Sharma (Migration)

[2019] AATA 6301

Sharma (Migration) [2019] AATA 6301 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shovita Sharma
Mr Binod Nagarkoti
Master Bishon Nagarkoti
Miss Shivanshi Nagarkoti

CASE NUMBER:  1913783

HOME AFFAIRS REFERENCE(S):          BCC2019/756819

MEMBER:Antoinette Younes

DATE:19 September 2019

PLACE OF DECISION:  Sydney

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

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

Statement made on 19 September 2019 at 3:57pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – Accountant – applicant had ceased employment with the sponsor for period exceeding 60 consecutive days– applicant failed to comply with condition 8107– intention is to remain in Australia on a permanent basis – no approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116,140, 348

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 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 applicant did not comply with condition 8107 attached to her visa. 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 6 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband. The Tribunal received the last submissions on 10 September 2019.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(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?

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. The relevant to this case, condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the visa holder ceases employment must not exceed 60 consecutive days.

9. The standard business sponsor that nominated the applicant in the most recently approved nomination for the visa is LINK PEOPLE PTY LTD (the sponsor) whose nomination was approved on 8 March 2018. The applicant was nominated in the occupation of Accountant (General) (ANZSCO 221111). That occupation is not one specified in the relevant instrument referred to in subclause 8107(3A) to exempt the applicant from having to comply with the requirements of subclauses 8107(3)(a)(ii). Consequently, while the applicant continues to hold the subclass 457 visa, she can only lawfully work in Australia for either the sponsor or an associated entity of the sponsor.

10. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record that:

    ·The Department received written notification from the sponsor advising that the applicant had ceased employment with the sponsor effective from 17 July 2018.

    ·Departmental records show that since the applicant ceased employment, she has not had a nomination application lodged by a sponsor approved by the Department.

11. On the basis of that information, the Department formed the view that it appears that the applicant had ceased employment with the sponsor for period exceeding 60 consecutive days and accordingly she has not complied with condition 8107(3)(b).

12. On 9 April 2019, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant responded on 26 April 2019. In her response, she raised the following matters:

    ØShe started working for the sponsor as an accountant. The sponsor handled many accounts and one of their biggest fell through subsequent to which she was terminated. She was basically “last hired first fired”.

    ØShe sought another nomination with MTS Foods and Spice Pty Ltd using the services of a migration agent. She put her trust in that person. The nomination was refused and she believes that the refusal was due to the agent’s failure to submit a proper AMSR survey and salary. A further nomination was submitted which was refused in January 2019 but she was only recently told about the refusal. She was blindsided until she received the NOITCC. “Even though I know the nomination pertains to the employer yet common decency at least dictates that I’m informed so that I do not fall in a situation like I am in  right now knowing full well my excellent history of compliance with immigration throughout my studies and other application in Australia”. She did not see a copy of the nomination application and she had not seen a copy of the refusal so she was not sure if the nomination was refused or withdrawn. She was only told that the sponsor had not permitted the agent to show her documents relating to the nomination refusal.

    ØShe is now enrolled in a professional year program as she has completed the theoretical part. She needs to complete the training part and she has been accepted to undertake an internship with BSV Tyres Recycling Australia to be completed on 2 August 2019. This is another reason why she believes her visa should not cancelled. BSV have offered to sponsor her in an accounting role. 

    ØShe came to Australia in 2008 as a student with her husband and they have obeyed the law and complied with all visa conditions.  Her two children were born in Australia and removing them would cause hardship.

    ØShe and her husband are citizens of Nepal where there is a caste system which she believes to be discriminatory and inhumane. Her husband’s family did not approve of her initially because she came from a “lower caste”. The family considered her to be bad luck due to stolen gold being attributed to her and the death of her mother-in-law. She has been blamed for the death and considered a bad omen by her husband’s family. She fears that if returned to Nepal, she would be taken from the family and thrown out without her children, or be killed.

13. In support of the response, the applicant provided copies of the children’s birth certificates, her mother in law’s death certificate, and schedule of internship.

14. In submissions to the Tribunal dated 30 July 2019, the representative provided an overview of the applicant’s circumstances, including the refusal of two nominations by MTS Foods and Spice Pty Ltd and the pending 482 nomination for the position of accountant by BSV.  Supporting documents were also provided.

