Sultana (Migration)

[2021] AATA 5426

Sultana (Migration) [2021] AATA 5426 (16 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Farheen Sultana
Ms Shanza Madhat Khan
Ms Alfiya Binte Ali
Ms Afrah Zaina Ali

CASE NUMBER:  2017722

HOME AFFAIRS REFERENCE(S):          BCC2020/1466674

MEMBER:Vanessa Plain

DATE:16 December 2021

PLACE OF DECISION:  Melbourne

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 Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 16 December 2021 at 1:55pm

CATCHWORDS
MIGRATION – cancellation –Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant ceased employment exceeded 60 consecutive days – employer’s decision to restructure its business was a matter beyond the control of the applicant – employer is approved as a standard business sponsor and currently employers the applicant –– breached condition 8607 – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116,140, 348
Migration Regulations 1994, Schedule 2, cl 482.212

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 8 December 2020 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(a) on the basis that the primary applicant failed to comply with condition 8607(5) attached to their visa. The dependant applicants’ visas were cancelled as a consequence of the primary applicant’s visa cancellation. 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 25 June 2021 to give evidence and present arguments.  The Tribunal also received evidence from Mr Glenn Mohammad, the director of Zero Technologies Pty Ltd and Zero Mobile Pty Ltd.  

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. 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

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. The Delegate’s decision record contends that the applicant has not complied with subclause (5) of condition 8607 attached to their subclass 482 (Temporary Skill Shortage) visa, which states:

   “8607

   (5) If the if the holder ceases employment the period during which the holder ceases employment must not exceed 60 consecutive days:

   […]

9. The Delegate’s decision record of 8 December 2020 provides as follows:

   “The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is ZERO TECHNOLOGIES PTY LTD (‘the sponsor’), whose nomination was approved on 17 October 2019. The sponsor has advised the Department that the visa holder ceased employment with them effective 24 April 2020. This appears to indicate that the visa holder has not complied with condition 8607(5) because the period during which she ceased employment has exceeded 60 consecutive days. Based on this information, there appear to be grounds for cancelling her visa under s116(1)(b) of the Act because it appears the visa holder has not complied with condition 8607.”

10. A Notice of Intention to Consider Cancellation dated 30 October 2020 (NOICC) was sent to the applicant at their nominated address.  The applicant provided a response to the NOICC dated 9 November 2020.  

11. On 9 June 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 25 June 2021.  The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case. 

12. The applicant provided the following documents to the Tribunal:

    (a)The delegate’s decision record

    (b)Current contract of employment

    (c)Written submissions of the migration agent

    (d)Bank statements

    (e)Statements of the primary applicant dated 9 November 2020 and 10 December 2020 respectively   

13. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that their visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that they had not complied with the conditions of their visa. Specifically, the 8607 condition to which their visa was subject, prescribes in 8607(5) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

14. The Tribunal further explained to the applicant that, if 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.

15. As at the hearing, the applicant stated that she did not believe that she breached condition 8607 as her employer underwent a restructure and had submitted a new nomination application in the new entity in which she was employed and undertaking the same tasks.  If that was not appropriate, the breach was due to a circumstance beyond her control because it was her employer’s decision to restructure.  Her employment with her previous employer was terminated on 24 April 2020 and she was unable to resume employment with her current employer, until a decision was made by the Tribunal on her employer’s nomination refusal application.  

16. The Tribunal notes that by decision made on 8 December 2021 in Tribunal Case Number 2005423, the Tribunal approved the applicant’s employer nomination application.      

17. Based on the applicant’s evidence, the Tribunal finds that the applicant ceased employment with the sponsoring business on or about 24 April 2020.  The Tribunal further finds that the period during which the applicant ceased employment exceeded 60 consecutive days.  Accordingly, the Tribunal finds that the applicant did not comply with condition 8607(5).

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

    Consideration of discretion

19. 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’.

20. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1] See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for

21. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    Purpose of applicant’s travel to and stay in Australia

22. The purpose of the Temporary Skill Shortage (subclass 482) visa is for skilled workers from outside Australia who have been sponsored and nominated by an approved business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Mobile Technologies Pty Ltd as a statistician on a temporary basis.

23. The applicant’s employer restricted their business operations in Australia and incorporated a new entity, Zero Mobile Pty Ltd.  The applicant continued the same work at Zero Mobile, which submitted a nomination to the Department in respect of the applicant’s employment, which was ultimately refused by the Department and subsequently approved by the Tribunal on 8 December 2021.      

24. The Tribunal places significant weight upon the fact that the applicant’s employer’s decision to restructure its business was a matter beyond the control of the applicant and the only reason she was ultimately in breach of her visa condition was due to the fact that the applicant’s subsequent employer had its nomination refused by the Department within 60 days of the applicant’s former employer terminating her employment.  For all intents and purposes, the applicant’s role has remained the same and her former and current employer are related entities. 

25. The Tribunal finds that, as at the time of this decision, the applicant has a valid contract of employment with Zero Mobile Pty Ltd, whose nomination was approved by the Tribunal on 8 December 2021. 

