Sandhu (Migration)

[2019] AATA 5917

Sandhu (Migration) [2019] AATA 5917 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kuldeep Singh Sandhu
Mrs Harpreet Kaur
Miss Savreen Kaur Sandhu

CASE NUMBER:  1912698

HOME AFFAIRS REFERENCE(S):          BCC2019/279029

MEMBER:Warren Stooke AM

DATE:28 August 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 28 August 2019 at 5:01pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment with sponsor for more than 60 days – employment terminated – business closed – failed to find new sponsor – illness in family – young family – eleven year stay in Australia as temporary resident – lack of evidence of hardship caused by visa cancellation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Condition 8107

CASES
Da Silveira v MIBP [2016] FCCA 1703
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 17 May 2019 made by a delegate of the Minister for Home Affairs 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 the basis that the sponsor had notified the DIBP of the termination of the applicant’s sponsorship on 10 May 2018 and the applicant had not provided any evidence that the applicant had returned to work with the sponsor. As such, the delegate was not satisfied that the applicant met the requirements of paragraph 8107(3)(b). In addition, the delegate found that, as the visa was cancelled, the family unit members, who held visas because of the family unit, have had their visas automatically cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. 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.

4. The applicants appeared before the Tribunal on 21 August 2019 to give evidence and present arguments. At the request of the applicant the hearing was conducted in his native language through the assistance of an interpreter.

5. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision.

6. The applicant stated to the Tribunal that as the consultant had submitted the application he was not sure whether or not a copy of the decision had been submitted with the application. The Tribunal has confirmed from the record that a copy of the delegate’s decision was uploaded with the application and submitted on 17 May 2019.

7. The applicant was provided with Notification of Intention to Consider Cancellation (NOICC) on 19 March 2019 and 28 March 2019 and the applicant provided a response 26 March 2019 and 4 April 2019.

8. 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

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). In this regard, a visa may be cancelled under s116(1)(b) if the Minister is satisfied that the applicant did not comply with a condition of their visa, which includes Condition 8107 relevantly in this case. 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.

10. The Tribunal asked the applicant: Do you agree that the delegate had lawful reasons to cancel your visa? The applicant responded: “According to the rules they were right because I had 60 days, but according to me I have not done anything that was wrong. I was not at fault”

11. The applicant confirmed to the Tribunal that he ceased work with Tara & Sons Pty Ltd on 10 May 2018, as a consequence of the closure of the business.

12. The applicant gave evidence that he is not currently working and that he has not worked since his employment was terminated on 10 May 2018.

13. The applicant stated that his wife had been previously working in aged care but after the cancellation of the visa she ceased working, as no work rights or travel was available under the conditions of the Bridging visa.

14. The Tribunal appraised the applicant of the key findings in the delegate’s decision relating to the reasons for the cancellation decision.

15. The Tribunal then provided the applicant with the following statement:

    “Under s.116 of the Act, the Minister may cancel a visa if the Tribunal 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 the Tribunal is satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.”

16. The applicant gave evidence that confirmed that he commenced work within 90 days of being granted a Temporary Work (Skilled) (Subclass 457) Visa. The applicant stated that prior to commencing work on the Temporary Work (Skilled) (Subclass 457) Visa he had been on a student visa. In this regard, the applicant gave evidence that he had completed a Certificate IV in Commercial Cookery; a Diploma in Management and an Advanced Diploma of Hospitality.

17. The applicant confirmed to the Tribunal that he ceased work with the standard business sponsor, Tara & Sons Pty Ltd on 10 May 2018. Further, the applicant confirmed to the Tribunal that he has not worked in any other business since this time and has been sustaining himself and his family through financial support from his family in India.

18. The applicant provided evidence that he had returned to India in 2017 for a period of 10 days due to his mother’s illness and that she had subsequently passed away in December 2018.

19. The Tribunal asked the applicant if he understood that condition 8107 requires the applicant not to engage in work or an activity inconsistent with the activity in relation to which the visa was granted, or the most recently nominated occupation, program, or activity and the applicant responded: “Yes.”

20. The applicant stated that he first came to Australia for the purposes of study and that he started working here and liked the place, which was eleven years ago.

