Somal (Migration)

[2021] AATA 2822

Somal (Migration) [2021] AATA 2822 (25 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ramandeep Kaur Somal
Mr Mandip Singh Litt
Miss Noorpreet Kaur Litt

CASE NUMBER:  2100654

HOME AFFAIRS REFERENCE(S):          BCC2020/1847559

MEMBER:Noelle Hossen

DATE:25 June 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

The second and third named applicants have applied for a visa as a result of being a member of the first named applicant’s family unit and their application depends on the determination of the first named applicant’s Application.

Statement made on 25 June 2021 at 1:49pm

CATCHWORDS
MIGRATION – cancellation – Subclass 482 – Temporary Skill Shortage visa – ceased employment with her approved sponsor – period of 60 consecutive days – second sponsorship after first sponsor ceased trading – applicant unaware of change of ownership – second sponsor ineligible to sponsor applicants – applicant awaiting nomination approval from Department of Training and Workforce Development (state Migration Western Australia) – circumstances beyond applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140(1),116(1)(b), 348
Migration Regulations 1994

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 January 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage 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 had ceased employment with her approved sponsor as at 21 June 2020. 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.

4. The applicants appeared before the Tribunal on the 17 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

6. The only person who gave evidence at the hearing was the first named applicant (hereinafter referred to as the applicant).

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)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?

   s.116(1)(b) - non-compliance with conditions

9. 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 8607 attached to the applicant’s visa. This condition requires that the visa holder remains employed for a period and must not be unemployed for a period not exceeding 60 days.

10. The Delegate of the Department notified the applicant on the 17 December 2020 of their intention to cancel their visa. The applicant replied to the Department on the 27 December 2020.

11. The Reasons for the cancellation of the Visa was set out in the Decision of the Department and it states as follows:

    “The visa holder’s visa was granted subject to condition 8607, which affords the visa holder 60 days to secure a new sponsor if they cease employment with their most recently approved sponsor. The visa holder ceased employment with Aratana Pty.Ltd (trading as Maharaja Indian Bistro) on the 21 June 2020.Information available to the Department indicates that there has been no new nomination lodged on the visa holder’s behalf since the cessation of the sponsor Aratana Pty.Ltd. While the visa holder claims that they believed that they remain compliant with condition 8607 by  not working for another entity or organisation and because they had applied for another visa to remain lawful in Australia, they also acknowledge “that the Department has every right to “ cancel their visa.”

12. The Tribunal accepts the findings of the Department that at the time that the Department considered the matter the applicant had ceased employment for a period of 60 consecutive days.

13. 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 visa should be cancelled.

    Consideration of discretion

14. 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:

15. The applicant arrived in Australia in 2009 as a student of hospitality. As at the date of the hearing the applicant had lived in Australia for a period of 12 years. She obtained her temporary Work Skilled Subclass 457 visa as a cook. She worked for the same employer Gury Ki Mehar Pty Ltd for 4 years until the 10 July 2017.

16. Unfortunately, the restaurant closed so her nomination changed to Khabbra and Mahal Pty Ltd trading as the Rise café and restaurant on the 2 December 2013.  Unfortunately, that restaurant closed as well.

17. In March 2015 she was nominated by Bassi Corporation Pty Ltd trading as the Maharaja Indian Restaurant.

18. On the 9 May 2017, Bassi Corporation Pty Ltd trading as Maharaja Indian Restaurant nominated the applicant for a subclass visa 186 based on the Temporary Residence Transition stream after completing 2 years of her employment as a cook. The nomination was unsuccessful and she was notified on the 21 August 2017.It appeared that despite the fact that she used the services of a migration agent that the documents lodged in support of her application did not satisfy the requirements of the Department.

19. Bassi Corporation Pty Ltd lodged an appeal with the AAT to review the decision of the nomination of the Refusal as well as the application of the applicant.

20. On the 10 July 2017 the 457-visa ceased, and her bridging visa A came into operation.

21. Bassi Corporation Pty Ltd sold the business, in or about December 2018 to Aratana Pty Ltd and she was nominated by the new entity. She commenced her employment under the new visa for the new nomination from the 1 February 2019 until the 21 June 2020.

