SINGH (Migration)

[2018] AATA 5300

SINGH (Migration) [2018] AATA 5300 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MOHAN SINGH

CASE NUMBER:  1714555

HOME AFFAIRS REFERENCE:                BCC2017/1520116

MEMBER:Lilly Mojsin

DATE:31 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2018 at 3:34pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – no longer a member of the family unit – relationship ceased – occupation of Cook – employer’s family special needs – compelling need to remain in Australia – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 5(1), 116, 140, 189, 345, 351, 391, 417, 454, 501J, 1.12
Migration Regulations 1994, Schedule 2 cls 457.321; r 1.12

CASES

Babicci v MIMIA [2005] FCAFC 77
MIMA v Zhang (1999) 84 FCR 258
MZYPZ v MIAC [2012] FCA 478      

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s 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)(a) on the basis that the decision to grant the visa was based wholly or partly on circumstances that no longer exist ie. the applicant was no longer a member of the family of the primary visa holder.

3. The applicant appealed that decision to this Tribunal attaching a copy of the delegate’s decision to his application.

4. The applicant appeared before the Tribunal on 18 October 2018 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant advised that he married Armandip Kaur in India in 2006. He arrived in Australia on 9 April 2009, with his wife. He was the secondary holder of a 572 student visa. On 11February 2012 he was granted a Subclass 573 visa as the secondary holder and on 12 December 2013 a Subclass 457 Temporary Skills visa as the secondary holder and on 12 May 2015 he was granted a further Subclass 457 Temporary Skills visa, as the secondary holder, which is due to expire on 12 May 2019.  

8. The applicant has been employed by Pamanjit Singh, at his cousin’s Indian restaurant since his arrival in Australia. He and his wife lived in O’Connor when they married and his cousin lives in Gungahlin.

9. His marriage broke down in 2016, his wife just wanted a divorce. She came and told him she was leaving and then she went to India for a month. Then he received the letter from her. His wife returned to Australia and she stayed somewhere else. There are no children.  He has not seen his wife since. They are divorced. She obtained the divorce in Australia.   

10. He is employed by his cousin. She pays him a salary and superannuation.  He does not live with his cousin and her family.

11. Asked about his circumstances in India if his visa were cancelled he said that in India he would work in farming or agricultural land. He had worked as a farmer in India.

12. Asked what hardship he would suffer, he said that he would have to go back. It will be hard “I am neither here nor there”.

13. Asked why he wants to stay in Australia, he said that he wants to help his cousin. He does all sorts of tasks at the restaurant.

14. Pamanjit Singh, the applicant cousin, gave evidence to the Tribunal. Asked why she cannot employ someone else, she said that her cousin has been working for 3 years and she will have to sponsor someone else.  It makes her life easy, otherwise she would have to get another person. She has a partner in her business. Her partner and husband both work in the restaurant and they look after the customer. The applicant is not involved in any of the care of her daughter.

15. Asked if she could employ somebody else if the applicant’s visa is cancelled she said that she can employ somebody else. 

16. The applicant’s advisor submitted that his client can apply for a visa offshore but he would be unlikely to obtain a 457 or its equivalent. Pamanjit Singh’s business partner has at least two or three other jobs and the applicant would suffer hardship due to his separation from her and her family as he has a close family connection with them. Whilst the Pamanjit Singh can hire somebody else it would be significantly more expensive to nominate them and to meet the new visa requirements. If the applicant were to go back to India he has no one there and he’s not particularly articulate and will not be able to obtain work in any skilled occupation.

17. The advisor asked the Tribunal if the Tribunal were to affirm the cancellation that the Tribunal refer the matter to the Minister, due to the disability of Pamanjit Singh’s daughter.

18. The Tribunal explained to the applicant that the effect of setting aside the cancellation would mean that the applicant would hold the same visa that had been cancelled. The Tribunal noted that the Department would be within their rights to cancel the reinstated visa on the basis that circumstances which permitted the grant of the visa no longer existed.

19. The applicant provided to the Tribunal a number of medical reports and other documents attesting to the applicant’s niece, Jaspreet Uppal having a severe disability.

20. A letter from the accountant of Paramjit Singh attest to the applicant being employed as a cook since March 2013 and stating that should the applicant’s visa not be renewed, as the business struggles to make a profit any loss of kitchen staff would result in the business incurring trading losses which would have an adverse impact on Paramjit Singh’s ability to support herself.

