Razwantee (Migration)

[2019] AATA 6942

Razwantee (Migration) [2019] AATA 6942 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Usha Razwantee
Mr Rakesh Razwantee
Miss Deepshika Razwantee
Miss Yashi Razwantee

CASE NUMBER:  1720267

HOME AFFAIRS REFERENCE(S):          BCC2016/2082242

MEMBER:Karen Synon

DATE:27 November 2019

PLACE OF DECISION:  Melbourne

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 27 November 2019 at 1:08pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 90 days – allegations of payments demanded for sponsorship – applicant forced to resign – disruption to family’s education – conversion to Christianity – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48A, 116, 140, 348, 359, 359A, 494B
Migration Regulations 1994, r 2.55; Schedule 8, Visa Condition 8107

CASES

BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80           

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 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 delegate cancelled the visa under s.116(1)(b) on 6 July 2017 the basis that the applicant had not complied with Condition 8107(3)(b).

3. The applicant applied for review of the decision to cancel her visa on 1 September 2017 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

4. This case was first constituted to another member but when she was unable to hear and determine the matter it was reconstituted to the current Member.

   Jurisdiction of the matter

5. On 12 September 2017, under the direction of the previously constituted Tribunal, a natural justice letter was sent to the applicant inviting her comment on the jurisdiction of the matter as the application for review appeared to have been lodged out of time on 1 September 2017.  Comments in writing were invited by 26 September 2017.  In response it was contended that there was a defective notification because it was not sent to the migration agent acting for the applicant or the applicant at her correct address.  It was sent by registered mail to [Address 1] rather than to the applicant’s advised address (on Form 956) of [Address 2, which only differs from Address 1 in the form of a minor spelling variation].

6. The previously constituted Tribunal requested a copy of the applicant’s handwritten incoming passenger card which this Tribunal has reviewed and is satisfied records the correct addressof [Address 2].

7. In accordance with r.2.55(3) of the Migration Regulations 1194 (the Regulations) the issue for the Tribunal is what was the applicant’s last advised residential address.

8. The Tribunal has referred to the correspondence on the Department of Home Affair’s (the department) file and notes that the notification of her cancellation was sent to the incorrect address of [Address 1] and was ‘returned to sender’ and it  was it sent to her then registered migration agent, Mr Ian Joo, who had responded to the NOICC on her behalf.  This is despite there being a Form 956 on the department file dated 2 September 2015 authorising Mr Ian Joo, as the applicant’s migration agent.  Also on this form the applicant’s address is clearly stated as [Address 2].  Finally the Tribunal notes that in a department document titled ‘Assessment Notes (at D81) under the subheading ‘Last Known Address Assessment for NOICC’, it was erroneously recorded that the applicant “provided this address” (being [Address 1]) on her most recent incoming passenger card dated 30/08/2016”.

9. While the Tribunal notes that minor discrepancies in the address used by the Minister to dispatch notification may not affect compliance with s.494B of the Act and r.2.55 and that in On v MIBP, the Court held that where the address notified to the Minister by the applicant was not the same as the address communicated to the postal service provider by the delegate, whether or not the document has been dispatched in accordance with s.494B(4) may turn on a number of matters, including the nature and extent of the differences between the addresses.  In that case, the Court held that the delegate’s incorrect spelling of the applicant’s suburb was minor and that it would have been plain to any officer of Australia Post what the intended suburb was. 

10. However, for the reasons given above, in considering the circumstances of this case, the Tribunal formed the view that the notification of the decision was defective and has consequently found that it has jurisdiction to consider this review application.

    Jurisdiction of secondary applicants

11. 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. The Tribunal explained this at the hearing and invited the applicant to make any comments. She said she did not understand. After explaining this again to the applicant she indicated she understood and had no questions.

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

    Invitation to comment and provide information

13. On 3 October 2018, in accordance with the provisions of s.359A and s.359(2) of the Act, the Tribunal wrote to the applicant in the following, relevant terms:

    ·     The information is from the Department of Home Affairs records and relates specifically to the applicant:

    o    You were granted a Subclass 457 visa on 12 August 2016.  It was originally valid to 12 August 2020 but was cancelled on 6 July 2017.  Your visa was sponsored by Mavani Enterprises Pty Ltd & Tejas Rutva Holdings Pty Ltd.

    o    Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased to be employed by your approved sponsor, the period must not exceed 90 consecutive days.

    o    You ceased being employed by your sponsor on or before 19 December 2016.  On 6 July 2017, the date your visa was cancelled, you had not worked for your sponsor for more than 90 consecutive days.

    o    There is no information to indicate that you recommenced employment with your sponsor.

    o    A recent check indicates that no new relevant business nominations have been approved in respect of you since your visa was cancelled.