15. In the course of the hearing, the applicant did not dispute that she had ceased employment with the sponsor effective from 17 July 2018. She provided explanations as discussed throughout the decision.

16. On the evidence, the Tribunal is satisfied that the applicant has not complied with condition 8107(3)(b) and consequently 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 visa should be cancelled.

    Consideration of discretion

17. 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 visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

18. The applicant gave evidence that she came to Australia with her husband in 2008 as a primary holder of a student subclass 572 visa to undertake a diploma of hospitality which she did not complete. She then completed a Master’s degree in accounting and later a Master’s degree in nursing which she did not complete for personal reasons including having her first child, losing her mother-in-law and godfather.

19. The applicant gave evidence that she made a number of attempts to find accounting roles but was unsuccessful but eventually she was nominated by the sponsor where she worked for approximately three months. She was subsequently sponsored by MTS and the two nominations by that entity were refused.  Another entity, BSV has a pending nomination for the applicant for the position of accountant by BSV. On 1 August 2019, the Department requested further information from BSV relating to the genuineness of the nominated position. BSV has 28 days to respond to that request. Given the significance of this matter, the Tribunal decided to give the applicant until 13 September to advise the Tribunal of the outcome of that nomination.  On 10 September 2019, the Tribunal received correspondence from the representative indicating that BSV’s nomination was refused essentially on the basis that the delegate was not satisfied that the position associated with the occupation is genuine.

20. The applicant gave evidence that she was advised of the first nomination refusal by the agent soon after it had been refused. In relation to the second nomination by MTS, the applicant gave evidence that she was not aware of the refusal of that nomination up until she was contacted by the Department on 9 April 2019 concerning the cancellation of her visa. She stated that she was contacting the agent who did not advise her of the adverse outcome of the nomination. She stated that subsequent to the Departmental contact, the agent for MTS advised her that the nomination had been refused mid-January. The Tribunal questioned the applicant’s version, particularly in light of the fact that she was advised of the first nomination refusal by the agent in a timely manner. She reiterated that she did not know that the second nomination had been refused up until the contact from the Department. The Tribunal has doubts that the applicant was not specifically told of the refusal of the second nomination but in any event, the Tribunal is of the view that it is the responsibility of the visa holder to comply with visa conditions.

21. The Tribunal discussed with the applicant that it appears that she has no intention of returning to Nepal. The Tribunal indicated that she has been in Australia since 2008 on various temporary visas suggesting that she wants to remain in Australia permanently. The applicant stated that she would like to remain in Australia for another five years as it is better for her children, aged two and three years. The Tribunal indicated that in in the Tribunal’s view, the longer she stays in Australia, the more difficult it would be for the children to adjust and adapt in a different country.

22. The applicant came to Australia to study and she has completed a number of courses, including a recent internship in accounting to improve her employment potential. Although she gave an indication that she would like to remain in Australia temporarily, albeit for five years, the Tribunal’s impression is otherwise; the Tribunal is satisfied on the evidence that the applicant’s intention is to remain in Australia on a permanent basis, contrary to the initial intention of the student visa as well as the subclass 457 visa which she was granted enabling her to undertake studies and work in Australia.

23. The applicant has remained in Australia pending a nomination by another potential employer but this has been refused. The applicant has been included in a student subclass 500 visa application lodged by her husband as the primary applicant. This is inconsistent with the purpose of the subclass 457 which has a primary purpose of enabling the holder to work in Australia.

24. The Tribunal has considered the applicant’s circumstances.  The Tribunal is satisfied that there is no compelling need for the applicant to remain in Australia.  The Tribunal gives this consideration significant weight in favour of cancellation.

    ·the extent of compliance with visa conditions

25. Apart from the current non-compliance, there is no evidence before the Tribunal that there has been other non-compliance.

26. Although unrelated to visa conditions, the Tribunal accepts the submissions that the applicant has not breached the laws of Australia.

27. The Tribunal gives this aspect weight in favour of the applicant.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

28. In the course of the hearing, the applicant discussed the financial hardship that the family would suffer, as well as the instability that would be caused to the two children.

29. In written submissions to the Tribunal, the representative noted[1] that :

    ·The average monthly salary for an accountant in Nepal is lower than the applicant’s potential Australian salary.

