Rajwinder Kaur (Migration)

[2018] AATA 4178

Rajwinder Kaur (Migration) [2018] AATA 4178 (10 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajwinder Kaur Rajwinder Kaur
Mr SARABJIT SINGH SARABJIT SINGH
Master HARBAAZ SINGH HARBAAZ SINGH

CASE NUMBER:  1716415

HOME AFFAIRS REFERENCE(S):           BCC2017/1329093

MEMBER:Karen McNamara

DATE:10 September 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 10 September 2018 at 1:47pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – sponsor’s approval as a standard business sponsor – sponsor’s cancellation – maternity leave – restaurant manager – purpose of temporary visa – desire to secure permanent residence – not commenced work since leave – applicant’s medical evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140M
Migration Regulations 1994 (Cth), r 2.43


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 24 July 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 applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was granted a Subclass 457 visa on 3 November 2014 having been sponsored by VIR Pty Ltd. The delegate records that the Department’s records indicate that the Department cancelled the sponsor’s approval as a standard business sponsor on 7 April 2017 under s.140M(1)(a). On 7 July 2017 the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant responded on the 21 July 2017 and the delegate states she took the submission into account, however cancelled the visa on the 24 July 2017, under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applied to the applicant, that is, the ground in r.2.43(1) (I)(iv) that the sponsor has been cancelled or barred under section 140M of the Act.

3. For the purposes of the Tribunal’s jurisdiction, 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) of the second and third named applicants’ visas, the Tribunal has no jurisdiction with respect to them.

4. The issue in the present case is whether that ground for cancellation is made out, and if so whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 21 August 2018 to give evidence and present arguments. The Tribunal also heard evidence from the applicant’s husband Mr Sarabjit Singh.

6. 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

7. 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)(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

8. 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 in r.2.43(1)(I)(iv), that is the sponsor has been cancelled or barred under section 140M of the Act is relevant.

9. In this case the delegate’s decision record, provided to the Tribunal by the applicant, confirms that the Department cancelled the sponsor’s approval as a standard business sponsor on 7 April 2017 under s.140M(1)(a).

10. The Tribunal therefore finds that a prescribed ground for cancelling the visa applies to the applicant.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

12. 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’.

13. The applicant was sponsored by VIR Pty Ltd to work in the occupation Café or Restaurant Manager. The applicant told the Tribunal that VIR Pty Ltd operated two Indian Restaurants at Blacktown, NSW. She commenced working at the Chilli Pepper Restaurant and when that closed she transferred to the Indian Tandoori Restaurant. In April 2017, the Department decided to take action against the sponsor under s.140M of the Act. The Department cancelled the sponsor’s approval as a standard business sponsor on 7 April 2017 under s.140M(1)(a). On 7 July 2017 the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant responded on the 21 July 2017 and the delegate states they took the submission into account, however cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applied to the applicant, that is, the ground in r.2.43(1) (I)(iv) that the sponsor has been cancelled or barred under section 140M of the Act.

14. At hearing the applicant provided the following oral evidence. The applicant came to Australia on a student visa in 2008 as she wanted to settle in Australia. She completed courses in commercial cookery and an E course in management. She commenced working with VIR Pty Ltd as a Restaurant Manager in November 2014 and commenced maternity leave on 13 November 2016. The applicant has not worked for the sponsor since she commenced maternity leave in November 2016. The applicant told the Tribunal that she has not worked in Australia since taking maternity leave in 2016.

15. The applicant confirmed she is currently holding a Bridging visa E. She has not applied for any other visas as she is pregnant with her second child.

16. The Tribunal asked the applicant about her current purpose for remaining in Australia. She told the Tribunal she wants to stay in Australia permanently. She came to Australia in 2008 and has returned to India on two occasions in 2011 and 2014. The Tribunal asked why she has remained in Australia and she told the Tribunal because she has been here for ten years and wants to settle here. The Tribunal put to the applicant that this is not the purpose of a subclass 457 Visa, which is a temporary visa program. The applicant acknowledged this.

17. The Tribunal noted that the delegate’s decision record dated 24 July 2017 indicated that over three months have lapsed since the visa holder’s nominated employer had their sponsorship cancelled and to date the visa holder does not hold a new approved nomination for the UC 457 visa.  The Tribunal raised this with the applicant. The applicant advised that she had not been able to find new sponsorship and has not worked since the birth of her son as she needs to look after him. She is now pregnant with her second child and due to give birth on 15 September 2018.

18. The Tribunal asked the applicant about any hardship she might suffer as a consequence of a visa cancellation. She indicated yes but did not elaborate other than telling the Tribunal that her husband is currently working as a driver and if they return to India they will work hard and try and settle there. The Tribunal notes the applicant’s evidence that she has not worked since taking maternity leave in November 2016.

19. The Tribunal discussed with the applicant the circumstances in which the ground for cancellation arose.  She claimed that she did not know that the business was being monitored by the Department.

20. The applicant indicated that the Department is not concerned about her conduct. This is consistent with the delegates decision record.  

21. There are two consequential cancellations, the applicant’s dependants Mr Sarabjit Singh and

    
    

    Master Harbaaz Singh. When asked if the applicant had any concerns about returning to India, she indicated she wanted a chance to remain in Australia. The applicant told the Tribunal that she has spent ten years in Australia and wants to settle here. She told the Tribunal that the sponsor had told her that he would get the papers for her to become a permanent resident and that her plans were to start her own business. The Tribunal told the applicant that the purpose of the 457 visa program is to fill a skill shortage on a temporary basis in a position which cannot be filled by the Australian workforce. Its purpose is not to remain in employment in Australia on a permanent basis.