26. The purpose of granting a temporary skill shortage visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. A chef is a position listed in the relevant list of occupations.  The subclass 482 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.

27. The Tribunal finds that this purpose presently exists as the applicant has taken up employment with their proposed sponsor.   

28. The Tribunal affords this consideration significant weight in favour of not cancelling the visa.

    The extent of compliance with visa conditions

29. The non compliance with a visa condition arose when the applicant ceased working with their sponsoring employer in April 2020.  This was in fact a technicality due to a change in business structure of the applicant’s former employer, rather than a change in actual employment.  The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 60 days. She took all reasonable steps to do so as her current employer informed her it had lodged the necessary paperwork to obtain a nomination to sponsor her in a new entity. 

30. The Tribunal is satisfied that the applicant took honest and reasonable steps when she continued in her role in her employer’s new entity.     

31. The applicant informed the Tribunal that they have also complied with all other visa conditions. The Tribunal has no reason not to accept that evidence.

32. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The circumstances in which the ground for cancellation arose

33. The applicant ceased their employment at the sponsoring business in April 2020.  The Department did not proceed with the visa cancellation until 8 December 2020.  The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with another business sponsor.

34. Importantly, the Tribunal accepts that the circumstances in which the ground for cancellation arose were not the fault of the applicant due to the fact that her previous employer simply restricted its business operations and employed her in the same role via a related entity and didn’t receive a nomination approval within 60 days.    

35. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

36. The Tribunal acknowledges the migration agent’s written submissions and the applicant’s two written statements as to the hardship and difficulty the applicant will suffer if her visa remains cancelled.  The applicant is responsible for the welfare of her minor children who are dependant upon her for their wellbeing, they are also advanced in their schooling in Australia.

37. Balanced against any potential hardship to the applicant and their family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a subclass 482 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a subclass 482 visa is to allow skilled workers to come to Australia and work for an approved business for a temporary period of time.

38. However, taking into account all the above matters, the Tribunal acknowledges that the applicant and particularly her minor children will suffer some hardship and gives this consideration some minor weight against cancelling the visa. 

    The visa holder’s past and present behavior towards the Department

39. The applicant responded promptly and in detail to the NOICC.  Her evidence at hearing was consistent with the reasons set out in the NOICC.    

40. There is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

41. The Tribunal gives this consideration some minor weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

42. The dependent applicants are dependent upon the primary applicant’s visa.  The cancellation of the applicant’s visa results in a consequential cancellation for the dependent visa holders under s140 of the Act.  

43. As this cancellation will impact the visa status of the dependant visa holders, the Tribunal gives this consideration a little weight against cancelling the visa.

    Legal consequences of a decision to cancel the visa

44. The applicant is currently on a bridging visa as a result of the current review process. 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 which will allow them to remain in Australia. If that is the case, they 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.

45. The Tribunal observes that the applicant’s Subclass 482 visa was cancelled under s.116(1)(b) of the Act because they breached the 8607 condition imposed on their visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 482 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa The applicant’s employer, Zero Mobile Pty Ltd, is an employer who is approved as a standard business sponsor and currently employers the applicant. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

46. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

47. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia.  These are mandatory and intended consequences of the legislation.  However, given the matters set out above, the Tribunal considers that theses consequence in the circumstances of this case would be manifestly unfair.

48. The Tribunal therefore gives this consideration some weight against cancelling the visa.

    Australia’s international obligations

49. 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).

50. The applicant’s minor children live in Australia and are dependent upon her and her visa.  As the children will have their visas cancelled, the Tribunal has considered the Convention on the Rights of the Child (CRC) to which Australia is a signatory. Australia has an obligation to ensure that all actions concerning children are taken as a primary consideration for the best interest of the child. In relation to cancellation actions, this does not preclude cancellation of a visa but requires the delegate to turn their mind to the consequences of the cancellation, specifically whether a child will be separated from their family unit.

51. In this case, the Tribunal places significant weight upon the fact that the applicant’s children are advanced in their schooling in Australia.  The Tribunal affords this consideration greater weight than the fact that the family will not be separated as a result of the visa cancellation. 

52. The Tribunal gives this consideration a little weight against cancelling the visa.

    The impact of any victims of family violence

53. There is no evidence before the Tribunal regarding this issue.

    Any other relevant matters

54. There is evidence before the Tribunal as to the difficulty in returning to the applicant’s home country due to Covid-19.

55. The Tribunal acknowledges that the applicant may experience difficulties in returning to her home country due to the travel restrictions in place as a result of the COVID-19 pandemic. The Tribunal observes that in this regard the Government has put in place several contingency options for visa holders that find themselves in Australia with limited options for returning home and that relevant information is available on the Department’s website.

1. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.  There are no other relevant matters before the Tribunal. 

2. The matters set out above do not reveal any bad faith on the part of the applicant, having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa.

3. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

4. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

5. 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.

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

   Vanessa Plain
   Member

   
   
   

Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration
[2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for
Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for
Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship

[2007] FMCA 1492 at [55].