    In conducted this review in your case:

    ·We will first consider if there are grounds to cancel your Subclass 457 visa in accordance with s.116 of the Migration Act.

    ·If we determine that there are such grounds, we will then consider if your visa should be cancelled, taking into account all the relevant information.

    This information is relevant because it indicates that:

    ·You breached a condition of your subclass 457 visa, and there are grounds for cancelling your visa under s.116(1)(b) of the Migration Act

    §There are circumstances which may indicate that your Subclass 457 visa should be cancelled including that:

    §  Your Subclass 457 visa was granted to you for the purpose of undertaking particular employment with an approved sponsor and that purpose ceased when you stopped being employed by your sponsor.

    §  You have not secured a new approved sponsor, because no new business nomination has been approved for you.

    If we rely on this information in making or decision, we may:

    ·Determine that you breached your visa condition and therefore are there are grounds to cancel your Subclass 457 visa under s.116(1)(b) of the Migration Act.

    ·Decide that your visa should be cancelled.

    You are invited to give comments on or respond to the above information in writing.

    If we determine that there are grounds to cancel your Subclass 457 visa, it will go on to consider if your visa should be cancelled.  In making this assessment, the Tribunal will consider all relevant information, which may include, but is not limited to:

    o    The purpose of your travel to and stay in Australia

    o    The degree of hardship that may be caused by visa cancellation

    o    The circumstances in which the ground for cancellation arose

    o    Your past and present conduct towards the department

    o    Australia’s obligations under international agreements

    o    The impact of cancellation on any victims of family violence

    o    Any other relevant matters.

    The applicant’s Response

14. The applicant requested an extension of time in which to respond which was granted.  On 31 October 2018 a short submission and 2 personal statements were provided.  The submission states:

    The clients have now responded as per the two attached personal statements. One is by the visa applicant and the other by her spouse.  These allege they have been the victims of unscrupulous employers who have sought to abuse their position of advantage in respect of their employment on a SC457 visa, by making demands for significant monies to sponsor them.  The couple are willing and able to elucidate on these submissions in their oral evidence at hearing.

    These circumstances we submit show they have been abused by the employer and left in an invidious position with no job; no future in Australia; no income and significant debt. All with a young family to feed. This forced them to rely on the charity of church friends without which matters could have been much worse.

    They have been sanctioned but their employer has escaped any penalty thus far.  It is our submission that the visa cancellation should not be affirmed by the Tribunal and that the matter be remitted to the department such that they have time to apply for another visa eg a SC 482 visa [with a new employer]; or alternatively a student visa SC 500.

15. The following statement was provided by the applicant:

    In response to your request for submissions on the circumstances surrounding my visa cancellation and compelling and compassionate reasons why our visa should not be cancelled I make the following statement:

    I was told I must sign the resignation letter from my SC457 position with my sponsoring employer.  This is Mavani Enterprises Pty Ltd and Tejas and Rutva Holdings Pty Ltd at their Jezebelle Restaurant in Guildford. See: (now under new ownership??).  I was [upset] at the time; my life was full of issues and I was having a very bad time with my brother who came to stay with us from Mauritius.  [Details deleted.] This was a very hard time for me and I didn't feel as if I have any choice, so I signed the resignation letter and gave it back to my husband Rakesh to give to Mayur Mavani the owner.  I tried to contact Mayur and passed messages to other staff, so they could get Mayur to call me, however he ignored my calls and messages. I never heard anything from him.

    After that the migration agent, Mr Ian Joo, contacted Rakesh to ask him to pay him for his fees. After a couple of months Rakesh was still working there and Mayur told him he has a friend who can now sponsor me as a cook. Mayur told Rakesh, he must come and meet his friend at a business called Precinct. See: Mayur never informed us that we only had 90 days to find another sponsor.  After a further couple of months, the agent phoned Rakesh and informed him we were too late to find a new sponsor.

