Rani (Migration)

[2019] AATA 5728

Rani (Migration) [2019] AATA 5728 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Seema Rani

CASE NUMBER:  1902640

DIBP REFERENCE(S):  BCC2018/4349200

MEMBER:K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:         2 August 2019 at 3:42 pm (QLD time)

DATE OF WRITTEN RECORD:                23 August 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Developer Programmer – ceased employment with sponsor for more than 60 days – medical condition – returned to India for treatment – not in sponsored employment for 16 months – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 January 2019 to cancel the applicant’s Subclass 457 Temporary Business Entry (Class UC) visa under the Migration Act 1958 (‘the Act’).

2. At the hearing on 2 August 2019, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is Ms Seema Rani (‘the applicant’). The Tribunal reference is 1902640. This is an application for review of a decision dated 24 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (‘the Act’).

4. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant did not comply with condition 8107(3)(b) of her Subclass 457 visa, because she ceased work in the nominated occupation in her most recently approved nomination with Resource Corner Pty Ltd for a period exceeding 60 days.

5. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.  The applicant was granted her most recent Subclass 457 (Temporary Work (Skilled)) visa on 18 September in 2017.  The standard business sponsor who nominated her in the most recently approved nomination was Resource Corner Pty Ltd (now referred to as ‘the sponsor’).

6. According to the delegate’s visa cancellation decision, the sponsor advised the Department that the applicant ceased employment with them effective from 11 March 2018.

7. On 4 January 2019, the applicant was sent a Notice of Intention to Consider Cancellation of her visa on the basis that she failed to comply with condition 8107 of her Subclass 457 (Temporary Work (Skilled)) visa, by ceasing work with the sponsor on 11 March 2018 and not resuming work with the sponsor or an associated entity within 60 days of that time. The applicant responded to the Notice of Intention to Consider Cancellation of her visa on 18 January 2019.  She contended that she suffered poor health in late 2017 concerning a knee complaint and stress, which required her to return to India for treatment between 8 and 20 December in 2017.

8. The applicant advised that she was granted unpaid leave during that time until she returned from India and she indicated that her illness continued for some time. She indicated also that her husband had not been granted a secondary applicant visa, nor visitor visas, and this added to her stress. The applicant contended she was unfairly dismissed by the sponsor.

9. On 24 January 2019 the delegate cancelled the applicant’s Subclass 457 (Temporary Work (Skilled)) visa and on 5 February 2019 the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with her application. The applicant appeared before the Tribunal on 2 August 2019 to give evidence and present arguments. The applicant confirmed she was the only person giving evidence to the Tribunal. The applicant submitted some medical documentation at the hearing and the Tribunal has duly considered it.  The Tribunal accepts that the applicant has suffered from a knee complaint and also a stress complaint.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Under s.116 of the Act the Minister may cancel the visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case these include the grounds set out at 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 of the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

11. A visa may be cancelled under s.116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. Condition 8107(3)(b) provides that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. In this instance condition 8107 was attached to the applicant’s visa, which was granted on 18 September 2017 and which, but for its cancellation, was valid until 18 September 2021.

12. During the hearing the applicant advised that she came to Australia as a Subclass 457 (Temporary Work (Skilled)) visa holder on 13 October 2017, having been sponsored from offshore. The applicant disagreed with the decision to cancel her Subclass 457 (Temporary Work (Skilled)) visa because she says she was unfairly dismissed by her employer. The applicant advised the Tribunal that after her arrival in Australia on 13 October in 2017 she initially relaxed for a period of around two weeks and had not started employment at that time.

13. After around two weeks the applicant fell ill and wanted to return to India for medical treatment.  She obtained unpaid leave from the sponsor for this purpose. Emails submitted by the applicant to the Department confirm she had unpaid leave during this time. The applicant left Australia on 8 December in 2017 and returned to Australia on 20 December 2017.

14. The applicant advised the Tribunal that on 7 January 2018 she started work for the sponsor.  She worked either at home or onsite fixing computer issues. The applicant advised that initially her work was enjoyable. The applicant advised she performed paid work with the sponsor between 7 January 2018 and March 2018. She said that she received her final pay in April 2018 for work performed the previous month.

15. However, the applicant advised that she fell ill again during 2018 and was provided a further period of unpaid leave by her employer. Medical records submitted confirm that she had suffered from knee and stress complaints and the Tribunal accepts the veracity of that evidence. The applicant also told the Tribunal that she still suffers from these conditions although they are not as bad.

