Verma (Migration)

[2019] AATA 4142

Verma (Migration) [2019] AATA 4142 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Shabnam Verma

CASE NUMBER:  1915239

HOME AFFAIRS REFERENCE(S):           BCC2019/1279514

MEMBER:Jennifer Cripps Watts

DATE:9 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 09 September 2019 at 4:24pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment for over 90 days – terminated from company – fair work claim dismissed – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 June 2019 made by a delegate of the Minister (the delegate) 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)(b) on the basis that the applicant had not complied with a condition of the visa, condition 8107(3)(b), that requires that if she ceases employment, the period during which the applicant ceases employment must not exceed 60 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. On 13 June 2019, the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision.  On 2 August 2019, she was invited to attend a Tribunal hearing and responded requesting that the video hearing be moved from Townsville to Melbourne.  The hearing was relocated to Melbourne on the same day and at the same time, 2:00pm on 20 August 2019. 

4. The applicant appeared before the Tribunal on 20 August 2019 to give evidence and present arguments; the Member in Sydney and the applicant at the Tribunal in Melbourne. The Tribunal also received oral evidence from Mr Agan Arora.  The hearing was conducted via video conference.  After some adjustment to the sound at the request of the applicant, the hearing proceeded.  Sound and visual were clear throughout.

5. At the end of the hearing the applicant, who is unrepresented, requested more time to provide additional evidence.  The Tribunal gave an undertaking not to make a decision before 3 September 2019, giving the applicant a further two weeks.  No additional information was provided and the applicant made no further contact with the Tribunal.

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 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.

   Background

8. The Tribunal has taken into consideration documentary and oral evidence provided by the applicant, including her written statement on the Department file and that of her witness at the Tribunal hearing. 

9. The applicant is a citizen of India who was studying and subsequently working in New Zealand before she applied for a Subclass 457 visa in the nominated occupation of Youth Worker, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 411716.  The visa was granted on 19 February 2018 relating to an approved nomination by Safe Places Community Services Limited (the sponsor), whose nomination identifying the applicant had been approved on 15 September 2017.  The arrived in Australia on 5 March 2018.

10. The applicant gave evidence that she had applied for a Case Manager position but that when she commenced work with the sponsor they put her in a position as a Youth Worker and that she had worked in the position with them for about two months.  It was raised with the applicant at the hearing that the nominated occupation is Youth Worker and, on that basis, it seemed reasonable that she would be required to work in the position of a Youth Worker because it is a condition of the visa that a 457 visa holder works in the skilled occupation for which they’re nominated and approved.  The applicant said at the hearing that she understood she got a senior Youth Worker position but that when it came ‘time to get my case manager position, they terminated me’.  In short, the applicant claims to have been exploited by the company. 

11. On 29 August 2018, the sponsor informed the Department that the applicant no longer worked for them.  The applicant looked into making a Fair Work claim but the matter was dismissed.  The applicant said she was informed that she had not worked long enough for the sponsor to be eligible.  The applicant was given the opportunity to speak about her experience working for the sponsor at length at the Tribunal hearing.  She said she wanted to bring her situation to light because she doesn’t want anyone else to go through what she has, referring to her claim that the sponsor exploited her by not putting her into a position as a Case Manager, rather than Youth Worker.

12. The applicant said at the hearing that she and Mr Arora, who is also an Indian citizen, met when she came to work in Australia.  At the time he was studying at James Cook University.  She said they have been together for about 18 months, they got married on 27 May 2019 and now live together in Melbourne, where Mr Arora is undertaking a professional year since completing a Master in Business and IT.  Mr Arora said at the hearing that he applied for a Subclass 485 visa the night before the applicant’s Tribunal hearing.

13. The applicant was asked at the hearing whether she had tried to find a new sponsor to work in the nominated occupation of Youth Worker within the 60 day period allowed for in condition 8107(3)(b) and said that finding a job was hard, and after three months, she was ‘going through a bad phase’ because she terminated a pregnancy in October 2018, about two months after she ceased working for the sponsor.  The applicant said she looked for positions as a Youth Worker, and also for community support workers and case managers and positions that involved case manager roles, such as retirement village supervisor. 

14. The applicant submitted that the condition, referring to needing a nomination, ‘cannot bring a stop to my career’ and she believes that some time in the future she can organise something in Australia.  Since ceasing her employment with the sponsor on 29 August 2018, the applicant has not secured a new sponsorship, nor has she returned to work for the sponsor at the time of this decision.  She said she hopes to get work rights some other way. 

    Does the ground for cancellation exist?

15. 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. Where a Subclass 457 visa holder has been granted the visa on the basis of an approved nomination, they must, if they cease employment with the sponsor, not cease employment for more than 60 days.

16. On the evidence, the Tribunal is satisfied that the applicant had her position terminated in writing by the sponsor on 9 August 2018 and that she ceased work with the sponsor no later than 29 August 2018.  She confirmed at the Tribunal hearing that she does not have a new sponsor, that she has not returned to work for the sponsor and that there is currently no company that is intending to or has lodged a nomination application for her to work for them as a Youth Worker.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(3)(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.

    Notice of Intention to Consider Cancellation

18. On 9 May 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) and invited her to respond in writing relating to the apparent breach of condition 8107(3)(b).  In her response, it is noted in the delegate’s decision that the applicant did not dispute the ground for cancellation, but that she wished other matters to be considered before making a decision about whether or not to cancel her visa.  This information was essentially as it has been detailed above, relating to the applicant being of the view that she was employed and nominated as a Case Manager, not a Youth Worker, and that she claims to have suffered unfair treatment by the sponsor and after a couple of months had her position terminated, by letter dated 9 August 2018. 