    We were always looking for another sponsor, however most of the sponsors asked for money.  Rakesh went to see Mayur and his friend. His friend [a Mr Deepak Patel) was looking for $70,000 in cash for a SC457 sponsorship at Precinct.  As we didn't have any other option, we went ahead with this offer.  Rakesh agreed to pay them from his salary if he worked 60 to 70 hours per week.  About this time, I had received a letter that said our visa would be cancelled if we don't find another company to sponsor me.  We went ahead with Mayur's friend's sponsorship.
    They told Rakesh as part of his commitment to sponsor he would have to do a cleaning job after the restaurant closed.  Rakesh did this cleaning job for a few months without any pay. At this time, we were waiting for our work permits. After we got our work permits we asked the owners to pay us correctly and deduct tax, however, they kept ignoring us and never paid us on a TFN.

    They told me I could start working in the kitchen, so I then started working at Precinct.  I got paid cash in hand, $15 per hour.  They would not pay me on a TFN.  Rakesh was also working at the same place.  Sometimes the owners spoke rudely to us without any respect, and they made us work on public holidays and weekends without proper penalty rates.  We felt we had no choice and continued to work there without telling anybody how we were being treated and used by the owners.

    On 16th June 2017, we got a letter informing us that our visa is going to be cancelled.  We went ahead with the nomination at Precinct.  The agent, Mr Ian Joo, gave us the application to sign and we noticed our address was wrong.  We told Ian by phone the address was wrong, however he said it was alright and he didn't have time to change it.  Unfortunately, it was too late, and my SC457 visa was cancelled.  We didn't get any more mail from immigration again, as they sent all documents to the wrong address.

    Sometime later, I sent Mr Joo our new Mauritian passports, as our old ones were expired so we needed to update our new passport details with immigration.  A few days later Ian phoned us and told us he couldn't find any information while he was trying to update our passports. He told us we must go to immigration as soon as possible.

    The next day, Rakesh and I went to immigration and asked them why our agent couldn't find our details online.  We were very shocked and shattered, our hearts broke, and I started crying when the immigration officer told us that our visa was cancelled in July 2017 and the cancellation letter was sent to our old address.  The officer also told us we are now illegal here, as we are unlawful.  He told us to come for an interview after one week to see if we will be sent back to Mauritius or given a bridging visa E.  After one week, we again went to immigration. They made us sign some documents and gave us a bridging visa E.

    It would have been very hard for me and my family to go back to Mauritius suddenly. My kids, who were born here in Australia, are very used to life here as English is their first language.  If we go back to Mauritius, they will not be able to adapt.  The schools will make my daughter's start again from kindy and it will be very hard for them to lose their life in Australia.

    My life was full of pain when all of this happened. I didn't want our future to be ruined just because of the agent's mistake.  The owners of Precinct also abused both of us financially, emotionally and psychologically, and we felt we did not deserve a bridging visa E without travel.

    We have accumulated significant debt since all these things happened in our life.  We spent a lot of money on all the application fees and we wasted our time and effort with bad agents and business owners. We wanted a good future for our kids.  It is our belief we should already have our permanent resident [or even citizenship] as we have been staying in Perth for twelve years. We have been unfortunate and unlucky with all our visa applications.  We really love Australia, as it is a great place to settle down with a family and build a good future.  We believe we deserve to be here, and do not want all the bad things that have happened to us in Australia to ruin our lives.

16. The applicant’s husband provided the following statement:

    I…started working for Mavani Enterprise Pty Ltd at Globe Coffee House in South Perth in 2014.  See:  I worked there as a chef for almost one year, with the partners Mayur and Tejas.  I asked them if they could give me a sponsorship at Globe Cafe and they said yes, they will sponsor me.  However, at that time I was still studying cookery and I still had one year to go on my course.  Mayur then told me he was going to buy a new business located in Guilford, called Jezebelle Tapas Bar.  See:  He said he would need a chef to work there and I told him my wife…was looking for a job as she had already completed her studies in commercial cookery. Mayur said yes, he can give her a job and even give her sponsorship instead of me.

    After buying the business he told me to tell my wife to collect all her paperwork, certificates and course completion letter from her place of study.  Mayur then applied for the 457 nomination for Usha and sent us to his migration agent, Mr Ian Joo, whose office was located at Raine Square in the city.  We met Ian, gave him all our documents and paid him $2,000 to submit the application.  At that time, we had only one month left on our previous visa before it expired.  Unfortunately, Ian didn’t submit our application on time and it was rejected.