16. According to the applicant she performed paid work in April 2018 for which she did not receive payment, and then she went on unpaid leave and at one point advised she was on unpaid leave from May 2018 until October 2018. She told the Tribunal that she only received a verbal approval for this period of unpaid leave. The applicant apparently attempted to contact her employer to return to work, but according to her he kept telling her to take further periods of rest on unpaid leave. There is no documentary evidence concerning this period of unpaid leave in 2018.

17. The applicant advised that she was surprised that in December 2018 the Department asked for her updated contact details, and was then further surprised when she received the Notice of Intention to Consider Cancellation of her visa on 4 January 2019. The applicant responded to the Notice of Intention to Consider Cancellation of her visa, outlining her medical conditions and contending that she had been unfairly dismissed by the sponsoring employer.

18. According to the delegate’s decision, which the applicant provided a copy of to the Tribunal, the sponsoring employer advised the Department that the applicant had ceased work on

    
    

    11 March 2018. The applicant provided some inconsistent evidence during the review hearing concerning when her period of employment ceased, initially indicating that she had ceased employment in May 2018, and then later advising that she had a more extended period of unpaid leave.

19. The applicant outlined her education and employment history as follows. She completed secondary schooling, a Diploma in Computer Science Engineering, and a Bachelor of Technology in Computer Science Engineering in India. She worked in Information Technology (IT) for two companies in India prior to coming to Australia.

20. The applicant provided inconsistent evidence to the Tribunal during the review hearing regarding her employment history in Australia, particularly concerning whether she had performed work other than with the sponsoring employer. The Tribunal canvassed these matters with the applicant during the hearing. She settled on advising that she performed a two day unpaid period of trial work with an Indian restaurant, but did not undertake further employment there and she maintained that it was only an unpaid trial.

21. The portions of inconsistent evidence that the applicant provided to the Tribunal caused it to have some concerns with her credibility. For the sake of completeness, those inconsistencies concern her precise period of employment with the sponsor and also whether she had performed work other than with the sponsor.

22. The Tribunal canvassed with the applicant when she actually finished work with the sponsoring employer Resource Corner Pty Ltd. She advised during the hearing that she was on unpaid leave from May in 2018 but the business owner, a Mr Vandrangi, only confirmed this period of unpaid leave verbally. She advised that she has met her financial liabilities and requirements in Australia through funds provided by her husband, and also by her friends in Australia, whilst she has been on unpaid leave.

23. The Tribunal raised with her that the delegate’s visa cancellation decision indicates that she ceased employment on 11 March 2018, as advised by the sponsoring employer, but she initially indicated that she was still employed by them for a further period on unpaid leave and maintained that she was unfairly dismissed from that employment. When asked by the Tribunal if she had taken any action with regard to her employer regarding her claims of unfair dismissal she said that she had not done so.

24. The Tribunal has carefully considered the evidence regarding the applicant’s duration of employment with the sponsor. It prefers the evidence in the delegate’s decision noting the employer advised that the applicant ceased work on 11 March 2018. The Tribunal prefers this evidence because there is no documentary evidence of the applicant being on unpaid leave during 2018, as distinct from the documentary evidence showing she was on unpaid leave at an earlier time in December 2017, and further that the applicant has taken no action regarding her allegations of unfair dismissal. Additionally it is because the Tribunal developed some concerns with the credibility of the applicant regarding portions of her evidence during the review hearing, which were inconsistent and have been previously outlined.

25. The applicant told the Tribunal that she has attempted to find other work in the IT industry but has been unsuccessful in doing so. There is no evidence before the Tribunal that she has a new sponsoring employer. On balance, the Tribunal finds that the applicant ceased employment with the sponsoring business, Resource Corner Pty Ltd, on 11 March 2018 as advised to the Department by the sponsoring employer.

26. Additionally, the Tribunal finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. The Tribunal therefore finds that the applicant did not comply with condition 8107(3)(b) attached to her Subclass 457 (Temporary Work (Skilled)) visa.

27. For these reasons the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory consideration 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

28. There are no matters specified in the Act or Migration Regulations 1994 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.

29. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

30. The applicant’s background was canvassed with her during the review hearing. She arrived in Australia as the holder of a Subclass 457 (Temporary Work (Skilled)) visa on

    
    

    13 October 2017. She is educated in the field of information technology. The Tribunal considers that the purpose of the applicant’s stay in Australia holding a Subclass 457 (Temporary Work (Skilled)) visa is to work for an approved business sponsor, being Resource Corner Pty Ltd, in the approved nomination with the approved occupation of Developer Programmer.