22. The Tribunal heard evidence from the applicant’s husband, Mr Sarabjit Singh, who told the Tribunal that when his wife was pregnant with their son she was on maternity leave and wasn’t aware of the sponsorship being cancelled and that they have been in Australia for ten years. He told the Tribunal that they have a good record with Immigration and that they want to stay here for the future of their children. The Tribunal also told Mr Singh the purpose of the 457 visa program was not permanent residency.

23. Regarding any consequential cancellations, the Tribunal noted that the visas of her husband and child may be cancelled. The Tribunal also explained that it does not have jurisdiction to review consequential cancellation decisions.

24. The Tribunal asked the applicant if there was any other relevant matter she wished for it to take into account. She indicated that her visa was cancelled because of another person, not because of anything that she had done.

    Assessment of the Evidence

25. In exercising its discretion, the Tribunal has first considered the applicant’s purpose for remaining in Australia. The applicant made it clear, supported by her husband’s evidence that she wishes to stay in Australia permanently. The Tribunal explained to the applicant and her husband that this is not the purpose of a Subclass 457 visa.  There is no evidence before the Tribunal to suggest that the applicant is currently working in skilled employment.  The Tribunal is satisfied that the applicant ceased working with her sponsor when she commenced maternity leave in November 2016 and has not worked since.

26. The Tribunal takes into account the purpose of the Subclass 457 visa program; to fill a temporary vacancy in skilled employment for an approved sponsor.  The Tribunal is not satisfied that the applicant is currently employed in those circumstances. Evidence before the Tribunal indicates the applicant has not worked since commencing maternity leave in November 2016. The Tribunal gives these factors weight in favour of cancelling the visa.

27. The Tribunal has considered the applicant’s compliance with visa conditions. The applicant was granted her subclass 457 visa on 3 November 2014 to work for an approved standard business sponsor, VIR Pty Ltd in the occupation Café or Restaurant Manager. The stay period of her visa was until 3 November 2018.  She has not worked for the sponsor since commencing maternity leave in November 2016. While the applicant’s visa was not cancelled by the delegate because of breach of conditions, the Tribunal notes it has now been approximately 21 months since the applicant has worked for an approved sponsor in a skilled occupation.

28. The applicant has indicated that she will suffer hardship if the visa is cancelled. However the Tribunal notes that the subclass 457 visa is a temporary visa granted to fill a skill shortage on a temporary basis in a position which cannot be filled by the Australian workforce. The applicant has not secured sponsored employment in a skilled occupation since she commenced maternity leave in November 2016. The Tribunal is not satisfied, despite the applicant’s stated desire, that permanent residence and employment is a given outcome of holding a Subclass 457 visa.  The Tribunal accepts that the applicant might suffer some financial hardship if the visa is cancelled but is not satisfied that it will be serious, given that evidence before the Tribunal indicates the applicant was on maternity leave from November 2016 to April 2017 and has not worked since.

29. The Tribunal accepts that the ground for cancellation arose because of circumstances beyond the applicant’s control.  It notes from the delegate’s decision record that the applicant has been cooperative with the Department and no concerns have been recorded in relation to her conduct.  The Tribunal notes that the applicant currently holds a Bridging visa E and so she will not be detained if the visa is cancelled, so long as she departs Australia before that visa expires. On the basis of the evidence before it he Tribunal is satisfied there are no concerns regarding her conduct.

30. The Tribunal notes medical evidence before it, that the applicant is due to give birth on 15 September 2018 and appreciates this may impact on the timing of the applicant’s departure from Australia.  There is no evidence to indicate that Australia’s international obligations would or may be breached as a result of the cancellation.

31. Overall, having considered all the information before it, the Tribunal considers it significant that the applicant is not currently working in a skilled occupation as the subject of an approved nomination for a standard business sponsor. The applicant’s evidence indicates that she has not worked in a skilled occupation as the subject of an approved nomination for approximately 21 months.  The Tribunal gives this significant weight in favour of cancelling the visa.  The Tribunal also notes that the applicant has expressed a strong desire to remain in Australia. As discussed with the applicant at the hearing securing permanent residence is not the purpose of the Subclass 457 visa. While the applicant has indicated she will suffer financial hardship if the visa is cancelled the applicant did not elaborate or provide compelling reasons as to the degree of hardship. The Tribunal therefore is of the view the applicant’s desire to secure permanent residence in Australia is not consistent with a visa program designed to temporarily fill a skill shortage in Australia.

32. The Tribunal accepts that the circumstances in which the ground for cancellation arose that being her sponsor’s cancellation, were beyond the applicant’s control, however it notes that the applicant was the Restaurant Manager but was not aware that there were problems in the management of the business and finds this somewhat concerning that the applicant knew nothing of the Department’s monitoring of the business. The Tribunal takes into account that the Department has not been concerned about the applicant’s conduct and it has not recorded breaches of visa conditions.

33. Overall the Tribunal is of the view it is appropriate in this case to cancel the applicant’s Subclass 457 visa.

34. Considering the circumstances as a whole, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

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

    Karen McNamara
    Member