    We then had to go back to Mauritius to resubmit the application (as an offshore matter).  I asked Ian Joo why our application was rejected, and he said that Mayur didn't give him the agreement letter between the restaurant and Usha in time.  Ian said that because Mayur didn't give him the agreement he couldn't submit the application on time.

    Mayur went to India for a couple of months after submitting our application.  I asked him if he submitted his agreement paper to Ian and he said yes, he did.  While Mayur was in India, I tried to contact him regarding the agreement.  He did not reply to me until two weeks later, he told me that he left the agreement paper with his partner, Tejas and he forgot to email the paper to the agent.  Mayur told me to go back to Mauritius then he will submit the application again.  I told him I don't have a financial back up plan.  Mayur assured me he would pay for everything however all he paid for was our tickets to go back to Mauritius.  We went back to Mauritius in June 2016.

    Our visa was granted in August 2016.  Mayur called me in the morning to let me know the visa had been granted and told me to come back to Australia as soon as possible.  He didn't pay for the return ticket even though he previously told me he would.  I had to borrow money from my parents to book our return tickets.  We arrived in Perth on the 31st August 2016.

    Mayur and Tejas then told me to start working that very same day, however I couldn't start immediately as I had to find a place for my family to stay.  I had lost the place we were living in previously in [address]. Tribunal hey also told me they would pay my rent until I returned, however once again they didn't pay a penny.  Luckily our friend put us up in their house for a couple of weeks until we found a place to stay.  It was very hard for me to find a place because of my financial problems, since Mayur told me to work 7 days a week until I paid back the money he spent on our one-way ticket to Mauritius. I agreed to work 7 days a week until I paid all the money back, however once I finished paying him back for the ticket he still wanted me to work seven days a week.  He told the chef to give me extra hours because I owed him $30,000.  He also told the manager and they asked me why I owed Mayur $30,000. I told them I did not owe Mayur $30,000.

    I then confronted Mayur as to why he felt I owed him $30,000.  He had never mentioned any money before processing the application for Usha's nomination.  I asked him why he told the chef and the manager that I must pay him $30,000.  I did not ever agree to pay the amount he was asking however he continued to take money out of my wages.  He was paying me cash in hand and I asked him to pay me on a TFN.  He always said he would next week, however he never paid me on a TFN after Usha got her sponsorship for the 457 visa.  I worked for a couple of months until he told me to stop coming to work because I told him I would not pay the money he was asking from me.  After a further week passed he told me to resign from Jezebelle.  Mayur also told me that if Usha doesn't resign he will cancel her sponsorship, and we will then have to go back to Mauritius and won't have any chance of returning to Australia for at least three years.  I apologised to Mayur for this argument, but he wouldn't listen to me.  He printed a resignation letter for me to give Usha to sign.

    At that time (March) Usha was [upset] because of her brother.  He was staying with us at the time [details deleted]. It was because of this [situation] and pressure from her employer that she signed the resignation letter from her position at Jezebelle's.

1. In addition, character references were received from Sherll Flynn and Pastor You Sin Houe.

2. Relevantly the applicant had also earlier provided to the Tribunal: [some documents, including] a contract for employment with The Precinct for employment as a cook;

3. The applicant appeared before the Tribunal on 15 November 2018 to give evidence and present arguments.  The Tribunal also received oral evidence from Stacey Singh, a church friend and Mr Gurdeep Singh.  The listed secondary applicants were also present and the applicant’s husband gave evidence.

4. The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.

5. The representative said that the reason why they attended the hearing was to have sworn evidence before the Tribunal about people demanding money for visas and they wanted this on the record.  The Tribunal noted the evidence provided was that this was a demand made through the applicant’s husband and of an in-kind nature such as the expectation that he would work extra hours and perform additional duties in return for having the nomination approved.  The Tribunal emphasised that the applicant should have reported this immediately to the department.  The representative also noted that when the employer’s representative wrote to the department advising of the change of employment of the applicant he advised “please proceed the 457 visa cancellation and advise me” despite the fact that he was supposedly representing both the sponsor and the applicant.

