Varghese (Migration)

[2019] AATA 3235

Varghese (Migration) [2019] AATA 3235 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Navya Varghese
Mr Bineesh Priestly

CASE NUMBER:  1808769

HOME AFFAIRS REFERENCE(S):          BCC2017/1809155

MEMBER:Stavros Georgiadis

DATE:4 March 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 4 March 2019 at 5:15pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment with the sponsor over 90 days – twice active in seeking new employment within the prescribed time period – sponsor withdrew nomination awaiting Department – second delay in approving nomination – financial support to family in India – decision under review set aside     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, 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 6 November 2017 made by a delegate of the Minister for Immigration and Border Protection 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) of the Act on the basis that the applicant Mrs N Varghese, did not comply with visa condition 8107 by having ceased employment with her last approved sponsor for a period exceeding 90 consecutive days. 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 applicants appeared before the Tribunal on 16 January 2019 to give evidence and present arguments. The applicants were represented by a registered migration agent but their agent did not attend the hearing.  

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

6. 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) and visa condition 8107. 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

7. 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 is attached to the applicant’s visa. This condition requires relevantly, that for other than an exempted occupation (not evident in this case) an applicant, while they continue to hold a 457 visa can only lawfully work in Australia for either the sponsor or an associated entity, and if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days: 8107(3)(b).

8. The standard business sponsor who nominated the applicant in the most recently approved nomination as a Cook for her 457 visa at the time of the delegate’s decision, was Pepper Bite Pty Ltd ATF Pepper Bit Unit Trust (the sponsor).  The Tribunal finds the applicant’s Temporary Work (Skilled) (subclass 457) visa was granted on 7 January 2014. She was nominated to work as a Cook. The grant notice confirms the named sponsor as Pepper Bite Pty Ltd ATF Pepper Bit Unit Trust. The visa was subject to conditions that included requirements of work limitation condition 8107.

9. The Tribunal notes the applicant’s written submissions dated 7 January 2019 provided under cover letter of 8 January 2019. The Tribunal accepts the oral evidence and submissions (as clarified at the hearing) that the applicant’s employment with the sponsor ceased on 7 October 2016 when the applicant tendered her written resignation. The material 90 consecutive day period therefore, consistent with the delegate’s findings, extends to 5 January 2017. The Tribunal accepts the oral evidence that the applicant then commenced employment as a Cook with Wild Horse Pty Ltd ATF The Wild Horse Trust, trading as Noosa Junction Seafood Market (Wild Horse) in December 2016 that relates to a previously lodged nomination. That nomination was withdrawn by Wild Horse on 29 September 2017 due to being advised, according to the applicant’s oral evidence that the nomination application was taking too long and was unlikely to be successful.  

10. On 20 October 2017, the applicant signed an employment contract with Amala Australia Pty Ltd (the new sponsor) for a position of Cook. A nomination application subsequently lodged on the same day has yet to be determined by the Department although it has been granted priority assessment. The visa holder remained onshore and then lodged a related application on 24 October 2017 for a nomination of Cook by the new sponsor in respect of Class RN, Subclass 187 visas.

11. Therefore, the Tribunal finds that the applicant’s employment with the sponsor who nominated the visa holder in the most recently approved nomination terminated on 7 October 2016 and was not re-employed by 5 January 2017.  It follows that at the time of the delegate’s decision, the applicant had ceased employment with the sponsor for more than 90 consecutive days.

12. The occupation listed in the nomination of Cook, is not one specified in the relevant instrument referred to in paragraph 8107(3A) to exempt the visa applicant from having to comply with the requirements of paragraph 8107(3)(a).

13. As aforementioned, the Tribunal accepts that the applicant is now again employed as a Cook with a new sponsor (pending nomination approval) but there is no association between the new sponsor and the former nominated sponsor. As the applicant can only lawfully work in Australia for either the sponsor or an associated entity, in light of the above, the applicant has breached condition 8107 - specifically 8107(3)(b) of condition 8107 attached to her visa.

14. 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 power to cancel the visa should be exercised.

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances, including but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

16. The applicant’s written submissions dated 7 January 2018 (actually 2019) set out (in part) as follows:

    ... “1. I have been in Australia for more than 10 years. I came in student visa and its granted-on 13 Aug 2008.

    2. I have completed certificate III in commercial cookery and diploma of hospitality after that I have done advanced diploma of hospitality management then after that have done diploma of business.

    3. I have applied for my 457 visa through the company called (Indian taste buds) and my visa granted on 07 Jan 2013 for 4 years until 07 Jan 2018 while I was working there company got some problems and it closed down.

    4. I went to India and I got married on 12/12/2014 and my husband applied visa and it [was] granted on 03/03/2015 after that he travelled to Australia on 20/03/2015.

    5. I got offer as a Cook with Pepper Bite PTY LTD ATF Pepper Bite Unit Trust (Second Sponsor) who received nomination approved on 15 July 2017.

