VARUDELLI (Migration)

[2017] AATA 144

VARUDELLI (Migration) [2017] AATA 144 (16 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms PREETHI VARUDELLI
Mr PRASHANTH RAO PEGGARLA
Miss SAHASRA RAO PEGGARLA

CASE NUMBER:  1600821

DIBP REFERENCE(S):  BCC2014/3406682

MEMBER:Adrian Ho

DATE:16 January 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 16 January 2017 at 3:23pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – r 2.43 – s 140M – Nominating sponsor had the status cancelled – Applicant obtained work rights and further employment – Sufficient time to make arrangements – Temporary nature of visas

LEGISLATION

Migration Act 1958, ss 48, 116, 140M, 348

Migration Regulations 1994, 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 to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) 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 applicants appeared before the Tribunal on 12 January 2017 to give evidence and present arguments.

5. Ms Varudelli is referred to as the applicant.

6. 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

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 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?

8. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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.

9. It provides that a 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.

10. The applicant submitted a copy of the delegate’s decision to the tribunal in which the delegate notes:

    i.The nomination by the standard business sponsor, Sage Food Co Pty Ltd, was approved in February 2012;

    ii.The approval of the sponsor as a standard business sponsor was cancelled in December 2014 under s.140M;

    iii.The applicant’s visa was cancelled in January 2015.

11. As suggested, on the evidence, the status of the applicant’s nominating standard business sponsor was cancelled under s.140M, after the nomination relating to her was approved.

12. The applicant was invited numerous times to make argument or submissions regarding this issue, but had no substantive response to make.

13. The prescribed ground for cancellation in r.2.43(1)(l)(iv) exists.

14. 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 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 said she stopped working for the sponsor when her visa was cancelled in January 2015.

17. The applicant obtained a bridging visa E with work rights and worked as a cook.

18. She said, a sponsor (Healesville) sought a nomination for her twice and twice the Department refused to approve it.

19. She said she is not working for that would-be sponsor anymore.

20. She said she was looking for work as a cook or chef and is not working currently.

21. She said she was granted the 457 visa in April 2012 and agreed it would have expired around April 2016.

22. As suggested to the applicant at hearing, and based on the evidence before the tribunal, the tribunal finds:

    a.That the purpose of the applicant’s stay in Australia on a Subclass 457 visa was to work for the applicant’s sponsor or another standard business sponsor in a position approved through the nomination process for which the applicant had the necessary acumen;

    b.There is no other permitted purpose in holding a 457 visa;

    c.That employment has ceased, and there is no position approved through the nomination process for the applicant based on which the applicant would now meet the criteria for a Subclass 457 visa;

    d.As the applicant is not the subject of a relevant approved nomination, were the visa reinstated, the applicant would be in breach of condition 8107 and the applicant’s visa would in short time again be rendered subject to cancellation under s.116(1)(b);

    e.The past conduct of the applicant with the Department has been cooperative;

    f.The tribunal acknowledges that after living in Australia the applicant may find it difficult in the event that departure from Australia is the result of cancellation;

    g.The tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end.  The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa, and by other family members of that person;

    h.In this case the applicant, and other members of the applicant’s family, have had a long duration in which to prepare for the potential of departure from Australia;

    i.Alternatively, the applicant has had ample time in which to seek an alternative lawful basis for further stay in Australia;

    j.Permanent residence or prolonged further stay should not be expected by a holder of a temporary visa;

    k.On the evidence, the applicant has had sufficient time to make arrangements to depart Australia, or alternatively, the applicant has had sufficient time to seek a new sponsor and an approved nomination, or an alternative basis for lawful stay in Australia;

    l.The holder of a temporary visa should anticipate a return to their home country, along with all of the various attendant consequences of such a return anticipated by the applicant, such as the greater difficulty in supporting one’s family by way of earning an income outside Australia or the adjustment of children and their transition in schooling in another country;

    m.The law provides for robust consequences if a visa is lawfully cancelled to reflect that remaining onshore in persistent breach of a visa condition is not to be encouraged and the tribunal considers that the avoidance of those robust consequences, provided for by the law, is not a reason to decide that the visa should not be cancelled;

    n.While the applicant may be barred by s.48 from seeking a further 457 or other visa while remaining onshore, if the applicant leaves Australia as a result of cancellation of the visa, and a relevant nomination is in fact approved, the applicant may apply for and be granted another 457 visa offshore; and

    o.cancellation of the visa will not result in Australia being in breach of its international obligations.

23. The applicant and her husband pleaded with the tribunal for more time to explore sponsorship opportunities, possibly in regional areas.

24. The applicant and her included family members, including her child, have now had 2 years (from the time the visas were cancelled) to contemplate and prepare for departure from Australia and reintegration in India, or to seek an alternative basis of stay in Australia.

25. As suggested, the tribunal elected not to invite the applicants to a hearing in mid-2016 and instead elected to allow the passage of more time in which the applicant might have had a nomination approved with a new sponsor.  The applicant’s evidence is that a new sponsor twice sought a nomination for her, and it was twice refused by the Department.

26. As suggested, the tribunal considers that its delay in inviting the applicant to a hearing has allowed the applicant a further six months to resolve the outcome of nomination applications made. 

27. The six further months afforded by the tribunal brings the total time the applicant has had to find a new sponsor to two years since her visa was cancelled.

28. As suggested, the tribunal considers the applicant has had sufficient time to obtain a new sponsor and an approved nomination, or to make other arrangements, and the tribunal declines to delay its review any longer.

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

30. As suggested, the visas of the other applicants were cancelled under s.140 by operation of law.  As no decision was made to cancel those visas, there is no reviewable decision for the tribunal to review, and the Tribunal has no jurisdiction with respect to the other named applicants.

    DECISION

31. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

    Adrian Ho
    Member