    ·The applicant’s husband would earn $4628 working in Australia as a cook as compared with a salary in Nepal of about $2000 a month.

    ·Although the 457 visa is a temporary visa which confers no guarantees of extended or indefinite residence in Australia, there remains to be an opportunity for the applicant to lodge a permanent residence application under the employer nomination scheme after three years of working with her new employer. The cancellation of the 457 visa would adversely impact on the applicant’s opportunity to explore permanent residency.

    ·The Department of Foreign Affairs and Trade (DFAT) on Nepal report of 1 March 2019 noted that Nepal is among the poorest and least developed countries in the world. The UNDP’s Human Update, Nepal ranked 149^th out of 189 countries, falling several ranks since last update in 2016. An estimated 25% of Nepalese live below the poverty line of USD1.25 a day.

    ·According to psychological literature, a child’s emotional development is put at risk when a family moves. Moving brings about feelings of sadness due to loss of schooling, friends, trusted teachers, babysitters, and routines. Children may feel anxious and angry at the move. The degree of hardship that the family would suffer is evident in the case.

    [1] The representative attached documents referring to the average monthly salary of Cook and accountant in Nepal and Australia.

30. The Tribunal acknowledges that the cancellation of the visa would result in a degree of hardship, including, financial, emotional, psychological, and employment. The Tribunal gives those aspects weight in favour of the applicant. The Tribunal has considered the submissions relating to the children and as discussed in the course of the hearing, the Tribunal is of the view that although the children may face a degree of difficulties in adjustment, they are young and have a greater opportunity to adjust to a new environment including schooling. The Tribunal is of the view that the family’s potential return to Nepal also means that the children would have a greater opportunity to experience their cultural heritage which in the Tribunal’s opinion is a significant matter.  As to the opportunity to explore permanent residency, the Tribunal notes those submissions but it is not the Tribunal’s role to give advice about other migration options for the applicant.

31. In the case of cancellation and unless the applicant has made other arrangements, the applicant could be detained and deported from Australia. As far as the Tribunal is aware, the applicant’s husband has a pending student visa application which could potentially mean that the family could remain in Australia.  In any event, the Tribunal is of the view that the potential consequences of detention and deportation are lawful and are consistent with the intention of the legislation.

32. The Tribunal therefore gives those aspects limited weight in the applicant’s favour.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

33. The ground for cancellation arose when the applicant ceased employment with the nominating company on 17 July 2018. Subsequently, three new nominations were refused on 24 September 2018, January 2019 and 1 August 2019. The Tribunal gave the applicant a further opportunity and waited until the determination of the nomination by BSV to finalise this matter. At the date of the Tribunal’s decision, the applicant does not have an approved nomination.

34. The applicant has indicated that she was not aware of the second refusal and she only came to know about it when she received the NOITCC on 9 April 2019. As mentioned earlier, the Tribunal has some doubts about this version of events but in any case, it is the Tribunal’s view that the applicant has the responsibility to comply with conditions of the visa.

35. The applicant explained that her employment with the sponsor was terminated as a result of the company losing an important client and that she was dismissed on a “last hired first fired” basis. In submissions to the Tribunal, the representative contended that the termination of the applicant’s employment with the nominating company was beyond her control and consequently the circumstances in which the breach arose did not involve a deliberate or significant breaches by the applicant who has tried to secure a new nomination by an Australian entity. The Tribunal observes that the second nomination application was lodged on 23 October 2018, outside of the 60 day period provided by condition 8107 with which the applicant had to secure a nomination with an approved sponsor.

36. The Tribunal accepts that it is plausible that the applicant’s loss of employment with the sponsor was beyond her control but considering the whole circumstances, the Tribunal has decided to give this consideration limited weight in the applicant’s favour.

    ·past and present behaviour of the visa holder towards the department

37. The applicant responded to the NOITCC.

38. The Tribunal gives this aspect weight in the applicant’s favour.

    ·whether there would be consequential cancellations under s.140

39. The visas of the applicant’s spouse and two children aged two and three years would be cancelled in case of the cancellation of the applicant’s visa.