6. The applicant said at the hearing that the new owner of Jezebelle restaurant may be willing to sponsor her on a 482 visa.  The Tribunal indicated that it would delay its decision-making both to make a determination about its jurisdiction (determined above at paragraphs 5-10) and during this time would consider, in weighing its discretion, any other sponsorship applications that may be lodged with the department.  The Tribunal emphasised that the applicant needed to notify it immediately should a nomination be lodged and determined.

   Submission received after the hearing

7. On 29 November 2018 the Tribunal received a submission from the applicant’s representative advising that the applicant had found a new employer to nominate her in the position of ‘Cook’ on a 482 visa.   The employer is Jezebelle, the restaurant in which she was previously employed but which is now under new ownership.  The Tribunal was provided with a letter from Mr Preet Grover, owner/director of Jezebelle who writes that the applicant has been employed under the new ownership of the restaurant and details her responsibilities as a cook.  Also provided was a copy of the department’s approval of the relevant business as a standard business sponsor with effect from 12 November 2018 until 12 November 2023.  The Tribunal was advised that the position was advertised for 4 weeks from the end of November and was relevantly advised:

   The process of completing the advertising requirements for the position and lodging and waiting for a decision to be made on the Nomination application will take a considerable period of time - more than 75 days (please see screen shots below from the legislative instrument - LIN 18/036 and the DOHA website). Hence we kindly request an extension of time confirm that an approved TSS Nomination has been obtained for the restaurant - hopefully in respect of the appellant.

8. The Tribunal has waited what it considers to be a very generous period of 12 months before finalising this decision and notes that since 29 November 2018, no further correspondence has been received from the applicant or her representative in relation to the proposed new nomination.  The Tribunal also notes that despite the applicant providing a ‘Contract of Employment’ for employment as a cook with The Precinct, that this nomination appears to have either never been lodged or refused.  Given the Tribunal’s very clear advice to the applicant that it was her responsibility to notify it if a new nomination had been lodged and determined, the Tribunal believes it is reasonable, in the circumstances of this case, and having waited 12 months, to proceed to a decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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). 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?

10. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 was attached to the applicant’s visa. Condition 8107(3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.

11. On the basis of the information before it (contained in the Notification of Cancellation and the primary decision, copies of which the applicant provided), the Tribunal finds that the applicant was granted a Subclass 457 visa on 12 August 2016 to occupy the position of ‘Cook’ for Mavani Enterprises Pty Ltd & Tejas Rutva Holdings Pty Ltd.  The Tribunal therefore finds, based on this information, that the occupation listed in the most recently approved nomination for the applicant is that of ‘Cook’.

12. The applicant came to Australia in October 2007 with her husband.  When they came they found they liked Australia.  She was on a package of courses commencing with a Certificate III in Commercial Cookery and culminating in a Diploma of Hospitality Management.  She completed her course in February 2010.  During the time she was on her student visa she worked at Portobello on a part-time basis from November 2007 until November 2008.  Later she worked at Just Eat in Perth.  Her husband became the holder of a student visa in 2010 which was valid until 2012.  During the time the husband was on a student visa she stayed at home.  After 2012 she undertook an Advanced Diploma of Hospitality Management which she completed in December 2012.  Her husband was granted a student visa to do marketing and commercial cookery.  He completed an English course, the Certificate IV and Diploma of Marketing and a Certificate III in Commercial Cookery.  After their student visas expired in December 2012 the applicant’s husband got another student visa to study cookery but he only studied for 3 months of that period because he changed colleges.  At the time he could not pay the fees.  In 2015 the applicant’s husband got another visa in November 2015 to complete his cookery studies but he did not complete these studies.

13. Around November 2015 her husband’s employer said he was happy to employ her.  Her husband worked as a chef at the Globe Café in South Perth from April 2014.  He asked if they would hire the applicant and they said yes, they would employ her as a cook at Jezebelle Restaurant in Guildford.  The agent was Ian Joo.  She was not interviewed but they knew of her experience and knew her husband.  It was an existing business but the owner of Globe Café had bought the business.  Asked if the applicant started working at Jezebelle restaurant in June 2016 when the 457 visa was granted she said no, in fact she never started work there.

