Varudelli (Migration)

[2019] AATA 844

Varudelli (Migration) [2019] AATA 844 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Preethi Varudelli
Mr Prashanth Rao Peggarla
Miss Sahasra Rao Peggarla

CASE NUMBER:  1718141

HOME AFFAIRS REFERENCE(S):           BCC2014/3406682

MEMBER:Amanda Mendes Da Costa

DATE:22 January 2019

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 457 (Temporary Work (Skilled)) visa.

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

Statement made on 22 January 2019 at 10:43am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Federal Circuit Court remittal – ground for cancellation –standard business sponsorship cancelled or barred – consideration of discretion – degree of hardship – daughter’s learning difficulties – best interests of child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 140M, 348
Migration Regulations 1994 (Cth), r 2.43

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 22 January 2016 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 on the basis that the nominating sponsor had its status as a standard business sponsor cancelled under s.140M. 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 matter is before the Tribunal as a result of an order of the Federal Circuit Court made on 7 August 2017, remitting the application for review for of the decision of the delegate, to be determined according to law.

5. The applicants appeared before the Tribunal on 14 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Prathanth Rao Peggarla, the second named applicant.

6. Although the applicants were represented in relation to the review by their registered migration agent, he did not attend the hearing.  The applicants told the Tribunal that they were prepared to go ahead without the hearing with their agent being present.

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)(g). 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?

9. 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.

10. It provides that a subclass 457 visa may be cancelled where the standard business sponsor who had sponsored the applicant for the visa has been cancelled or barred under s.140M.

11. The standard business sponsor who nominated the applicant in the most recently approved nomination was Sage Food Co Pty Ltd (the sponsor), whose nomination was approved on 13 February 2012 for the applicant to be employed in the position of Cook ANZSCO Code 351411.

12. On 4 April 2012 the applicant was granted a Subclass 457 visa.

13. On 9 December 2014 the Department cancelled the company’s sponsorship under s.140M of the Act.  On 30 December 2014 the sponsor lodged an application with the Migration Review Tribunal (MRT) to review the decision to cancel its sponsorship.  The application for review was withdrawn on 9 November 2015.

14. On 27 May 2015 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of her visa.  The applicant was invited to provide comments regarding the Departments NOICC, which she provided to it on 2 June 2015.

15. In her response, the applicant requested the delegate to exercise their discretion not to cancel her visa.  She relied on the following matters as relevant to the exercise of the delegate’s decision regarding cancellation of her visa:

    ·She arrived in Australia in 2007 on a student visa to study for a Diploma of Hospitality (commercial cook) which she successfully completed in October 2009.

    ·After completing her studies she volunteered on a part-time basis as a cook at a Krishna Indian restaurant, completing 900 hours of unpaid work and qualifying for her skills assessment as a Cook with Trades Recognition Australia.

    ·She commenced further studies for a Diploma In Business at the Victorian Institute of Technology but did not complete her studies due to pregnancy and giving birth to a child in 2011.

    ·In 2012 she commenced full-time employment for the sponsor as a cook and had been working for the company for three years when its standard business sponsorship was cancelled.

    ·She had a four year old daughter who was born in Australia and enrolled to commence primary school in 2016.  The applicant explained that she was responsible for her daughter’s financial support and daily care.

16. The applicant’s visa was subsequently cancelled on 22 January 2016.

    Applicant’s evidence

17. The applicant who is a national of India arrived in Australia in July 2007 for the purpose of studying in this country.  She confirmed the above personal history given by her to the Department in her response to the NOICC.  She explained that prior to arriving in Australia she had completed a Diploma of Hotel Management in India and had been employed for approximately three years in hotel management in Hyderabad.  Whilst studying in India she had worked part-time in a family business, which operated a club.

18. The applicant told the Tribunal that she was passionate about cooking and if she was permitted to remain in Australia, she proposed to undertake further studies to become a chef.  She said she was interested in bringing authentic Indian food to Australia but also interested in other cuisines.