21. A letter from Paramjit Singh attests to the applicant being employed in her business. The applicant handles 90% of the responsibilities in running the restaurant and this allows her to spend more time with her 18-year-old daughter who suffers from cerebral palsy. Her husband died in 2004 and she has been caring for her daughter at home. She has another daughter who assists but she does not wish to burden the child with responsibilities as she is studying and working part-time. If she were to lose the applicant not only will it affect her daughter Jaspreet it affects her sister. By having the applicant supporting her in her work Paramjit helps her relax and focus on Jaspreet.

22. A letter from Paramjit’s older daughter attests to her sister’s medical condition. She attests to the applicant being a full-time employee helping her mother with all the kitchen work so that her mother is able to leave the restaurant early and come home to her daughter stop she used to work shift work at Canberra airport and when that happened her sister had to go with her mother to work. She quit her job at the airport to help her mother give her sister extra help. If the applicant were to leave she would have to drop out of university as well as provide full-time care for her sister.

23. A letter from the Burgmann Anglican School attests to the extensive assistance provided by the school to Jaspreet.

24. A submission by the applicant’s advisor requests the Tribunal to remit the decision on the basis of compassionate circumstances affecting Australian citizens that is the applicant’s cousin Paramjit Singh. She has a child with severe spastic quadriplegia associated with an intellectual handicap. She owns and operates an Indian restaurant where the applicant works. She is completely reliant on the applicant to cook and assist with management tasks at the restaurant. Without the applicant’s support she would either have to shut down the restaurant or find someone else to take her daughter. Paramjit Singh runs an Indian restaurant with her business partner. The applicant works in the restaurant as a cook and provides considerable support to her. The applicant works in the restaurant as a cook whilst the partner works at the restaurant at night doing front of house waitressing and she also works in an aged care home during the day. Should the visa be cancelled Paramjit Singh would have to close the restaurant and find another source of income to support her two daughters. She would find it almost impossible to obtain employment that would suit her daughter’s needs.

25. The advisor opined that the applicant has a compelling need to remain in Australia, he is required to assist Paramjit Singh run her business and look after her daughter. His cousin and employer will suffer terrible hardship if he is not in Australia to help. The applicant has strong familial and business ties in Australia. If the Tribunal does not remit then the applicant seeks that the matter be referred to the Minister for intervention.

    REASONS AND FINDINGS

26. In reviewing cancellation decisions under s.116(1)(a), the Tribunal must identify the circumstances which formed a basis for the grant, consider whether those circumstances no longer exist and then decide whether to cancel the visa.

27. The proper construction of s.116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]). The relevant circumstance is the subject of the ministerial reflection and does not extend to the Minister's own state of mind (per French and North JJ at [54]).

28. Relevantly, the definition of 'member of the family unit' as set out in r.1.12 is as follows:

    1.12 (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2) , (2A) , (6) and (7) , a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a) a spouse or de facto partner of the family head; or(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    [(d) …….

    (e) a relative of the family head or of a spouse or de facto partner of the family head who:

    (i) does not have a spouse or de facto partner; and

    (ii) is usually resident in the family head's household; and

    (iii) is dependent on the family head.

    Does the ground for cancellation exist?

29. A visa may be cancelled under s.116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

30. The applicant married Armandip Kaur in 2006. The applicant acknowledged that they are no longer in a spousal relationship and have not been in a spousal relationship since 2016. The visa was, therefore, cancelled on the basis that the circumstances which permitted the grant of the visa no longer exist. The relevant circumstances are that the applicant is no longer the member of the family unit of the primary visa holder, as set out in r.1.12. That temporary visa was due to expire in 7 months on 12 May 2019 had the visa not been cancelled.

31. The Tribunal finds, therefore, that the applicant is no longer a member of the family unit of Armandip Kaur as set out in r.1.12. As the applicant was granted the Subclass 457 visa on the basis that he was a member of the family unit of Armandip Kaur, the Tribunal is satisfied that the circumstances which permitted the grant of the visa no longer exists.

32. Accordingly, the Tribunal is satisfied that a ground for cancellation in s.116(1)(a) exists.

33. As the Tribunal has decided that a ground for cancellation exists, and that ground does not involve circumstances that require cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

34. 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 review, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These are as follows;

35. In regard to the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia. the purpose of the applicant’s stay in Australia was to live with his spouse Armandip Kaur with whom he has had no association since 2016 and from whom he is now divorced. He was granted the visa on the basis of satisfying criteria including cl.457.321. The applicant’s spouse obtained a 457 visa and the applicant met the secondary criteria of that visa. The applicant obtained employment in Australia as a cook, in a business owned by his relative, Paramjit Singh. The applicant seeks to remain in Australia to assist his relative care for her disabled daughter. However, the 457 temporary visa was granted to the applicant, for the purpose of his travel to [if required] and residence in Australia as a member of the family unit of the primary visa holder. That purpose has now ceased.