14. The applicant’s husband explained that the owner developed a problem because he wanted to sponsor him but he had not finished his course so the owner said he would sponsor the applicant’s wife if he continued to work for him.  They paid $2,000 to lodge the 457 paperwork for the visa but it was refused in 2015 so they went offshore to lodge another 457.  It was granted on 12 August 2016.  When they came back from Mauritius the applicant’s husband returned to work straight away.  His employer had paid for the 4 tickets for the family to travel to Mauritius and back which cost $3,000.  However, after one week, the chef told him that he owed the employer $30,000 and he would need to work 7 days a week to pay this money back.  The applicant’s husband talked to the owner and said he did not owe him $30,000, only $3,000.  The owner told the chef to give the applicant’s husband more hours.  He had many meetings with the owner, the chef and the manager.  The owner also talked to the manager and said he had to be given extra hours.  This culminated in a meeting with the applicant’s husband, the owner, the chef and the manager and, during this meeting, he asked the owner why he was lying to him about the amount of money owed.  The owner then yelled at the applicant’s husband and told him to get out.  He was upset that he had been accusing him.  A day later the applicant’s husband went back to apologise to the owner who spoke rudely to him and told him he had to resign.  He was a casual employee.  However, after another week, the employer called him back to work and he worked there from about October 2016.  He was paid $18 an hour.  The applicant’s husband continued to work there for about 6 months until his visa was cancelled in July 2017.

15. After the applicant’s husband returned to casual employment the employer told him that his wife must resign from her position.  The applicant said she felt forced to resign and had no option but to sign the letter the employer had sent home with her husband.  First the employer told her that she should type a letter saying she was resigning from Jezebelle Café and that she did not want the job anymore however she refused to do this so the employer typed the letter and sent it home with her husband.  The applicant’s husband said that his wife would not be happy to sign it but the employer responded that if she did not sign it he would cancel the 457 visa and they would have to leave the country.  However if she signed the letter they would get another six months which would allow them to find another visa.

16. The applicant was [upset] and did not know what to do but she signed the letter.  The applicant’s husband resigned at the same time as his wife signed the letter which was in November 2016.  The applicant said she did not know that she had a maximum of 90 days in which to get another employer because she did not read the visa grant letter.  She was [upset] because her brother had come from Mauritius and they were having some personal problems at the time.

17. Noting the assertion that the applicant made, that the employer requested money from her, the Tribunal asked her if she reported this to the department.  She said she did not because she did not know at the time she could report it and was [distracted] with a personal matter.

18. The applicant asserted that the person who owned The Precinct was a friend of Mayur Pate (the owner of Globe Café and Jezebelle Restaurant) and he offered her a 457 job for $70,000.  They did not know they could report this man to the department for asking for money.  The applicant’s husband said he had no option but to agree to pay the money.  The Tribunal noted that this is an offence but the applicant’s husband repeated that he had no other option.

19. The applicant’s husband started working as a Chef for The Precinct after Christmas in March 2017 and worked there for 6 months.  The applicant’s husband told them to keep back money from his wages to pay the $70,000.  They kept all of his salary except the amount they needed to pay for rent.  He worked as both a chef and as a cleaner after hours.  He clarified that rather than keeping back money he was doing the additional job of cleaner for no money.  The applicant also worked as a cleaner and together they worked for 4 hours, so 8 hours in total.  They were doing this for free in return for the visa sponsorship.  The owner also wanted the applicant to cook there which she did for $15 an hour after Christmas.  She worked there for a few months.  The Precinct (Angelo Brothers) lodged a nomination on 23 June 2017 but the applicant and the representative were unsure whether it was approved.  The applicant signed an employment contract for this position.  It was at this stage she noticed her old address was listed and told the agent to change the address but he did not.  Both the applicant and her husband have finished working at The Precinct now.

20. Again, neither the applicant nor her husband reported the request for $70,000 in return for the 457 visa because they did not know they could do so.  Also, the applicant was very [distracted] with a personal matter to do with her brother.

21. The applicant reiterated that she never commenced employment at Jezebelle Restaurant after her visa was granted and she now understands that this is a breach of her visa conditions.