19. The applicant explained that she was employed by the sponsor from April 2012 until her visa was cancelled on 22 January 2016.  During that time she worked on a full-time basis as a cook in an Indian restaurant, operated by the sponsor in Footscray. She found the work interesting and satisfying.

20. Since their visas were cancelled the applicant and second named applicant have not worked and have been financially supported by their parents in India and the applicant’s sister in Australia.

21. The applicant told the Tribunal that if she and her husband returned to India with their daughter, they would initially stay with her parents-in-law, who live in a town, a couple of hours travel from Hyderabad.  However, they would eventually move to Hyderabad where there are greater employment opportunities for her husband and herself and better educational facilities for their daughter.

    Evidence of second named applicant

22. Mr Prashanth Rao Peggarla is the husband of the applicant.  They have been married for 11 years and have a daughter, born in Australia on 21 February 2011.  He has a bachelor’s degree in hospitality, obtained in India and before accompanying his wife to Australia in 2007 he worked for three years as a banquet manager.

23. Mr Peggarla told the Tribunal that he had previously been a director of Sage Food Co Pty Ltd and was operating the Indian restaurant where the applicant worked, during the period of her employment.  He explained that the company’s sponsorship as a standard business sponsor was cancelled by the Department due to concerns about the company’s payment of tax.  When the Department’s concerns were brought to his attention, he gave financial documents prepared by the company’s accountant and the telephone number of the accountant to the Department.  The company did not lodge an application with the Tribunal to review the decision to cancel the company’s standard business sponsorship and when Subclass 457 visas for himself, his wife and daughter were cancelled he closed the business and has not worked in the meantime.

24. The second named applicant said that if he and his wife returned to India with their daughter, they would live with his family and he would be able to find employment in the hospitality industry.  However he explained that employees in such jobs are not shown much respect compared to professionals and the salaries are considerably lower than those paid for similar jobs in Australia.

25. The applicant and second named applicant each told the Tribunal that their primary concern if their visas were cancelled was the effect this would have on their daughter, now aged 7 years of age. They explained that their daughter had been born in Australia and lived in this country for her entire life apart from a three month visit to India when she was aged three years.

26. The couple told the Tribunal that they were concerned that their daughter would have difficulties in adjusting to life in India particularly as the education system in that country is very different to that in Australia.  They said as children commence their schooling at age three years, their daughter (who is now entering Grade 3) would be placed in a lower grade to enable her to catch up with other children.  They also explained that the syllabus studied in Indian schools is very different from those in Australia.  Their daughter had not enjoyed herself at an Indian pre-school during her visit to India and they were concerned she would not fit into the Indian education system.

27. On 2 January 2019 the applicant sent an email to the Tribunal requesting it to allow her further time in Australia, to enable her to find better opportunities for her daughter to progress in her academic studies.  The applicant also provided the Tribunal with the following documents regarding her daughter:

    ·Speech pathology progress report authored by Christine Vo, dated 18 December 2018.

    ·Psychological assessment report authored by Marged Goode dated 16 June 2017.

    ·Speech pathology assessment report, authored by Jessica Stiles, dated 11 June 2017.

28. The above reports show that the applicant’s daughter has been assessed as meeting the diagnostic criteria for an intellectual disability of mild severity including experiencing a severe delay in her receptive and expressive language skills.  She has been receiving regular assistance from a speech pathologist in 2018 and will continue to do so in 2019.  Ms Goode has recommended that she undergo reassessment in two years’ time in order to clarify the nature of her learning difficulties and participate in additional testing to ascertain whether she meets the criteria for Attention Deficit/Hyperactivity Disorder.  

29. The Tribunal finds based on the delegate’s decision record, a copy of which the applicant provided to the Tribunal that on 30 December 2014 Sage Food Company Pty Ltd had their sponsorship as a standard business sponsor cancelled under s.140M of the Act and there is no evidence before the Tribunal which indicates that the applicant subsequently entered into a new sponsorship agreement with another sponsor.

30. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(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

31. 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 to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

32. The Tribunal finds that the applicant was employed in as a cook for nearly four years until her visa was cancelled.  The applicant has not been in employment since the visa cancellation in January 2016.

    The extent of compliance with visa conditions

33. There are no known instances of non-compliance with visa conditions.

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

34. The Tribunal accepts that the applicant’s daughter is experiencing learning difficulties and is likely to require ongoing support and educational assistance throughout out her schooling.  The Tribunal has been provided with limited evidence about her educational prospects if she returned to live in India with her parents and no country information which would support a claim that the applicant’s daughter would not receive appropriate medical care, schooling o other assistance on return to India.

35. The Tribunal accepts that the applicant and her husband would experience some difficulties in returning to India and although they said they would be able to obtain employment in the hospitality industry, their salaries were likely to be lower than those paid for comparable positions in Australia.

    Circumstances in which the ground of cancellation arose

36. The Tribunal accepts that prior to the cancellation of her visa; the applicant was employed in her nominated skilled occupation by Sage Food Company Pty Ltd, which was a standard business sponsor which had an approved nomination for the application.  The Tribunal notes that the approval of the applicant’s sponsor as a standard business sponsor was cancelled on 11 February 2015 under section 140M(1)(a) of the Act.  The applicant continued in her employment with the sponsor until her visa was cancelled on 22 January 2016.

37. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia temporarily for a period of four years.  The purpose of that visa was to enable the applicant to be employed in Australia as a Cook for her sponsor, Sage Food Company Pty Ltd.  That employment is no longer available to the applicant and she has not found a new sponsor, being an approved standard business sponsor, since her employment with Sage Food Pty Ltd ceased in January 2016.

    Past and present behaviour of the visa holder towards the Department

38. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

39. The Tribunal accepts that the second and third named applicants would be subject to consequential cancellation under s.140.

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

40. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely because as an Indian citizen she will be able to return to India. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she may be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa bot prescribed for the purposes of s.48 while in the migration zone.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation.

41. There is no evidence and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

42. The applicant has submitted that the best interests of her daughter support her remaining in Australia.  The Tribunal notes that the applicant’s daughter has been attending school in Australia for the past two years and has also been receiving speech therapy for at least the past year. The Tribunal notes that the Department’s Procedures Advice Manual provides that if there are children In Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, a decision maker is obliged to treat as a primary consideration the best interests of the children.  According the Tribunal has treated the interests of the applicant’s daughter as a primary consideration in making its decision and accepts that it is in the daughter’s best interests that her mother’s visa not be cancelled.

43. The Tribunal accepts that a certain degree of hardship may be caused to the applicant’s daughter as a result of the applicant not being able to stay in Australia and that the applicant would prefer to raise her daughter Australia rather than India.

    Any other relevant matters 

44. The Tribunal has taken into account the applicant’s interest in undertaking further studies in cooking in Australia; the applicant’s plans to initially stay with family and then move to Hyderabad if she returned to India; the lower salaries for applicant and her husband in India; the likely difficulties for the applicant’s daughter in adjusting to a different educational system in India; and the applicant’s daughter’s intellectual disability and the services she is receiving in Australia to assist with her learning difficulties.

45. The Tribunal places weight on the fact that the applicant can no longer fulfil the purpose for which the visa was granted, namely to work in a nominated position by an approved sponsor.  The Tribunal has also taken into consideration the fact that the visa would have already expired, so the applicant’s desire to remain in Australia and any hardship that she claims would result from her departure from Australia, would not be caused by the cancellation of the visa but its expiry.

46. Considering the circumstances as a whole and in particular the circumstances of the applicant’s child, the Tribunal concludes that the visa should not be cancelled

    DECISION

47. 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.

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

    Amanda Mendes Da Costa
    Member