31. The applicant last received payment for work with the sponsor completed in March 2018 on her own evidence. For reasons previously expressed, the Tribunal is satisfied that the applicant ceased employment with the sponsor on 11 March 2018. The Tribunal considers it a matter of significance that the applicant has not yet obtained a current approved nomination with an approved sponsor. The applicant has not been in sponsored employment since 11 March 2018, which is a period of approximately 16 months.

32. The Tribunal considers that the applicant has had a lengthy period of time in which to seek alternative employment opportunities and become the subject of an approved nomination by an approved sponsor. She could pursue other visa options offshore. She has not worked for an approved sponsor with an approved nomination for a significant period time and it is inconsistent with the purpose of the Subclass 457 (Temporary Work (Skilled)) visa to allow her to remain in Australia to search for other work.

33. The Tribunal notes that it raised these matters with the applicant during the hearing and she agreed that the Subclass 457 (Temporary Work (Skilled)) visa is a temporary visa, however she contended that if her medical issues had not intervened she would still have her visa until the year 2021. She indicated she wants to work in Australia using her information technology skills.

34. Whilst the Tribunal accepts that the applicant has suffered medical problems in Australia, it is clear from the evidence that she has not been in sponsored employment for a significant period of time. Following careful consideration of the evidence, the Tribunal considers that the purpose of the applicant’s stay in Australia is no longer extant given the aforementioned matters.  Accordingly, the Tribunal finds that this factor weighs strongly in favour of cancelling the applicant’s visa.

35. As previously outlined, the Tribunal has found that the applicant breached condition 8107(3)(b) of her visa as the period during which she ceased employment with the sponsor exceeded 60 days. The Tribunal notes there is no evidence before it that the applicant has failed to comply with any visa conditions other than condition 8107.

36. Following careful consideration, the Tribunal finds that the extent of the applicant’s compliance with visa conditions weighs moderately in favour of cancelling her visa, given the centrality of compliance with condition 8107 to the purpose of the grant of the Subclass 457 (Temporary Work (Skilled)) visa.

37. Regarding the applicant’s past and present conduct towards the Department, there is no evidence before the Tribunal to suggest that she has not been cooperative in her dealings with the Department. The Tribunal finds that this circumstance weighs moderately against cancelling her visa.

38. The Tribunal has also had regard to the circumstances of the visa cancellation. The applicant contends that she ceased employment with her sponsor as she was unfairly dismissed by them due to her medical issues. She contended that she was granted unpaid leave and did not expect to have her employment ceased. The Tribunal has carefully considered emails between the sponsor and the applicant during December 2017, which she submitted to the Department, in response to the Notice of Intention to Consider Cancellation of her visa.

39. In the view of the Tribunal, those emails indicate the applicant was granted approximately two weeks of unpaid leave to return to India and also that she was to call her employer as soon as she returned from that visit to India. The Tribunal has formed the view that she had been granted unpaid leave during the December 2017 period. However, on balance, the Tribunal does not accept that the applicant was granted a further more lengthy period of unpaid leave in 2018, as she has contended, and that is for the reasons previously expressed regarding the Tribunal’s preference for the evidence indicating that she ceased employment with the sponsor on 11 March in 2018.

40. However, in the absence of compelling evidence pointing to the precise reason for the cessation of the applicant’s employment, the Tribunal is prepared to accept that the applicant wished to continue her employment but was unable to do so because she could not perform the tasks of her role because of her medical condition. Therefore, the Tribunal finds that the ground for cancellation did not arise due to her actions. The Tribunal finds that the circumstances in which the ground for visa cancellation arose weighs moderately against cancelling the applicant’s visa given the aforementioned matters.

41. The Tribunal has also considered the hardship that may be experienced if the applicant’s visa is cancelled and whether there is any compelling need for her to remain in Australia. The Tribunal notes that the applicant submitted evidence indicating that she has a compelling need to remain in Australia because she wants to work in this country in the information technology industry.  The applicant also advised that she would face hardship if her visa is cancelled because she would suffer stress, poor sleep, and poor appetite. The applicant informed the Tribunal that there was no reason that she could not return to India to obtain further medical treatment, if required to do so.

42. Whilst the Tribunal accepts that it is the preference of the applicant to remain working in Australia to pursue her career in information technology, it notes that she has developed valuable skills and experience, which would make her more marketable in the Indian job market.