21. The Tribunal asked the applicant when he was intending to go home given that he was a Temporary visa applicant and the applicant avoided providing a response other than to say that it was about his future and that he wanted to live here. He stated that he had married and his wife had worked for two and one half years in the community, within aged care, before the visa was cancelled. He also stated that they have a child who is now 5 years old and in kindergarten.

22. The applicant gave evidence that he had only 60 days before obtaining a new sponsor and that his mother was not well in India.

23. The Tribunal asked the applicant what was the relationship between his mother’s death and his employment and he responded that his mother had come to Australia during the time he was working at the restaurant that had sponsored him, which was in 2016. He then stated that he received advice that the restaurant would relocate, but a subsequent email advised that the restaurant owner was not going to start the restaurant again and the restaurant did not start again. This occurred in May 2018.

24. The Tribunal sought advice from the applicant concerning ‘hardship’ that would arise, in circumstances where the applicant’s visa was to be affirmed as cancelled. The applicant responded that he had been living in Australia for 11 years and his wife for the last 5 years and that he had not been convicted of any crime and that he was a genuine resident here [Australia].

25. The applicant stated that he has a father in India, who has retired but has limited finances as he was privately employed and does not have a pension. In this regard, the applicant stated that his father had been retired for 4 years.

26. The applicant stated that he has a brother and sister-in-law in India, who have two children. In this regard, he stated that his brother had been in the army for 20 years.

27. The applicant gave evidence that he has no income and the Tribunal asked how the applicant was sustaining himself. The applicant stated that his father was providing financial support.

28. The applicant also stated that he had applied for work rights, so he could start working again.

29. The applicant was asked whether there were any international obligations that would impact upon the applicant should the Tribunal affirm the decision of the delegate and the applicant responded with – “No”.

30. The applicant during the course of the hearing requested that he be granted an opportunity to find an alternative sponsor or for the Department to revisit the cancellation. The Tribunal advised the applicant that the status of the delegate’s decision is the subject of the appeal currently before the Tribunal.

31. The Tribunal invited the applicant to make further comment and he responded that he had no other information and declined the offer to make any further comment.

    Does the ground for cancellation exist?

32. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the applicant did not comply with a condition of their visa.

33. The Tribunal has considered, in accordance with the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, the circumstances pertaining to the cessation of employment and accepts that the decision by the employing sponsor was beyond the control of the applicant, however, the fact that the applicant was not able to procure an alternative sponsor within the permitted 60 consecutive days, following termination of employment, was within the applicant’s control and in the absence of providing evidence of engagement with an alternative standard business sponsor, the Tribunal finds that the ‘grounds for cancellation’ exist, as the applicant has breached Condition 8107.

34. In this instance, the Tribunal is satisfied on the evidence that the condition 8107 was attached to the applicant’s visa. This condition, in 8107(3)(b), states that if the applicant ceases employment, then the period in which the applicant cease employment must not exceed 60 consecutive days. This is the condition that the delegate found the applicant to have breached. Information in the delegate's decision record, which was submitted by the review applicant to the Tribunal, indicates that the review applicant's sponsoring employer in the most recently approved nomination (20 Feb 2018) for the visa, was Tara & Sons Pty Ltd. The occupation listed in the approved nomination was ‘Cook’.

35. The applicant gave evidence and has conceded that his work at the sponsoring business terminated on 10 May 2018 and the applicant entered a period of more than 60 consecutive days without employment with either the original sponsor or an alternative bona fide sponsor. As such, the Tribunal finds on the basis of this evidence that the applicant has ceased employment with the sponsor for a period exceeding more than 60 consecutive days without an approved standard business sponsor. As such, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists.

36. As neither of the grounds stated above require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.’

37. For these reasons, the Tribunal is satisfied that the ground for cancellation in accordance with 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 visa should be cancelled.

    Consideration of discretion

38. The Tribunal explained to the applicant that where the Tribunal was satisfied that grounds for cancellation existed, it was then incumbent upon the Tribunal to consider whether to exercise discretion regarding affirming the delegate’s decision or to remit the decision to the Department for further consideration.

