Thanaletchumy (Migration)

[2022] AATA 2306

Thanaletchumy (Migration) [2022] AATA 2306 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kanniah Thanaletchumy
Ms Manimala Maniam

CASE NUMBER:  2103411

HOME AFFAIRS REFERENCE(S):          BCC2020/2234762

MEMBER:Michael Cooke

DATE:7 June 2022

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 second named applicant.

Statement made on 07 June 2022 at 12:32pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – failure to secure alternate employment – COVID-19 pandemic – victim of unscrupulous work practices – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

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 12 March 2021 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 breached condition 8107(3)(b). The basis for the cancellation of the other applicant’s visa was a consequential cancellation under section 140 of the Act: 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

4. The Tribunal sent the applicant an Invitation pursuant to s.359(2) of the Act as follows:

   INVITATION TO PROVIDE INFORMATION – MS KANNIAH THANALETCHUMY AND MS MANIMALA MANIAM

   I am writing on instruction from the Member conducting your review, in relation to the applications for review made by you in respect of decisions to cancel Subclass 457 (Temporary Work (Skilled)) visas.

   You are invited to provide the following information in writing:

   ·     Your employment status.

   ·     Whether or not you have a new or potential sponsor.

5. The applicant responded to the Invitation on 16 November 2021 as follows:

   To whom it may concern,

   I am currently working and I would like to request of time an extension as because of COVID businesses have been closed and I haven't had the opportunity to talk to much owners. It will take sometime before I can talk and arrange for my sponsorship. I have spoken to a few people and they all are waiting for business to pick up after COVID.

   It will be greatly appreciated if you could give me some more time.

   Regards,

   Thanaletchumy Kanniah

6. Following her response to the Invitation the primary applicant requested additional time to respond more fully to the Invitation.

7. The Tribunal separately indicated in an email to the applicant that:

   “the Tribunal will permit you to respond to the “Invitation to Provide Information” at your scheduled hearing date on 25 November 2021”

8. The applicants appeared before the Tribunal on 25 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter (Ms Manimala Maniam). The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

9. 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

10. 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?

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

11. 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(3)(b) attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which they cease employment must not exceed 60 consecutive days.

12. On 27 August 2020 the sponsor advised the Department that the applicant ceased employment with them on 1 August 2020. The applicant stated to the delegate that she was not made aware that her employment had terminated with the sponsor and was yet to receive any verbal or written notification. Apparently, her last salary was drawn on 5 August 2020 and she was “told not to go in to work but wait for further instructions”. Furthermore, information before the delegate indicated that the applicant was provided with a letter from her employer dated 18 May 2020, providing “two weeks notice hereby to find another sponsor or look at alternate solutions”. This letter appears to have been signed by the sponsor and the applicant on 21 May 2020.

13. The applicant informed in oral evidence in the hearing that despite the above she had returned to work at the same motel but then subsequently no longer worked there.

14. The sponsor had advised the Department that the applicant ceased employment with them effective 1 August 2020. She has contradicted this claim and insisted to the delegate that her cessation of employment should be deemed 28 January 2021 as she was informed of her employment cessation “officially through a third party” within the NOICC from the Department. She further stated that she was not made aware that she had ceased work with her employer either “verbally or in writing” regarding her position with the business. She also stated she has not received “any notification or communication including Employment Termination Payment”. In oral evidence her daughter further indicated that they had made a formal complaint to Fair Work Australia. The Tribunal requested the parties to furnish this document to the Tribunal. At time of writing, they have not done so. The applicant was also given further time to find a potential sponsor. Despite this offer she has not communicated any further information to the Tribunal at time of writing.

15. The applicant’s employment history indicates she has not complied with condition 8107(3)(b) because the period during which she ceased employment has exceeded 60 consecutive days. Based on this information, there are grounds for cancelling the visa under s116(1)(b) of the Act because the applicant has not complied with condition 8107.

16. 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

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’.

    Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:

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

18. The applicant was granted the Temporary Work (Skilled) (Subclass 457) visa on 11 September 2018 for the purpose of undertaking employment in the nominated occupation with the approved sponsor. The sponsor subsequently notified the Department that the applicant ceased employment with them on 1 August 2020. The applicant confirmed she has not worked since this date for the sponsor and her last payslip was received on 5 August 2020. As such, the applicant has not had a new approved nomination in place and has not worked in the nominated occupation for a period exceeding 60 consecutive days.

19. In response to the NOICC, the applicant stated that she has a dependent daughter studying in Australia. She stated that she needs to get a job so she can support her daughter with tuition fees and cost of living. Whilst the Tribunal acknowledges the applicant’s intention to work, she has not provided any evidence of her attempting to seek and secure new employment with an approved sponsor despite the ample opportunity presented to her by the Tribunal at the hearing.

20. It is apparent that the applicant’s original purpose in Australia was to work in her nominated occupation. The evidence discloses that she has done so with an approved sponsor. Since officially ceasing employment she informed in oral evidence that she returned to work with her sponsor, but this employment has also subsequently ceased.

21. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

    ·the extent of compliance with visa conditions

22. The applicant has not complied with condition 8107 of her Temporary Work (Skilled) visa by ceasing employment with the sponsor for more than 60 consecutive days. The applicant has not had an approved nomination since her employment ceased with the sponsor on 1 August 2020. Apart from this issue the Tribunal is not aware of any other non-compliance with visa conditions.