36. The Tribunal is satisfied the present intention of the applicant in continuing to reside in Australia, is not for the purpose of continuing in a relationship with the primary visa holder.  The Tribunal weighs this factor in favour of cancellation.

37. The Tribunal has had regard to whether the visa holder has a compelling need to travel to or remain in Australia.  The expression 'compelling reasons' is not defined for the purposes of PAM3. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA [2005] FCAFC 77 at [24].

38. The applicant’s advisor states that he has a compelling need to remain in Australia to assist his cousin, Paramjit in her restaurant. Paramjit has a business partner, who with her partner, manage the customer side of the business. It is claimed that it is compelling for the applicant to remain in Australia in order to work in Paramjit Singh’s restaurant. The applicant does not suggest that he has any role in caring for the child, rather it is to remain in Australia so that his relative can spend more time with her disabled child. Paramjit has a partner in the business, she states she is able to employ another cook to fulfil the applicant’s role in the restaurant, albeit it will take her additional time and expense to do so. The Tribunal is not satisfied that these are compelling circumstances. The Tribunal weighs this factor in favour of cancellation.

    ·the extent of compliance with visa conditions

39. The Tribunal accepts that the applicant has always been compliant with visa conditions. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

40. In assessing the degree of hardship that may be caused (financial, psychological, emotional or other hardship) the Tribunal accepts that the applicant has a close family connection with Paramjit Singh and her daughters. The Tribunal accepts that the applicant’s relative Paramjit Singh suffers emotional and psychological hardship caring for her severely disabled child. The applicant does not claim to assist in the day to day care of the child. The Tribunal has been provided with information that Paramjit Singh’s daughter Jaspreet is in receipt of NDIS assistance. The applicant only assists Paramjit Singh in the restaurant. As the applicant have no role in the emotional and physical care of Jaspreet the Tribunal does not accept that separation from this family would cause them any hardship. The Tribunal accepts that Paramjit Singh would experience difficulty and expense to sponsor another cook for her Indian restaurant, due to changes to the sponsorship criteria. The Tribunal does not accept that having to sponsor another cook to give Paramjit Singh more time to care for her disablied daughter or to meet the changed criteria to sponsor another Indian cook for her restaurant amounts to hardship. The Tribunal weighs these factors in favour of cancellation.

41. The Tribunal accepts that the applicant, who was an agricultural worker prior to coming to Australia with his wife, will suffer hardship on his return to India as he will most likely to only be able to obtain a job as a farm worker and not as a skilled worker. The applicant worked in Australia as the holder of a temporary visa. The Tribunal accepts that the applicant may experience difficulty in India until he finds employment in the agricultural sector and notes that he worked previously in that sector. The Tribunal is not satisfied that former temporary visa holders who return to their country of origin after living and working in Australia and who experience difficulty in obtaining employment suffer hardship. It is a consequence of temporary visas for visa holders to depart Australia when the visa ends. The Tribunal weighs this factor in favour of cancellation.

42. In regard to the circumstances in which ground of cancellation arose, the Tribunal accepts that the applicant is of the view that his separation and divorce from his wife was beyond his control, as he was unable to change or influence his ex-wife. There is no evidence before the Tribunal to suggest that the relationship broke down because of family violence. The Tribunal weighs this factor in favour of cancellation.

43. There is no evidence before the Tribunal to suggest that the applicant’s past and present behaviour towards the Department has been adverse. There is no evidence before the Tribunal that the applicant has not been co-operative with the Department. There is nothing to suggest that the applicant has been other than compliant in his dealings with the Department. The Tribunal weighs this factor neither for nor against cancelling the visa.

44. There are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes that there is no information before it that indicates that any other person currently holds a visa because the applicant held his visa. Therefore any cancellation of the applicant’s visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

45. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

46. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

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

48. The applicant has requested consideration of a referral to the Minister. The Tribunal has considered the request in relation to the decision before it; that is, as a request for consideration by the Minister pursuant to s.351 in relation to the decision to cancel the applicant's Subclass 457 visa. Section 351 gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

1. The Tribunal has considered the applicant's claims and the ministerial guidelines relating to the discretionary power set out in PAM3 'Minister's guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)' but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.decision

   DECISION

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

   Lilly Mojsin
   Member