Sunnah (Migration)

[2021] AATA 5440

Sunnah (Migration) [2021] AATA 5440 (1 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Anjanee Baye Sunnah

CASE NUMBER:  2108651

HOME AFFAIRS REFERENCE(S):          BCC2020/2926303

MEMBER:Jason Pennell

DATE:1 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 1 December 2021 at 3.58pm

CATCHWORDS
MIGRATION– cancellation – Temporary Business Entry (Class UC) visa – Subclass 457– sponsor had their approval cancelled – applicant has remained committed to performing the same occupation with the same employer – applicant may be affected by s.48 of the Act – visa was cancelled because of events beyond her control – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140

Migration Regulations 1994, Schedule 2, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 June 2021 made by a delegate of the Minister for Home Affairs 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)(g) of the Act on the basis that reg.2.43(1)(l)(iv) of the Migration Regulations 1994 applies to the applicant as the standard business sponsor, RABARL PTY LTD (‘the sponsor’), who nominated the applicant in the most recently approved nomination for the visa, had their approval cancelled and was barred for two years from making future applications for approval as a standard business sponsor and temporary activities sponsor.. 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. The applicant appeared before the Tribunal on 1 December 2021to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. As such, the hearing was held via conferencing facilities using the Microsoft Teams program.

4. Mr Alvin Gopal, Mr Brian Gopal and Ms Suruchi Bhatt appeared before the Tribunal give evidence and present arguments in support of the applicant.

5. 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

1. 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)(g) of the Act. 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.

Background and Migration History

1. The applicant was born on 27 February 1980 in Mauritius.  with the following travel and visa history. The applicant’s migration history is as follows:

Date	Visa
6 May 2009	Granted a TU-573 visa
16 June 2009	Arrived in Australia
8 May 2012	granted a TU-572 (further stay) visa
29 May 2012	Departed Australia
30 July 2012	Returned to Australia
15 July 2013	Granted a TU 572 visa
19 March 2014	Departed Australia
2 April 2014	Returned to Australia
26 September 2014	Granted a TU-572
9 November 2015	Granted a TU-572 (further stay)
8 September 2017	Departed Australia
4 October 2017	Returned to Australia
1 December 2017	Granted a UC-457
26 January 2018	Departed Australia
25 February 2018	Returned to Australia
26 December 2018	Departed Australia
1 February 2019	Returned to Australia
23 March 2021	Applied for an ENS-186 visa and was granted a Bridging visa A
28 June 2021	UC-457 visa cancelled

1. On 1 December 2017 RABARL Pty Ltd (‘the sponsor’) was approved as the applicant’s nominated standard business sponsor. The sponsor is in the business of proving educational services and trades as ‘Australian College of Agriculture and Horticulture’ (‘ACAH’).

2. On 18 December 2020, the delegate made a decision under s140M (1) of the Act to cancel the approval of the sponsor as a standard business sponsor and barred the sponsor from making future applications for approval as a standard business sponsor and temporary activities sponsor for two years.

3. On 2 June 2021, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) by email advising that they consider there to be grounds for cancellation under s.116(1)(g) of the Act because the prescribed ground for cancelling at regulation 2.43(1)(l)(iv) of the Migration Regulations 1994 applies to the visa holder.

4. Regulation 2.43(1)(l)(iv) of the Migration Regulations 1994 provides:

   Regulation 2.43           Grounds for cancellation of a visa

   (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa) the grounds prescribed are the following:

   […..]

   (l)     in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa who is a primary sponsored person in relation to a person who is or was a standard busines sponsor or party to a labour agreement (the sponsor) that:

   […..] 

   (iv)   the sponsor has been cancelled or barred under section 140M of the Act.