39. In response to the NOICC, the visa applicant claimed he understood the condition that he has 60 days after ceasing employment to find another employer who can nominate him. However, he also claimed in response that according to the visa condition he did not break any rule as it was not his mistake.

40. On this basis, the Tribunal notes that 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’.

    Purpose of Travel and Stay in Australia

41. The evidence provided by the applicant was that he wanted to stay in Australia having resided here for 11 years, which included a period of study and subsequently, as a Temporary Work (Skilled) (subclass 457) visa applicant and that he had settled with his wife and 5 year old daughter.

42. The evidence provided to the Tribunal identifies that the applicant participated in studies in Commercial Cookery and then sought to extend his learnings with practical experience as a Cook before returning to his home country, which is understandable and accepted by the Tribunal. The loss of employment in this vocation, where the applicant has a desire to continue to gain experience, is subject to the compliance with Conditions attaching to the granting of a Temporary Work Skilled visa. 

43. Whilst, the Tribunal accepts the purpose of the initial travel and stay in Australia (for study and to obtain temporary work rights), the facts of the applicant’s contemporary circumstances confirm to the Tribunal that the applicant is no longer working with the initial sponsor, Tara and Sons Pty Ltd and has not sourced an alternative standard business sponsor having had his employment terminated on 10 May 2018. In this regard, the applicant confirmed to the Tribunal that he has not worked since and his current Bridging visa does not permit employment or travel, although he did provide evidence that he is currently seeking to obtain ‘work rights’.

44. The Tribunal is not satisfied that there is a compelling reason for the applicant and his family to remain in Australia. The Tribunal does not consider a desire to live in Australia and that the applicant’s longevity in Australia as a temporary resident, or a child in kindergarten constitutes a compelling ground upon which the Tribunal should exercise discretion.

45. In these circumstances, the Tribunal does not attach significant weight to this consideration in the exercise of discretion, as the applicant has spent 11 years in Australia with the grant of various ‘temporary’ visas, which has provided significant opportunity to advance his education and develop skills in the chosen profession.

    Compliance with Visa Conditions

46. The applicant gave evidence that he had only 60 days before obtaining a new sponsor and that his mother was not well in India.

47. The applicant stated that he received advice that the restaurant would relocate, but a subsequent email advised that the restaurant owner was not going to start the restaurant again and the restaurant did not start again. As such, the applicant ceased employment on 10 May 2018 and has not worked since this time.

48. Further, the applicant provided evidence that his mother became unwell during a visit to Australia in 2016, which led to her passing in December 2018. The Tribunal has considered these circumstances and does not find any correlation with the applicant’s loss of his position with Tara and Sons Pty Ltd.

49. The meaning of ‘ceases’ employment was considered in Da Silveira v MIBP [2016] FCCA 1703 (Judge Jarrett, 8 July 2016). In that case, the Court was called upon to consider whether the text of Condition 8107(3)(b) might be properly construed as applying only where a visa applicant’s employment comes to an end by a termination of that employment by the visa applicant. The Court found, however, that the reference to ‘ceases employment’ in Condition 8107(3)(b) covers circumstances where the employment ceases due to termination by the employer or sponsor as well as by the visa applicant: at [24].

50. On the basis of the foregoing, the Tribunal is satisfied that the applicant was in breach of visa Condition 8107 and thereby was not compliant with his visa conditions. Although the circumstances that brought about the initial breach status was outside the applicant’s control, the inability of the applicant to secure an alternative standard business sponsor, within 60 consecutive days was within the applicant’s control and he did not thereby maintain compliance with Condition 8107.

51. Further, there is no evidence before the Tribunal that the applicant has breached the terms of his Bridging Visa.

52. In these circumstances, the Tribunal attaches significant weight to the Conditions of compliance in considering the exercise of discretion.

    Degree of Hardship  

53. In the visa applicant's response to the NOICC he indicated he and his dependents would experience the following hardship if the visa is cancelled:

    a.If his visa is cancelled he would face more problems and also cause hardship to his wife and four year old daughter.

    b.His wife is working as a personal care assistant in aged care.