    6. From 16 July 2015, I began my employment with the second Sponsor. On 7 October [2016], I gave my resignation with the second sponsor.

    7. I found another employer and I have launched my application within 90 days and accepted an offer as a Cook with The trustee for The Wild Horse Trust as Noosa Junction Seafood Market (Third Sponsor). The third sponsor lodged a nomination application on 13 December 2017. The application had been pending for nearly a year and the Department had ample time to review and approve nomination.

    8. My employer does not have any idea about the visa application and he became upset and he emailed to the lawyer and she (agent) withdrew my application.

    9. I got another offer from company called Amala Australia Pty Ltd on 20 October 2017. I have signed employment contract with Amala Australia Pty Ltd and after that I have started working there and I was checking my visa through VEVO it was not showing up so I went to the department of immigration then only I came to know that I don’t have valid visa . I checked all of my email and I checked with my lawyer also he also didn’t receive any email from the department. After that they granted me Bridging Visa E.

    10. It’s very hard for me to go back to my home county I have been here more than 10 years. All my local experience [is] from here. We both are working here.” ...

17. The Tribunal has considered the applicant’s presentation at the hearing and her previous responses.  In her response to the Notice of Intention to Consider Cancellation (NOICC) the applicant submits that she, at all times, complied with all requirements and to the best of her abilities to ensure the visa conditions were met. She states that being unemployed for more than 90 consecutive days was not the fault of her sponsor or herself, but due to the lengthy timeframe the Department took in making a decision on the sponsorship nomination. She adds that she has been extremely active in attempting to find new employment immediately after her third sponsor withdrew the nomination and that indeed, a new nomination for business sponsorship has been lodged. She requests that no decision be made regarding cancelling the visa until a new nomination application has been finalised.

18. At the hearing the applicant, at first, appeared confused, inconsistent and not spontaneous in her responses.  For example, in her oral evidence and submissions of 7 January 2019 she states: “I never received the notification from the Department of its decision to cancel my visa until I made enquiries about why my bridging visa had changed. It was only after my enquiry that the Department sent the cancellation letter to me”.  However, later in the hearing she explained that she did receive the NOICC in October 2017 but had mistakenly thought I was referring to the actual cancelation notice, rather than the NOICC. The Tribunal accepts that the applicant was somewhat nervous giving rise to some inconsistencies because of the importance of the review application and the potential implications of any adverse findings.

19. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia is to enable her to remain in Australia to work for the approved sponsor, as a Cook. The Tribunal accepts that the visa applicant worked as a Cook until her visa cancellation and has always sought to retain work as a Cook with a new sponsor. The Tribunal notes that, as at the time of this decision, there is no other nomination for business sponsorship that is approved although this is pending with priority. The Tribunal gives this some weight as the overall purpose of securing work as a Cook to fill a skills shortage in Australia remains fulfilled.

20. Considering the extent of the applicant’s compliance with any conditions subject to which the visa is granted, it is noted that apart from this instance of non-compliance with condition 8107 attached to her 457 visa there has been no other apparent non-compliance. Although she ceased employment with the sponsor for more than 90 consecutive days, she has attempted to obtain employment in the nominated occupation of Cook with other sponsoring employers including one that is presently pending nomination approval. The Tribunal notes the delegate’s comments regarding the option the applicant had to either regularise her visa status or depart Australia. However, the Tribunal considers that the applicant is entitled to lodge and await the outcome of her review application and has exercised her appeal rights in accordance with the provisions lawfully available. Under the circumstances, there is no adverse weight given to this factor.

21. The departmental records confirm there is one other applicant holding a visa in Australia due to the applicant’s visa who will also be impacted. Therefore, should the applicant’s visa application not be successful, this will result in consequential cancellation by operation of law under section 140 of the Act in respect of the remaining applicant as a member (spouse) of her family unit.  Should the visa be cancelled, the applicant is able to avoid detention in Australia (for being unlawfully on shore), by adhering to the Department’s requirements to leave the country within the time frames stipulated. There is nothing before the Tribunal to suggest that indefinite detention is a possible consequence of cancellation, or that there are provisions in the Act which will prevent the applicant from making a valid visa application without the Minister’s intervention.

22. There is no application by the applicant before the Tribunal for any Protection or Complementary Protection claims under the United Nations Refugees Convention and other conventions or any claim that Australia’s international obligations (including non-refoulement and best interests of children as a primary consideration) would be breached if the visa is cancelled.  In light of this, there appears to be no reason before the Tribunal to suggest that removal of the applicant if necessary, would lead to a breach of Australia’s non-refoulement obligations under the United Nations Refugees Convention for Protection or in respect of Complementary Protection but makes not determination on this here as this is not before the Tribunal in the present instance. There is no suggestion or evidence of separation or any victims of family violence in this case.