43. The Tribunal does not accept that the applicant would be unable to obtain work and re-establish herself in India given her personal qualities, educational attainment, and work experience.  Accordingly, the Tribunal does not find that a compelling need to remain in Australia arises from the applicant’s claims relating to the pursuit of her career and that any such hardship arising weighs only slightly against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa, particularly given the temporary nature of that visa. The Tribunal has carefully considered the applicant’s claims concerning the hardship she says that she will face if her visa is cancelled.

1. The Tribunal notes that the applicant’s husband resides in India where the applicant’s extended family also reside. The Tribunal considers that if the applicant’s visa is cancelled she will be able to reunite with her husband and her family members in India. The Tribunal notes the medical conditions suffered by the applicant and has duly considered the submitted medical reports. The Tribunal accepts that the applicant suffers from the medical conditions outlined in the reports.

2. However, of note, it is apparent that the applicant sought medical treatment in India and there is no persuasive evidence suggesting that she cannot obtain further medical treatment in India, if she returns to her country of nationality.

3. As raised with the applicant during the review hearing the purpose of the Subclass 457 (Temporary Work (Skilled)) visa is to enable an Australian business to sponsor a skilled worker, if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.

4. It is not the purpose of this visa to enable the applicant to remain in Australia without a sponsoring employer to search for further employment, whilst awaiting her husband to join her from India, noting that in documents she submitted to the Department she expressed her willingness for him to come to Australia and noted that he has been unable to do so due to being unable to obtain a visa.

5. Whilst the Tribunal accepts that upset might be caused to the applicant and her husband if the visa is cancelled and also that upset might be caused to the extended family members, there is no persuasive evidence, including medical evidence, to suggest that such upset would have any detrimental long term consequences to any person.

6. Following careful consideration of the evidence, the Tribunal does not accept that there is a compelling need for the applicant to remain in Australia holding a Subclass 457 (Temporary Work (Skilled)) visa.  Given the absence of such a compelling need, this consideration weighs slightly in favour of cancelling her visa. Whilst the Tribunal accepts that visa cancellation might cause some hardship to the applicant, her husband and their family members, this circumstance must be balanced against the fact that the applicant came to Australia on a temporary visa, which created no expectation of remaining in Australia permanently. On balance, the hardship to the applicant, her husband and their family members by having her visa cancelled weighs slightly against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa.

7. The Tribunal notes that the applicant’s husband attempted to make an application as a secondary visa applicant on the applicant’s Subclass 457 (Temporary Work (Skilled)) visa but the applicant advised the Tribunal that this application was withdrawn when her own visa was cancelled. It is apparent that her husband was never granted a Subclass 457 (Temporary Work (Skilled)) visa as a secondary applicant, therefore no consequential visa cancellation arises in this case by operation of s.140 of the Act.

8. Following careful consideration, the Tribunal finds that the absence of a consequential cancellation of any visa weighs neither in favour of, nor against, the cancellation of the applicant’s visa in the aforementioned circumstances.

9. With respect to the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant does not hold a valid visa she would be an unlawful non-citizen and subject to immigration detention. It will be difficult for her to make visa applications in Australia and she would be liable to be removed from Australia. However, the Tribunal also notes that it is unlikely that the applicant will be affected by the three year exclusion period in Public Interest Criteria 4013 or 4014 if she applies for another temporary visa offshore given her circumstances, including that she obtained a Bridging Visa E shortly after her Subclass 457 (Temporary Work (Skilled)) visa was cancelled.

10. On balance, the Tribunal finds that the mandatory legal consequences of visa cancellation weigh neither in favour of, nor against, the cancellation of the applicant’s visa given they are the intended consequences of legislation.

11. In relation to the consideration of Australia's international obligations there is no persuasive evidence before the Tribunal that any such obligations would be breached as a result of the applicant’s visa being cancelled. There is no evidence before the Tribunal to suggest that there would be any breach of Australia's non-refoulement obligations if the applicant’s visa is cancelled. Accordingly, the consideration of Australia's international obligations weighs neither in favour of, nor against, the cancellation of the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

12. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there to be any other circumstances weighing against, or in favour of, cancellation of her Subclass 457 (Temporary Work (Skilled)) visa.

    CONCLUSION

13. The Tribunal has carefully reflected upon the factors both against, and in favour of, cancelling the applicant’s Subclass 457 (Temporary Work (Skilled)) visa. As has been outlined, the Tribunal notes that some factors weigh against the cancellation of this visa. These factors must be carefully balanced with those in favour of the visa cancellation. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s Subclass 457 (Temporary Work (Skilled)) visa should be cancelled.

    DECISION

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

    K. Chapman
    Member