citizen) whom the applicant is involved in training with her current sponsor. This is supported by the Organisational Chart provided with the written submissions that shows particulars of the employed apprentice.

27. The Tribunal has also considered the Convention on the Rights of the Child (CROC) and whether cancellation of the applicant’s visa would not be in the best interests of the child dependant. The applicant’s husband, Mr Amandeep Kumar and their son were granted a dependant 457 visa, solely on the basis of being members of the family unit of the primary visa applicant. The cancellation of the applicant’s visa will therefore, result in the consequential visa cancellation of the applicant’s dependant son, GOSWAMI, Karanvir (01/11/2010,M) and her husband.  However, the Tribunal notes that the cancellation would not result in the separation of the applicant from her son or detention.

1. The Tribunal places weight on the particular circumstances of this case that the applicant’s son, aged 8 years, was born in Australia, is continuing his schooling here with associated friendships, is accustomed to the Australian way and standard of life and would be largely unfamiliar with the customary way of life in Punjab, India regarding any potential return there (although he has visited on a number of prior occasions with his parents). The Tribunal considers this will place significant hardship on the child and is therefore, not in the best interests of the child, an Australian citizen.

2. The Tribunal also places weight on the fact that in December 2018 the applicant’s parents both became deceased (within days of each other) in India and she has therefore, lost a level of emotional and other support otherwise available to her regarding any potential return there, were this application to be unsuccessful. The applicant’s husband has also been regularly working as a taxi driver and has settled and spent a number of years in Australia together with his family as members of the same family unit as the 457 visa holder. Consequential loss of this work and financial resource to the family would result in further hardship should the visa be cancelled.

3. The Tribunal notes that as there is a pending 187 visa application in place, the applicant and her husband are eligible for a Bridging Visa E (with working rights) to allow them to remain lawfully in Australia to await the outcome of the present application. The Tribunal notes the applicant is now receiving advice and assistance from a Registered Migration Agent.  The Tribunal considers that the cost and effort in making these further applications would result in a substantial degree of hardship given their pending status under consideration that may be caused to the applicant and her family should the visa be cancelled.  

   The circumstances in which the ground for cancellation arose.

4. The circumstances of this case have largely been considered already in the discussion set out in the preceding paragraphs.  However, the Tribunal has also considered the additional factor that in 2017 the Australian Government announced changes to the 457 visa program effective from 19 April 2017, rendering the occupation of Hairdresser (ANSCO 391111) not eligible for sponsorship under the 457 program. The Tribunal notes the delegate’s view that as such, the new nomination application is ‘likely to be refused and the employer has been notified of this.’ Based on this information, the delegate concluded that “it is likely that Jasvir Kaur PURI will not be approved a new 457 nomination in the foreseeable future.”

5. However, the ground has since shifted again under a new regime. Under the new arrangements for a 482 visa, the occupation of Hairdresser (ANSCO 391111) again remains eligible for sponsorship under the program and therefore, the application is not without merit.  In circumstances where there is a pending application for a Subclass 482 visa regarding the nominated occupation of Hairdresser (together with the fact that the applicant remains sponsored by the same SBS approved sponsor with whom she is presently working and has a pending Subclass 187 visa application for permanent stay) the Tribunal places weight on this combination of circumstances as some support for not cancelling the visa.

   Consideration of circumstances beyond  the applicant’s control.

6. The applicant submits that the cancellation of the sponsorship had nothing to do with her actions. The Tribunal accepts the submission that cancellation of the SBS approval of the sponsor had been solely related to the actions of that sponsor and had been beyond the applicant’s control. The Tribunal accepts (as did the delegate) that the cancellation of the sponsorship is unrelated to the applicant’s conduct and therefore, was outside of her control.  The Tribunal places some weight on this in support of a favourable outcome for the applicant, against the background of the aforementioned other pending applications before the Department.

   The applicant’s past and present behaviour towards the Department.

7. The evidence is that the applicant has presented in a co-operative and appropriate manner towards the Department (and also to the tribunal) and otherwise has complied with Immigration law and other relevant laws and regulations. The Tribunal gives some weight to this factor in favour of the applicant.

   Whether Australia has international obligations that would, or may be, breached as a result of cancelling the applicant’s visa.

8. At the hearing, the applicant and her husband told the Tribunal that there had been no difficulties in returning to India when they had travelled there on previous occasions (together with their son) to visit family members - parents and siblings.

9. There is no evidence before the Tribunal of any impediment in returning to the applicant’s home area of India. Accordingly, the Tribunal is satisfied there is no other information before the Department which indicates that cancellation would result in any breach of Australia’s international obligations - including non-refoulement (regarding protection or complimentary protection grounds) or regarding the best interests of the child (discussed earlier) as a primary consideration.

10. Any other relevant factors.

    The Tribunal has taken into consideration all relevant factors in relation to the cancellation action including the written and oral submissions made on behalf of the applicant discussed above.

11. Considering all the circumstances as a whole, the Tribunal concludes on balance, that the applicant’s Subclass 457 visa should not be cancelled.

    DECISION

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

    Stavros Georgiadis
    Member