23. The Tribunal give this consideration minimal weight against cancellation.

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

24. The applicant has expressed concern that she is currently facing various hardships as a result of her unemployment circumstances. She has specifically indicated that her daughter is currently undertaking studies and is “financially and emotionally dependent” and that she must “get a job to support her tuition fees and cost of living”. She has reiterated this belief in oral evidence at the hearing. It is apparent that the applicant has already faced the hardship of cancellation of her visa along with her daughter and she has claimed she would suffer further emotional, financial and/or other hardship as a result of any affirmation of the cancellation.

25. The applicant is a ‘Chef’ and has indicated that finding suitable employment during the COVID-19 pandemic was onerous. Nevertheless, she indicated in oral evidence that she had been working in her profession. Despite this information and further opportunity provided by the Tribunal to find a sponsor - not to mention the decrease in the nationwide impact of the COVID19 pandemic (such as lockdowns) – she has not been able to identify a potential or approved nominator/sponsor. This is despite the Tribunal giving her time to do so post hearing (25 November 2021).

26. The Tribunal gives this consideration some weight against cancellation.

    ·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’.

27. The circumstances which led to the grounds for cancellation were that the applicant ceased employment with the sponsor and has not had a new nomination approved in relation to an alternative sponsor within 60 consecutive days.

28. In response to the NOICC, the applicant stated that she was not given prior notice but informed on this date to await further instruction. However, despite the applicant’s claims that she was unaware of the employment ceasing, information before the Department identified a “Closure of Restaurant” letter dated 18 May 2020 sent from the employer and which was tendered as a result of COVID-19. Noteworthy is the fact that the applicant’s signature appears to be shown at the bottom. She has suggested to the Tribunal and delegate that despite this that she was unaware of her employment ceasing. The Tribunal considers that the applicant has had ample time to secure employment with an approved sponsor.

29. The applicant also claimed (in oral evidence) that she had been manipulated within her employment and that she “must reimburse them $1,000 per fortnight (in cash) for the privilege of the visa sponsorship”. She has provided the Department, apparently, with evidence of cash withdrawals from her bank account in the days following her salary deposits. She informed (in oral evidence) that she reported these breaches to Fair Work Australia (FWA). The Tribunal was naturally concerned that the applicant might have been the victim of unscrupulous work practices and was prepared to give her claims some positive weight - in mitigation. However, despite her claims, no FWA paperwork confirming this activity has been furnished to the Tribunal since a request to do so at the hearing on 25 November 2021.

30. The Tribunal concedes that securing a new nomination in her occupation as a ‘Chef’ during the COVID-19 pandemic may have been difficult for the applicant. The Tribunal is aware of the impact of COVID19 on the applicant and that it was a circumstance ‘beyond her control’ at the time. The Tribunal gives this aspect positive weight. However, despite this she has made claims of having secured alternate employment in the hearing. The reality (at time of writing) is that she has not provided any supporting evidence of a potential or actual new sponsorship – despite the opportunity presented on 25 November 2021. She has had over 6 months since the hearing to secure a new sponsor/nominator and to apply for and be granted a new visa or depart Australia. There is no evidence she has not done so at time of writing.

31. On balance, the Tribunal gives this consideration significant weight in favour of cancellation.

    ·past and present behaviour of the applicant towards the Department

32. There is no evidence to suggest the applicant has been uncooperative with the Department or with Departmental staff.

33. The Tribunal gives this consideration some weight against cancellation.

    ·whether there would be consequential cancellations under s.140

34. The applicant has the following dependant whose visa would, or may, be cancelled under section 140 of the Act:

    ·MANIAM, MANIMALA (22/06/1996, F), CID 57239040837

35. The secondary visa was granted on the basis that this person is ‘a member of the family unit’ of the applicant, who is the primary applicant. If the applicant’s visa cancellation were affirmed this will result in a consequential cancellation (by operation of law under section 140 of the Act) of the secondary visa applicant.

36. The Tribunal gives this consideration some weight against cancellation.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the applicant 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

37. If the Tribunal affirms the cancellation of her current visa, the applicant and her dependant daughter will become unlawful non-citizens and may be liable for detention under section 189 of the Act. However, the applicant may be eligible to apply for a Bridging Visa E to enable them to remain lawful while making arrangements to depart Australia. The applicant would also be affected by section 48 of the Act, which would cause her to have limited options if she were to apply for further visas while in Australia.

38. Importantly, the cancellation under these grounds does not impose a Public Interest Criterion 4013 risk factor on the applicant, so cancellation will not prevent her from being granted a temporary visa in the future.

39. The Tribunal gives this consideration some weight against cancellation.

    ·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].)

40. The Tribunal notes that the applicant’s student daughter is not a minor. The Tribunal finds that the circumstances of this case would not engage Australia’s international obligations regarding family unity and best interests of the children and the cancellation of the visa would not lead to a breach of Australia’s international obligations.

41. Therefore, the Tribunal gives this consideration some weight for cancellation of the visa.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

42. Not applicable.

    ·any other relevant matters

43. None

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

    DECISION

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

46. The Tribunal has no jurisdiction with respect to the second named applicant.

    Michael Cooke
    Senior Member