1601259 (Migration)

[2016] AATA 3913

1601259 (Migration) [2016] AATA 3913 (20 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abbas Ali

CASE NUMBER:  1601259

DIBP REFERENCE(S):  BCC2015/3343792

MEMBER:David Dobell

DATE:20 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2016 at 9:30am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 January 2016 made by a delegate of the Minister for Immigration 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)(g) on the basis that his sponsor’s standard business sponsorship was cancelled under s.140M 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. The applicant appeared before the Tribunal on 7 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the witness, Mr Ram. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CLAIMS AND EVIDENCE

5. The applicant’s subclass 457 visa was granted on 17 July 2012.

6. The Department cancelled the applicant’s visa because on 22 October 2015 his then sponsor, ATS (Asia Pacific) Pty Ltd (hereafter ‘ATS’), was subject to a 5 year sponsorship bar under s.140M of the Act. Under s.116(1)(g) of the Act this is a prescribed ground for cancellation under r.2.43(1)(l)(iv). The applicant did not respond to the notice of intention to cancel visa. The Tribunal notes that Department policy states 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. However, in this case it proceeded to cancel the visa.

7. On 6 April 2016, the representative provided the Tribunal:

   ·Department subclass 457 visa approval for applicant, dated 18 July 2012, metallurgical or materials technician

   ·Department acknowledgement of nomination application, 11 January 2016, Total Reliable Solutions Pty Ltd (hereafter Total Reliability’)

8. At the hearing, the applicant said he began in June or July 2012 as a welding inspection inspector, in the field of oil and gas, based in Perth. 

9. The Tribunal asked for the applicant’s passport. He showed it and agreed that he had left Australia on 29 October 2012 and returned on 24 November 2014, some 2 years later. The Tribunal asked why he was in Pakistan for all this time. He said he went to see his mother, who he lives with, in Lahore. He had worked in Malaysia for some 8 years and had not seen his mother for some time. He said he had an accident there, in December 2012, around Christmas.  

10. The Tribunal asked when he last worked for ATS. He said it was around December 2012. The Tribunal said that he left Australia in late October 2012. He said he had leave to go, and then his mother got sick, and then he had the accident. He said he can provide documentary evidence of being granted leave, and of his leg injury in a motorbike accident, being in hospital for 2-3 months, and that it took him over one year, two years, to recover, and he had to have plates removed, in August 2014.

11. As to why he came back in November 2014, he said he came back to go back to work with ATS. As to whether the company was going then, he said ‘no’, he had tried to contact people and the owner whilst in Pakistan and when he arrived, but he could not get them.

12. The Tribunal asked why he didn’t return to Australia for medical treatment when he could walk, so as to return to work. He said he just wanted one doctor to look after him and it would be expensive here. The Tribunal noted that he would have required health insurance for his subclass 457 visa but this may not have covered him for an accident in Pakistan.

13. The Tribunal asked why he did not respond to the Department notice of intention to cancel visa. He said he wanted to talk to the owner of ATS first, before he responded, but he could not contact him. He said he did get the 2 December 2015 letter.

14. As to who the owner was, he said it was an Alfred Benedict. As to how he knew he was the owner, he said he worked in the office with him and everyone knew he was the owner. The Tribunal noted that from the sanction letter he was an employee, not an owner. He further explained that Mr Ram, his new nominator and witness, worked for ATS also.

15. The Tribunal said that on the evidence before it, it was possible that there was a breach under s.116(1)(b) because of a failure to meet condition 8107 as well as the prescribed cancellation ground the Department had acted on.

16. The Tribunal then turned to the cancellation considerations.

17. As to his purpose for the obtaining the visa, he said he wanted to work in Australia, but would also like to stay here as he likes it here. As to his compelling need to say, he said he likes it here.

18. He does not have any family or relatives here in Australia, nor does he have a partner. He is presently subject to a ‘no work’ provision on his bridging visa, and is surviving on his savings and money from his sister in the UK.

19. As to the possible breach of any visa conditions, he is to provide documentary evidence in relation to his work leave, ceasing and his injury in Pakistan.

20. As to any possible hardship, he said this would be emotional, as this is his favourite country and it is his dream to stay here in Australia.