22. The applicant says that she was unaware of the financial dealings of her employers and did not know that the company had changed hands until the third week in June 2020.

23. On the 29 June 2020 an officer of the WA Sponsor Monitoring Unit of Australian Border Force emailed the applicant to advise her that Aratana Pty Ltd was no longer an approved sponsor from the 29 June 2020 and may no longer sponsor persons for temporary work visas.

24. As at the 11 June 2020 the applicant had lodged her State Nominated Skilled Regional (Provisional) (subclass 491) visa application together with her dependant applicants and prior to her employment being terminated by her employer or notification by the officer from Border Force.

25. She received her nomination approval from the Department of Training and Workforce Development (state Migration Western Australia) the applicant was invited through skill Select Program to apply for a state nominated Skilled work regional Visa.

26. The applicant is waiting for this application to be processed and as a result of which she does have a need to remain living in Western Australia.

27. The applicant and her family have been living in Australia for 12 years and the circumstances leading to her lack of employment was beyond her control.

28. She has now received a nomination approved by the State Government of Western Australia through the Department of Training and Workforce and is awaiting the result of her application from the Department of Immigration.

29. The Tribunal places significant weight on the facts as stated in paragraph 24 to 28 in favour of the applicant’s case and not cancelling the visa.

    the extent of compliance with visa conditions:

30. The applicant has complied with the visa conditions, save and except, for the conditions of the visa the subject of the review, being the subject of matters out of her control.

31. The Tribunal places weight in favour of the applicant’s case for the fact that the applicant has been compliant with the conditions of her various visas whilst living in Australia for the last 12 years.

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

32. As the applicant has lived in Australia for a long period of time with her family it will be difficult for them to relocate to India during the pandemic.

33. The applicant has worked hard during her time in Australia and had it not been for the actions of her nominated sponsor is likely to have had been successful in transitioning into a more permanent arrangement in Australia.

34. The hardship would be likely to be financial, and emotional and particularly for their child who is likely to be taken away from her peers at school in Australia .Their daughter Norpreet Kaur Litt  was born in Australia on the 8 February 2011.Australia is the only country that she has grown up in, at this stage, and it will be a difficult situation for her to relocate in India.

35. The Tribunal weighs those facts in favour of the applicant’s case and for not cancelling the visa.

    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:

36. The grounds for the cancellation that arose were beyond the applicant’s control. Prior to receiving notification from the officer at Border Force regarding her nomination the applicant had applied for a nomination in the scheme available for the state of Western Australia.

37. Her application was approved, and she is still waiting for her Application to be determined by the Department of Immigration.

38. The Tribunal weighs those factors in favour of the applicant’s case and for not cancelling the visa.

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

39. There is no evidence before the Tribunal that the applicant has not complied with the demands of the Department or behaved in any way that could be deemed as inappropriate towards the Department.

40. The Tribunal places weight in favour of not cancelling the visa.

    whether there would be consequential cancellations under s.140

41. Whilst the applicant’s husband and child were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from her husband and daughter.

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

42. The legal consequences are that if the visa is cancelled their Bridging visa will automatically cease as a result of the cancellation and they may become unlawful citizens.

43. The applicant and her family would be affected by Section 48 of the Act which would cause them to have limited options if applying for further visas in Australia. The visa holder may be eligible to apply for a Bridging Visa E while allowing them to stay lawfully in Australia whilst awaiting the outcome of the pending visa application.

44. The Tribunal places some weight in favour of the applicant’s case and against the cancellation of the visa.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

45. The policy guidelines require an assessment as to whether there would be a breach of Australia’s 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 children pursuant to Article 3 of the Convention on the rights of a child (CRC), and the International Covenant on Civil and Political Rights (ICCPR)

46. The applicant has a child who is the listed as a dependent on the visa. The child is under the age of 18 years and it is unlikely that the child will be separated from her family if the visa is cancelled.

47. The Tribunal places some weight against cancelling the visa.

48. Considering the circumstances, the Tribunal concludes that the visa should not be cancelled

    DECISION

49. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

50. The second named applicant and the third named applicant have applied for a visa as a result of being a member of the family unit of the first named applicant and therefore their application is determined by the first named applicant’s Application.

    Noelle Hossen
    Member