1. The potential cancellations under s.140 are consequences of the legislation. The Tribunal acknowledges that the cancellation of the applicant’s visa has adverse consequences on the family. The applicant’s spouse has applied for a student visa and the Tribunal at the date of its decision is not aware of any outcome in relation to that application and the Tribunal cannot make any assumptions about any potential outcome. The fact is the cancellation of the applicant’s visa leads to the cancellation of all the secondary applicants which would be stressful and disappointing for the family. There would also be practical implications in case of the family having to potentially return to Nepal. As mentioned earlier, the Tribunal is of the view that the children are young enough to adapt in Nepal, their country of nationality and cultural heritage.

2. The Tribunal has decided to give limited weight in the applicant’s favour under this consideration.

   ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

3. There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation. If the applicant chooses to remain in Australia unlawfully, she could be liable for removal and detention.  The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and in the applicant’s case, do not mean that the visa should not be cancelled.

4. The Tribunal gives this consideration neutral weight.

   ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

5. In submissions, the representative noted that “there is no specific international obligation that would be breached” as a result of the cancellation.  It is nevertheless the Tribunal’s task to consider any potential breach.

6. As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the applicant’s children who are under 18 years of age.  By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the child.

7. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life.

8. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

9. Article 3 of the CROC states:

   In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

   States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

   States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

10. The Tribunal appreciates that the cancellation of the applicant’s visa would have some impact on the children including feeling unsettled but that does mean that Australia would be in breach of the CROC or that the visa should not cancelled.

11. It is reasonable to assume that it is in the best interest of children to be with their parents, and the Tribunal is not suggesting that they should be separated or live away from their home.  The Tribunal is of the view that being young and with a limited time in Australia means that the children have a reasonable prospect of adaptability in Nepal.  In fact, the Tribunal is of the view that as the subclass 457 is not a permanent visa, it would be in the interest of the children to return to Nepal sooner rather than later.  The longer the family stays in Australia, the more difficult it would be for the children to return to, and adapt in Nepal, their home country.  Without meaning to sound unkind, the applicant and her partner would have considered the impact on their children in being in Australia temporarily and if they intended to remain permanently, then that would be contrary to the subclass 457 visa.  As to the expectation of a permanent visa, any visa that the applicant and all members of her family apply for would not be granted unless all the relevant visa criteria are met and it is speculative as to whether any permanent visa would eventually be granted.

12. The Tribunal is not satisfied that it is in the best interest of the children that the applicant’s visa is not cancelled.

13. In these circumstances, the Tribunal finds that Australia would not be in breach of the CROC in case of the cancellation.

14. The applicant has claimed that she is of a different caste. She claimed that she has been blamed for the death of her mother-in-law.  She claimed that she fears that if returned to Nepal, she would be taken from the family and thrown out without her children, or be killed. The Tribunal has noted those claims which could be interpreted as claims for protection, however, based on the material before it, the Tribunal is not satisfied that there is a real risk or a real chance of the applicant facing serious or significant harm as contemplated by the Act. In any event, the Tribunal is not aware of any protection application(s) lodged by the applicant or any member of her family where such claims can be fully assessed.

15. On the evidence before it, the Tribunal is satisfied that in case of the cancellation of the applicant’s visa, Australia would not be in breach of its international obligations.

16. The Tribunal gives this aspect weight in favour of cancellation.

    ·any other relevant matters

17. In written submissions to the Tribunal, the representative accepted that the subclass 457 visa is a temporary visa which by its nature will come to an end followed by the natural consequence of a departure from Australia, which is something to be anticipated by the temporary visa holder. The representative nevertheless argued that as the applicant’s visa would have expired on 8 March 2022, there would value in setting aside the Departmental cancellation decision. Unless the applicant complies with the conditions attached to the s.457 visa, she cannot continue to hold that visa.  Despite multiple attempts, she is not the subject of an approved nomination.  The Tribunal gives this aspect weight in favour of cancellation.

18. The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. There are factors in favour of cancellation and there are those against cancellation. The Tribunal considers the most significant factor in favour of the applicant to be the potential hardship that she would suffer in not being able to work in Australia. This however must be considered in the context of the circumstances that gave rise to the cancellation which weigh heavily in favour of cancellation.

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

    DECISION

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

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

    Antoinette Younes

    
    Senior Member