22. Therfore, as it is without contention that the applicant did not commence employment in the occupation of ‘Cook’ for Mavani Enterprises Pty Ltd & Tejas Rutva Holdings Pty Ltd (at Jezebelle), she did not comply with condition 8107 of her 457 visa.  The Tribunal notes that both the applicant and her husband have claimed that her sponsor requested that she sign a resignation letter and she felt she had no option but to do this.  The Tribunal found the applicant and her husband’s evidence in this regard to be somewhat unpersuasive especially as the applicant said she was not interviewed for the position and the oral evidence suggests it appears that they wanted to employ her husband but, because he had not completed his qualifications, he suggested they employ the applicant.  The Tribunal also notes the applicant’s 457 visa was granted on 12 August 2016 but her own evidence was she never commenced this employment and she was asked to sign a resignation letter in November.  The Tribunal observes that the employer may have requested the applicant sign this letter because she did not commence employment for at least 2½ months.  However, without being in a position to take evidence from the former sponsor, this remains speculative.

23. Notwithstanding the claimed circumstances in which the applicant resigned from her occupation attached to her 457 visa, the applicant agreed that she never commenced employment with Mavani Enterprises Pty Ltd & Tejas Rutva Holdings Pty Ltd operating the Jezebelle Restaurant and consequently did not commence work within 90 days.

24. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

25. 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’.

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

26. The applicant said she left Mauritius because her family were not happy with her marriage.  At the time she and her husband arrived they did not know what they were going to do.

27. The applicant has been in Australia for a considerable period of time, however she has only ever been in Australia on a series of temporary visas.  As the Tribunal explained during the hearing a 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that an applicant will be able to remain in Australia on a permanent basis.  The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time as a cook for Mavani Enterprises Pty Ltd & tejas Rutva Holdings Pty Ltd.  This purpose no longer exists.  As over 3 years has passed since the applicant’s 457 visa was granted, a visa she never commenced working on, and she has not been, since then, the subject of an approved nomination, the Tribunal has formed the view that the purpose of the applicant’s further stay in Australia is no longer viable.

    The degree of hardship that may be caused by visa cancellation

28. The Tribunal accepts that the applicant and her family feel settled into Australia and that her children have commenced their primary schooling here at the same school.  They rent a home and are involved in their neighbourhood and with their church community.  Character referees speak of the applicant and her family’s good qualities.  At the hearing the applicant said if they had to return to Mauritius it would be very difficult for them financially (to pay for rent, food and school fees) and it will be really hard to start life there again.  They will need to look for another place to live because their family will not accept them.  The applicant explained this is because she and her brother had a personal [problem].  The applicant conceded she does not need to live with her brother when she returns to Mauritius and that she gets on well with her sister (although she is very busy) and her mother is also living there.  However the applicant is concerned about giving her mum tension if she lives there.  The applicant did have assets in Mauritius however she sold these for about $15,000 after she knew she had a sponsor.  The applicant’s husband worked as a chef at large 4 and 5 star hotels in Mauritius.  The applicant also said that the school services in Mauritius are not good.  The applicant’s husband said that if they go back to Mauritius that will not have a place to live and renting in Mauritius is very expensive.  However the Tribunal notes that the applicant’s rent a property in Australia and could equally rent in Mauritius and that the husband has a record of employment in 4 and 5 star hotels.

29. The Tribunal acknowledges that the family will no doubt suffer some readjustment to life in Mauritius however many people must leave Australia after a decade or more of living here and the applicant and her family were always in Australia on temporary visas and should not have had any reasonable expectation of permanency.  That they have chosen to stay here, including for over 2 years since the 457 visa was cancelled, was their decision.  The Tribunal therefore gives this factor little weight.

    The circumstances in which the ground for cancellation arose

30. The applicant claims that she was forced to sign a resignation letter and that she was under [duress] at the time.  At the hearing the applicant clarified that there was an implied claim for money which would be satisfied by her husband working additional hours.  The Tribunal has serious doubts about the applicant’s claim that she was forced to resign her position given her own evidence that she never commenced employment for her sponsor and she signed the resignation letter 2½ months after she was granted the visa.  The Tribunal therefore gives this factor little weight.