54. At the hearing, the applicant provided limited evidence of the hardship he and his family would suffer, including hardship that would be caused to the applicant’s daughter’s attendance at a local kindergarten, however the Tribunal is cognisant that India has a compulsory and free education system for children from the ages of 6 and 14 years of age.

55. The visa applicant first arrived in Australia on a Student visa on 14 July 2008, and held his current 457 visa for one year and three months. Despite there being no expectations given by the Department, of long term residency in Australia whilst holding temporary visas, the Tribunal has considered that the visa applicant may have developed some social and economic ties during his time in Australia.

56. In this regard, the Tribunal acknowledges that the cancellation of the 457 visa, and subsequently departing Australia, may result in the visa applicant and his dependents experiencing some hardship (financial, psychological, emotional or other hardship) if he was required to depart Australia and return to his country of origin.

57. Given the visa applicant's educational qualifications and work experience in Marketing and Commercial Cookery, there is little evidence before the Tribunal that suggests it would not be possible for him to obtain employment in his chosen field in his country of origin.

58. The Tribunal has not been provided with substantive evidence that would, on balance, indicate that the applicant or his family would suffer hardship, as a consequence of the Tribunal affirming the delegate’s decision. In this regard, the Tribunal finds that the applicant has family and support in India, from whence he came, and the Tribunal notes that the applicant’s family has been providing financial support since the applicant had his employment terminated on 10 May 2018.

1. The Tribunal was provided with evidence that the applicant’s mother died in December 2018, which was subsequent to the loss of the applicant’s sponsor in May 2018 and that at the time of his mother’s sickness the mother remained in India, separated from the applicant. As such, the Tribunal does not find that there is any correlation between the applicant’s mother’s death and the loss of his sponsorship, which was because the business ceased to operate. However, the Tribunal does recognise that the applicant and his family would have been under stress at this time, but the Tribunal does not consider the impact of the stress incurred with the death of a relative in the home country, poses any hardship in the context of the applicant’s continuing status by remaining in Australia

2. Additionally, whilst the Tribunal accepts that the applicant and his family would experience some psychological and emotional effects or other hardship from the cancellation of the visas, the Tribunal has only been provided with limited evidence from the applicant in the context of such effects and therefore does not give any significant weight to this consideration in the exercise of discretion in favour of the applicant.

3. In these circumstances, the Tribunal does not attach significant weight to the degree of hardship that would be incurred.

   Past and Present Conduct of the Visa Applicant toward the Department

4. There is no information before the Tribunal to indicate any specific matters of relevance regarding the visa applicant's past and present behaviour towards the Department. As such, the Tribunal gives this consideration some weight in the visa applicant's favour. The Tribunal accepts that there has not been any previous breach of visa conditions and has been cooperative with the Department. Accordingly, the Tribunal is satisfied that there is no known adverse conduct on the applicant’s part that would be of concern to the Tribunal.

   Resulting Consequential Cancellations (if any)

5. According to Departmental records, the following people are currently in Australia as a dependent on the visa applicant's 457 visa:

   Name  Date of Birth  Relationship to visa applicant

   Kaur Harpreet  27 February 1992              wife

   Savreen Kaur Sandhu        26 November 2014           daughter

6. The named dependent's secondary 457 visas were granted on the basis of being members of the family unit of the visa applicant, who is the primary visa applicant. There is no information before the Tribunal to indicate that the dependents have applied for a visa independent of the visa applicant or have ceased to be members of the visa applicant's family unit.

7. Therefore, should the Tribunal decide to cancel the visa applicant's 457 visa this will result in the consequential cancellation by operation of law under section 140 of the Act, of the secondary visas of the above people. This will keep their immigration statuses aligned and will prevent the cancellation splitting this family unit.

8. The Tribunal gives this consideration a little weight in the visa applicant's favour.
   
   

   Mandatory Legal Consequences

9. The Tribunal is cognizant that the visa applicant and his dependents will immediately become unlawful non-citizens and has considered the implications of the visa cancellation that may result in them being detained under section 189 and removed from Australia under section 198 of the Migration Act 1958 if they do not resolve their immigration status or voluntarily depart Australia.