23. The Tribunal has considered the applicant’s past and present conduct towards the Department, noting nothing substantially adverse raised by the Department in respect of compliance with any other conditions subject to which the applicant’s visa was granted - other than the present 8107 breach.  In respect of the applicant’s extent of (non)compliance, the Tribunal considers the significance of the breach is mitigated by the specific circumstances of the applicant’s case, discussed further below.

24. The applicant applied for her 457 visa through the company trading as Indian Taste Buds and was granted the visa on 7 Jan 2013 for 4 years. Whilst she was working there, the company developed some financial problems and it closed down. The Tribunal accepts the submission that this was beyond the visa holder’s control. She then travelled to India and married in 2014.  Her husband applied for a visa and this was granted on 3 March 2015 to work in Australia. He has lived in Australia since 20 March 2015, a period of almost four years now.  Subsequent to this, the applicant was offered a position as Cook with Pepper Bite Pty Ltd ATF Pepper Bite Unit Trust (Second Sponsor) who eventually received a nomination approval on 15 July 2016.  The applicant began her employment with the second Sponsor, but on 7 October 2016 she handed in a resignation with that second sponsor because of differences between them.

25. The applicant promptly found another employer sponsor and accepted an offer as a Cook with The Trustee for The Wild Horse Trust as Noosa Junction Seafood Market (Third Sponsor). This sponsor lodged a nomination application on 13 December 2017. The application had been pending for over a year and the Department has yet to make a decision regarding approval of that nomination.  The applicant explained to the Tribunal that her employer did not have any idea about the visa application and once he learned of it, he became upset and emailed the applicant’s representative agent withdrawing his nomination of the applicant. The applicant then received another offer on 20 October 2017 from a company called Amala Australia Pty Ltd. She has a signed employment contract with Amala Australia Pty Ltd and has already started working there as a Cook.

26. The Tribunal notes that the applicant has sought to secure work as a Cook with another sponsor - including before the end of the 90 day period.  Ultimately, she has managed to return to such work as a Cook (albeit with a pending nomination approval) all of which acts in her favour, in the Tribunal’s view. The Tribunal accepts that the applicant has attempted to mitigate the circumstances in which she found herself at the time.  The Tribunal places weight on this.

27. The Tribunal has also considered the hardship that would be caused to the applicant if the visa is cancelled.  The Tribunal notes the applicant is married (12 December 2014) and has no children. The Tribunal accepts that refusal of the visa would result in substantial disruption to the applicant relating to her established family life in Australia since first arriving over 10 years ago in September 2008 but considers that this (without more) does not amount to sufficient financial, emotional and other hardship to justify not cancelling the visa. The Tribunal has considered this in the context of the applicant’s overall circumstances discussed above and below.

28. The Tribunal has taken into consideration that the visa holder and her spouse have applied for a new visa since being on shore and have access to a Bridging Visa which will enable them to remain lawfully onshore whilst they await the outcome of that application. The Tribunal has given some weight to the fact that they do not need to retain their UC 457 visa for this purpose. The Tribunal has also considered that cancellation of the visa will not attract an exclusion period for the visa holder as she will be able to apply for another visa from overseas, provided she meets all the usual requirements for the visa, should she choose to depart Australia.

29. However, the Tribunal considers that there are particular circumstances in this case which amount to additional factors relating to hardship beyond that above of disruption to the applicant’s established family life in Australia. These particular circumstances include the following, compounding the fact that she has been established in Australia for more than 10 years now.  Her husband, Bineesh Priestly, has also settled in Australia given his presence here of almost 4 years.  His evidence is that his father has retired in India and they are of poor socio-economic status.  His father lives together with his daughter’s family in the same household. The evidence from the review applicant’s husband is that he provides support to his father and sister’s family in India by sending financial support to enable them to meet basic subsistence. When questioned about his capacity to provide such support, the review applicant’s husband said at the hearing that he works in Australia as a Computer Programmer with an air-conditioner manufacturer. The Tribunal accepts from this that he has the financial means to provide financial support not only to his family here in Australia but also to members of his close family in India and that this would be at risk if he was required to leave Australia. Further to this, the evidence before the Tribunal which is accepted, is that the review applicant’s husband is only experienced as a Pastor in India for which there is insufficient income or work available to provide for both himself and his wife, regardless of any additional support to members of his close family in India.

1. The Tribunal considers that these factors are in addition to, and compound the fact, that the applicant has resided in Australia for more than 10 years with consequent undeveloped networks of support in India given the length of time away. Considered collectively with the other factors discussed, this tips the scales on balance, in favour of not cancelling the applicant’s visa.

2. The Tribunal has carefully weighed up all relevant matters overall and has concluded, on balance, that these are grounds that act in favour of exercising the discretion to not cancel the applicant’s visa, which outweigh the grounds for cancelling.

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

   DECISION

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

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

   Stavros Georgiadis
   Member