5. The NOICC provided the applicant an opportunity to respond within the prescribed time.

6. On 8 June 2021, the applicant provided the following material in response to the NOICC[1]:

   ·Letter from the applicant dated 3 June 2021

   ·Copy of applicant’s father’s death certificate

   ·Copy of applicant’s mother’s death certificate

   [1]    Correspondence regarding NOICC, Department eFile BCC20202926303, Doc ID 8820206

7. On 28 June 2021, the delegate cancelled the applicant’s 457 visa under s.116(1)(g) of the Act on the basis that reg.2.43(1)(l)(iv) of the Migration Regulations 1994 applies to the applicant (the delegates decision). The applicant now seeks a review of the delegates decision.

8. The applicant submitted the following material in support of their merits review application:

   ·Copy of delegate’s notification and decision record[2]

   ·Applicant’s passport[3]

   ·Applicant’s resume[4]

   ·Applicant’s submissions dated 22 November 2021[5]

   ·AAT’s decision record for Bahia (Migration) [2017] AATA 2726[6]

   ·Duplicate copy of applicant’s parents’ death certificates[7]

   [2]    Notification and decision record, Tribunal 2108651, Doc ID 8579163 and 8579164

   [3]    Applicant’s passport, Tribunal 2108651, Doc ID 8579165

   [4]    Applicant’s resume, Tribunal 2108651, Doc ID 9148929

   [5]    Applicant’s Submissions, Tribunal 2108651, Doc ID 9148929

   [6] Bahia (Migration) [2017] AATA 2726, Tribunal 2108651, Doc ID 9129794

   [7]    Death certificates, Tribunal 2108651, Doc ID 9148929

Does the ground for cancellation exist?

s.116(1)(g) - prescribed ground

1. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r. 2.43(1)(l)(iv) is relevant.

2. The applicant in her response to the NOICC acknowledged[8] that the ‘prescribed ground’ applied to her as the sponsors approval as a standard business sponsor had been cancelled and it had been barred and barred from making future applications for approval as a standard business sponsor and temporary activities sponsor for two years.

   [8]    Applicant’s letter dated 3 June 2021

3. Therefore, based on the applicant’s own submission and based on the information provided above the Tribunal finds that the prescribed ground for cancelling of the visa applies to the applicant.

4. As such, the Tribunal is satisfied that the ground for cancellation in s.116(g) 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

1. 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.

1. The applicant was granted a Temporary Working visa (457 visa) for the purposes of being employed by the sponsor in a nominated occupation as a faculty head. Despite the cancellation of the eh sponsors standard business sponsorship agreement., the visa holder has continued to work for the sponsor, which is permissible pursuant to condition 8107(3)(a)(ii).

2. On 23 March 2021, the applicant applied for an Employee Nomination Scheme (subclass186) (‘186-visa’). The occupation that the applicant nominated in her application was the same as her current employment. That is as the Education Manager (ANZSCO134411 Faculty Head). The department has not made a decision in relation to her 186-visa application.

3. The applicant has remained working for the sponsor and as such her the purpose of her stay in Australia appears to have remained the same. That is, she has remained committed to performing the same occupation with the same employer. The evidence of Mr Alvin Gopal, the sponsors director, and Mr Brian Gopal, the sponsors general manager, was that the applicant’s duties as Education Manager included the co-ordination and administration of the sponsors operations in providing educational services over two campuses. Their evidence was that she was a valuable member of their staff upon whom they relied in the operation of their business. Their evidence was that given her vital role within the organisation and her extensive corporate knowledge she would be very difficult to replace.    

4. The applicant’s evidence was that her mother and father recently passed away. As such she has no remaining family Mauritius.  Her evidence was that she has worked for the sponsor for approximately five (5) years, having started work in or about 2016. Her evidence was that she has developed a career in Australia and if she is returned to Mauritius, she will not have any contacts or family support and only limited opportunities. 

5. While the applicants stay option has essentially changed from temporary to permanent her position and role has remained the same. It is understandable that given the period she has been employed by the sponsor that she would want to make her condition of stay in Australia permanent by making application for the 186-visa. The Tribunal places some weight on this factor in the applicant’s favour.