10. The Tribunal has considered whether as a consequence of a cancellation decision, the visa applicants may be subject to indefinite detention. As they are citizens of India and hold passports for that country, it would be open to them to return to that country to mitigate the possibility of being placed in immigration detention. The Tribunal therefore does not consider they would potentially face indefinite detention.

11. The Tribunal has also considered that the applicant may be subject to section 48 of the Migration Act 1958 that may restrict the applicant from applying for further visas while in Australia.

12. The visa applicant and his partner may not be permitted to work in Australia following a visa cancellation and may be held in immigration detention until the applicant’s removal from Australia. Immigration detention could be mitigated by voluntarily departing Australia.

13. The Tribunal has considered that the applicant and his family currently have Bridging visas that provide adequate time for the family to get their affairs in order before departing Australia, in circumstances of visa cancellation, subject to any other rights. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status that will allow the applicant and his family to remain in Australia. If that is the case, the applicant and his family have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

14. Further, the Tribunal is satisfied that, if the applicant’s visa remains cancelled, he will not be affected by a ‘risk factor’ prescribed in PIC 4013 of Schedule 4 or PIC 4014 Schedule 4 and finds that this consideration does not favour the reinstatement of the applicant’s visa.

15. Overall, the Tribunal gives little weight in the visa applicants favour concerning mandatory legal consequences.

    International Obligations

16. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

17. The visa applicant is a citizen of India. He had not applied for protection or indicated he would face harm if he returned to his home country.

18. A decision to cancel the visa will result in the consequential cancellation by operation of law under section 140(1) of the Act, of the secondary 457 visa of the child listed below:

    Name  Date of Birth               Relationship to visa applicant

    Savreen Kaur Sandhu           26 November 2014     Daughter

19. In response to the NOICC, the visa applicant has provided information about how the interests of the child could be affected by cancellation of the visa. The applicant advised that his daughter is going to kindergarten in Australia.

20. Article 3.1 of the CROC stipulates that the best interests of the child are a primary consideration and that the welfare and benefit of a child is a primary consideration. The Tribunal has given a primary consideration to the best interests of the child. In this regard, the Tribunal understands that the child lives with both parents. As such, a decision by the Tribunal to affirm cancellation of the visa, in the Tribunal’s view, would not result in the child being separated from either parent, as their immigration status would remain the same as the visa applicant and his wife.

21. As the child is five years old and is a citizen of India, the Tribunal finds that the child would have access to the services in India that are available to all Indian citizens, including education and health. Kindergarten and primary school education is available to children in India. According to India's Right to Education Act 2009, schooling is free and compulsory for all children from the ages of six to 14. Therefore she would not be denied access to an education in India.

22. The Tribunal is satisfied that cancelling the 457 visa would not potentially result in Australia breaching its obligations under any relevant international agreements.

23. The Tribunal gives this consideration a little weight in the visa applicant's favour.

24. The evidence before the Tribunal does not suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements, which was corroborated by the applicant in his response to this matter at the hearing. In this regard, the Tribunal asked the applicant whether any international obligations, including refoulement and the best interests of the children as a primary consideration, would be breached as a result of a cancellation and the applicant responded – “No”.

25. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

    Impact on Victims of Family Violence

26. There is no evidence before the tribunal regarding this matter.

    Any other Matters

27. The Tribunal invited the applicant at the end of the hearing, if he wanted to make any other comment and he declined to make any comment or raise any other matters. As such, the Tribunal is satisfied on the basis of the material before the Tribunal that there are no other matters that would need to be considered in relation to the consideration of the cancellation of the applicant’s Temporary Work (Skilled) (subclass 457) visa.

    Conclusion

28. On balance, the Tribunal finds that the considerations that weigh against the Tribunal exercising its discretion not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa are outweighed by those considerations that affirm the cancellation.

29. Considering the circumstances as a whole, the Tribunal concludes that the visas should be cancelled.

    Secondary applicants

30. The only decision that is before the Tribunal is the decision with respect to the applicant. The second and third named 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to second and third applicants.

    DECISION

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

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

    Warren Stooke AM
    Member