    The applicant’s past and present behaviour towards the department

    There is no information before the Tribunal to suggest that the applicant has not complied with the conditions of any other previously held visas.  The applicant however did not, as required, notify the department of her change of address.  Nor did she advise the department that she had never commenced employment with her sponsor.  The Tribunal also notes its significant concerns that, despite the applicant and her husband, saying they were asked for money for visas on 2 occasions, the first being by Mavani Enterprises Pty Ltd & Tejas Rutva Holdings Pty Ltd who asked the applicant’s husband to work additional hours to pay back an asserted $30,000 debt and secondly by the owners of The Precinct who, it was claimed, asked for $70,000 in return for sponsorship, they never reported these claimed demands for money to the department.  The Tribunal does not accept the applicant’s explanation that she did not report these claimed demands because she did not know they could and that she was [distracted] at the time.  In this respect the Tribunal notes the [evidence of an event in early] 2017, which was well after the issues arose with the Jezebelle establishment.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

1. The applicant’s visa was cancelled on 6 July 2017 and she now holds a Bridging visa E.  There is no evidence before the Tribunal that cancellation would result in her being subject to detention, or that indefinite detention is a possible consequence of cancellation.

   Whether any international obligations would be breached as a result of the cancellation

2. The Tribunal asked the applicant if she holds any fears for her safety or security should she have to return to the Mauritius.  She said yes because of the personal matter between her and her brother and he was deported to [Mauritius].  [Details deleted.]  She said she had not returned to Mauritius since her brother returned there.  The Tribunal asked if she has any fear of persecution from the state or the police.  She said that there have been lots of things going on in Mauritius like rape which has become “very popular”.  She does not think the country is safe for her daughters.

3. The applicant’s husband said that they were Hindu but converted to Christianity and the applicant contended her family would not accept them and it will be very difficult for them.

4. The Tribunal has carefully considered the applicant’s stated concerns about returning to Mauritius and the danger for her daughters but, given she has returned with her family for holidays there, most recently for almost 3 months while her 457 visa was being processed, the Tribunal is not persuaded that this is a factor on which to place any determinative weight.  In relation to the applicant and her husband’s claim that their conversion to Christianity means they would not be accepted by the applicant’s family and it would be difficult for them, the Tribunal notes that Mauritius is a religiously diverse country with no majority religion and the Tribunal cannot locate any recent reports of religious persecution in Mauritius.  While the Tribunal records that the applicant was clearly feeling very anxious about seeing her brother her own evidence was that she does not need to live with her brother when she returns to Mauritius.

5. In any case the Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.  As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. Further there is nothing in the applicant’s circumstances which prevents these claims of harm for her daughters or religious persecution as a consequence of their conversion to Christianity being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for a protection visa by s.48A of the Act, or from being granted one because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456.

   Degree of hardship and consequential cancellations under s.140

6. The Tribunal notes that there are consequential cancellations under s.140 for the applicant’s husband and daughters and that their visas have been cancelled as a consequence of the applicant’s visa cancellation.  However their visas were only granted on the basis of them being family members of the family unit of the applicant and it is not an unintended consequence of the legislation that if the applicant’s visa is cancelled then her family members visas are consequentially also cancelled.  In this respect the consequential cancellations will not result in the separation of the applicant from her husband and children and keeps the immigration status of all family members aligned.  The Tribunal therefore accords this consideration little weight.

7. Finally, the Tribunal records that the witness evidence before it, both the written references and the oral evidence from Stacey Singh, a family friend and former neighbour, her husband Gurdeep Singh and the applicant’s church pastor all spoke of the applicant’s good character and how the applicants’ lives have changed in Australia.  Their pastor said that it will be hard for them to return to Mauritius as they were formally Hindu but have now become Christians and talked about their conversion experience, his relationship with them as their family pastor and their participation in the Riverview church which they joined after being baptised in August 2018.  Their friend, Stacey Singh, gave a character reference that the applicants are hard-working and always try to do the right thing.  She also talked about the applicant confiding in [her] and said her main worry is for the children and whether they will suffer if they have to go home.  Stacey Singh’s husband, Gurdeep Singh expressed his concern about what will happen to the applicant’s children’s lives and the applicant does not know what to do.  He said that it is always difficult to go back to a country after 10 years.

8. The Tribunal has taken into account all of the available evidence in this case.  Having considered all the circumstances the Tribunal is not persuaded that it should exercise its discretion not to cancel the visa.  In this case the Tribunal has found that the applicant breached condition 8107 because she never commenced employment with her sponsor, Mavani Enterprises Pty Ltd & Tejas Rutva Holdings Pty Ltd, and it is not satisfied that any of the matters raised by the applicant, her husband, her representative or evident on the material before it, either individually or cumulatively, is sufficient for the Tribunal to exercise its discretion not to cancel the visa.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

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

    Karen Synon
    Member