The extent of compliance with visa conditions

1. The applicant’s evidence was that she had complied with all her visa conditions.[9] In fact, it was her evidence that her visa had been cancelled for reasons beyond her control. There is no evidence that the applicant has been in breach of her visa conditions. As such the Tribunal finds that she has complied with her visa conditions. The Tribunal places some weight on this consideration in favour of the applicant.

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

[9] Applicant’s submission dated 22 November 2021 at [20]-[21]

1. The applicant’s evidence was that her parents had recently died.[10] As a result she submitted that f she was forced to return to Mauritius she would have not have any contacts or family support. She submitted that if she was forced to return to Mauritius she would be forced to ‘start for scratch again.’ As a result, she would be unemployed.

   [10] Applicant’s submission dated 3 June 2021 at [c]

2. The Tribunal accepts that the applicant would experience hardship upon her return to Mauritius because of her parent’s having died and lack of immediate contacts to re-establish herself upon her return. Nevertheless, the applicant is educated and possess skills valuable to the operation of a business which, presumably, would be transferable to other enterprises in Mauritius. The applicant has shown herself to be hardworking and resourceful in her employment. As such, the Tribunal finds that any hardship she may suffer upon her return to Mauritius would be limited and able to be overcome because of her own resourcefulness and her ability to apply herself to the task at hand. As such the Tribunal gives this consideration no weight in the applicant’s favour.

3. However, the Tribunal notes that the applicant’s visa is due to expire on 1 December 2021 (the date of this decision). As such, the applicant’s visa will expire notwithstanding the Tribunals decision. Nevertheless, the Tribunal has considered the consequences of cancelling the applicant’s visa and accepts that if her visa is cancelled, she will be affected by s.48 of the Act which will give her limited options to apply for another visa in Australia. The Tribunal notes that the applicant has made application for a 186 visa which is yet to be determined by the department. The tribunal is of the view that, all the circumstances, the applicants 186 visa application should be determined on its merits and not be affected by the cancellation of the applicant’s visa pursuant to s.48 of the Act. Accordingly, the Tribunal places great weight on this consideration in the applicant’s favour.

Circumstances in which ground of cancellation arose.

1. The circumstances in which the cancellation arose are detailed above. The Tribunal accepts that applicant’s evidence that her visa was cancelled because of events beyond her control. Nevertheless, the applicant visa was cancelled by operation of Regulation 2.43(1)(l)(iv) of the Migration Regulations. As a result, the Tribunal gives this consideration no weight in favour of the applicant.

Past and present behaviour of the visa holder towards the department

1. There is no information before the tribunal to suggest that the applicant has been uncooperative with the department or the tribunal. As such, the tribunal places some weight on this consideration in favour of the applicant.

Whether there would be consequential cancellations under s.140

1. The circumstances of this case are such that no person’s visa would be consequentially cancelled under s.140 of the Act. The Tribunal places no weight on this consideration.

Any mandatory legal consequences,

1. The applicant was granted a Bridging visa A in association with the lodgement of her 186-visa application. If the Tribunal made an order affirming the delegates decision the applicants Bridging visa would cease. As a result, the applicant would become an unlawful non-citizen and may be liable for detention under s.189 of the Act. Nevertheless, she would be able to apply for another Bridging via pending the resolution of her 186-visa application. However, as mentioned above if the Tribunal affirms that delegates decision, the applicant may be affected by s.48 of the Act.  Therefore, in circumstances where the applicant’s visa will expire on 1 December 2021 (the date of this decision) if the delegates decision is affirmed, the applicant may be denied an opportunity of having her 186-visa application determined on its merits by reason of ss.48 of the Act. As referred to above, the Tribunal places great weight on this consideration in the applicant’s favour.  

Any international obligations.

1. There is no information which indicates that Australia international obligation are engaged in this case. As such the tribunal gives this consideration no weight.  

Other relevant matters.

1. The Tribunal is not aware of any other relevant matter in this case.

CONCLUSION

1. Therefore, having considered all the circumstances, the Tribunal concludes that the visa should not be cancelled

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Jason Pennell
Senior Member