19. The applicant provided a large number of documents with her response to the NOICC, on 23 May 2019, including correspondence from the sponsor, attendance at counselling sessions, letter of employment, pay slips, letter and decision from the Fair Work Commission and various medical documents.

    Matter at the Tribunal

20. Prior to the Tribunal hearing, the applicant provided additional documents to support her claim for a fee reduction which was granted.  Relevant matters in those documents have been considered.  The applicant did not provide further documentary evidence to be considered on the review, but gave oral evidence at the hearing, as did Mr Arora.  Their evidence has been carefully considered.

    Consideration of discretion

21. 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’.

    Purpose of the applicant’s travel and stay in Australia and need to remain in Australia

22. The purpose of the applicant’s travel and stay in Australia was as a holder of a Subclass 457 temporary visa to work in the nominated occupation of Youth Worker for the sponsor.  The visa was granted for two years and would naturally have ceased on 19 February 2020.  The applicant has not been residing in Australia for the purpose for which her visa was granted since at least 29 August 2018.  She says she worked for the sponsor for about two months before her employment was terminated by letter on 9 August 2018.  The sponsor notified the Department the applicant no longer worked them on 29 August 2018.  A Fair Work applicant did not resolve the dismissal in the applicant’s favour and she has not found a new sponsor in the 12 or so months since ceasing her employment.

23. The applicant claims she needs to stay in Australia because she is now married.  It is acknowledged, from the oral evidence given by the applicant and Mr Arora at the Tribunal hearing, that they have recently moved to Melbourne and hope to live together there while Mr Arora completes his professional year.  He said at the hearing that he applied for a Subclass 485 visa the day before the hearing, on 19 August 2019.  Mr Arora said he would ‘be depressed’ if the applicant’s visa is cancelled.  The applicant said that as a result of cancellation her husband would feel compelled to depart Australia with her which she thinks would not be fair to him because he has studied hard in Australia and she doesn’t want to see them fail. 

    Extent of compliance with visa conditions

24. The applicant has been non-compliant with her visa conditions since the relevant 60 day period, in condition 8107(3)(b), ended in around late October 2018, a period now of more than 10 months.  It is acknowledged that she made some attempts to find a new sponsor.  The applicant has been non-compliant with her visa conditions for significantly longer than she was compliant, which was for about two months up to August 2018 (plus the 60 days where she was not non-compliant), before ceasing employment.

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

25. The applicant claims that her life and her husband’s will be ‘ruined’ as a result of cancellation, for reasons already given relating to her husband’s career aspirations in Australia and the aspirations she has for both him and herself.  They both gave evidence about an accident that the applicant had in her $50,000 car, financed by a loan that has not been paid off yet.  They said her car was not insured and that they had to pay for the damage to the other vehicle, and that they have gone through some financial hardship because of this.

26. The Tribunal accepts that the applicant would prefer to live in Australia and that she feels she was treated unfairly by the sponsor and that she has suffered some financial hardship due to not working and also the debt relating to her car and the accident and the termination of her pregnancy in October 2018.  While it may not be the applicant’s wish to depart Australia, the Tribunal is not convinced that she and her husband’s lives would be ruined, but is satisfied that cancellation of the applicant’s visa may cause some level of inconvenience.

    Circumstances in which the cancellation arose

27. The cancellation arose in circumstances where, on the evidence, the applicant says she applied for a case manager position with the sponsor, but was approved to work in the nominated occupation of Youth Worker.  She said she had frequent discussions with the sponsor to arrange to move into the case worker role, but that she was not moved into that position.  It is acknowledged that the applicant has made claims of being unfairly treated.  However, her Subclass 457 visa was granted for her to work as a Youth Worker, not a case manager.  When things did not work out between her and the sponsor, she was terminated and has not found a new sponsor or returned to work for her original sponsor. 

28. The Tribunal has taken into account the circumstances and claims made by the applicant relating to the cessation of employment with the sponsor and also to her personal circumstances and the stress she says she was under in around October 2018, but is not satisfied that the applicant’s inability to find a new sponsor within 60 days was beyond her control and that it has been beyond her control to find a new sponsor since then and up to the time of this decision, an additional 10 months.   

    Past and present behaviour towards the Department

29. There is no information before the Tribunal that the applicant has been unco-operative or uncommunicative with the Department.  In the delegate’s decision, it is stated that she has been co-operative and provided information when requested.   

    Whether there would be consequential cancellations under s.140

30. The Tribunal is satisfied that there are no dependants or family members who hold visas as dependants on the applicant’s Subclass 457 visa.

    Mandatory legal consequences

31. The intended consequence of cancellation is that the visa holder is required to depart Australia.  As a result of cancellation, the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removed from Australia under s.198 of the Act if she does not depart or apply for another visa, which may be done only in very limited circumstances.

    International obligations, including non-refoulement and best interests of children 

32. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

33. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

34. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

35. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for a protection visa by s.48A of the Act, or from being granted one because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456.

36. The Tribunal has considered whether the applicant’s circumstances may engage ‘non-refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s.36 of the Act.  It has also considered claims of harm against which a protection visa would not provide protection (see BCR16 and Goundar v MIBP [2016] FCA 1203).

37. The applicant is a citizen of India.  She has resided in Australia for nearly 18 months.  There has been no claim made by the applicant, and there is no information before the Tribunal, that indicates cancellation would be in contravention of Australia’s international obligations, including refoulement obligations.  There are no children under 18 involved in this matter.

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

    DECISION

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

    Jennifer Cripps Watts
    Member