21. The Tribunal said he had been co-operative with the Department generally. However, he had not responded to the notice of intention to cancel visa, but that was his right.

22. The Tribunal noted he was unlikely to face detention if his visa was cancelled.

23. As to any fear of harm in Pakistan, he said he has none, just a fear he will have to leave his favourite country, Australia. 

24. He had nothing further to add.

25. The Tribunal then spoke to the witness, Mr Ram. He explained he was the operations manager for ATS. He was not a director or shareholder of that company, but is of the new company Total Reliability.

26. He said he has worked closely with the applicant in the past, having known him for some 5 years, and a company he is involved with in Malaysia arranged for the applicant to study and work there.

27. The applicant would be doing the same job as he was doing for ATS. He explained that ATS had a contract with an oil/gas company but this was cancelled in 2012. At this time the work ceased and the company ceased trading. He said he went offshore to work and when he came back some 2-3, or 6 months ago, he heard that the plant they were maintaining was having serious problems. He is in negotiation for a new contract with them, but wants to line up workers first.

28. He said he started his company in 2012 but it really only got going at the end of last year. The Tribunal noted that the lack of a contract at this stage may cause difficulties in getting the standard business sponsorship /nomination approved.

29. The representative noted that when he was instructed to lodge the standard business sponsorship and nomination, the applicant’s visa had not been cancelled and the applicant had not told him about this. He said that he spoke to the Department around the time he lodged them on 11 January 2016 and asked them not to cancel the applicant’s visa but it was too late by then- it had already occurred on 7 January 2016.

30. The Tribunal asked the applicant why he did not tell his migration agent that he had received a notice of intention to cancel visa. He said he was wanting to talk to his ‘boss’ first. The Tribunal said that he would have known by then the business had closed, and that he had a new nominator, so was unclear why would he have wanted to speak to the ‘boss’.  He could not explain this any further.

31. The Tribunal also asked the applicant whether he was expecting that his visa would be cancelled given he was out of Australia for 2 years and had not worked for the business which had sponsored him. He said ‘no’ and that it was a surprise to him.

32. The Tribunal said that it would give the applicant time to provide the documentary evidence as to his work leave, and the medical evidence as to his injury. It would also allow a reasonable time for the standard business sponsorship to be determined. It noted that 3 months had already passed. Mr Ram confirmed there have not been any requests for further information from the Department.

33. The Tribunal said that if the nomination is not determined in a reasonable time, it may need to proceed to make a decision in this matter.

34. It gave the applicant one month, to 7 May 2016 to provide all relevant information.

35. After the hearing, on 19 April 2016, the representative provided the following:

    ·Cavalry Hospital, 30 December 2012, re applicant, stating that he was admitted for fracture of left tibia from 24 December to 30 December 2012, and needs rest for 6 months

    ·19 September 2013, re applicant, stating that he was admitted for removal of implants from left tibia from 19 March to 20 September 2013. He was advised to have bed rest for one month from 21 September to 20 October 2013

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

36. It is not in dispute that the applicant’s subclass 457 visa was granted on 17 July 2012.

37. 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. 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.

    s.116(1)(g) - prescribed ground

38. 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 r.2.43(1)(l)(iv) states that cancellation may occur where the sponsor has been cancelled or barred under section 140M of the Act.

39. The Tribunal is satisfied from the evidence presented in the Department decision record that the applicant’s sponsor was subject to a 5 year sponsorship bar under s.140M on 22 October 2015.

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

    s.116(1(b)-  holder has not complied with a condition of the visa

41. The evidence of the applicant at the hearing that he had been in Pakistan for 2 years whilst on the subclass 457 visa also strongly suggested to the Tribunal that there may have been a grounds for cancellation under s.116(1)(b), in failing to comply with compulsory condition 8107 of his subclass 457 visa.

42. This requires, amongst other things, that the applicant not cease to be employed by his sponsor for greater than 90 days.

43. The applicant stated that he had approved leave to be in Pakistan, and he would provide the Tribunal documentary evidence of this. He has not done so. Thus on the evidence before it, the Tribunal is not satisfied that he had approved leave from work to go to Pakistan on 29 October 2012.

44. The applicant also stated that he had a motorbike accident such that he was compelled to remain there for medical treatment for 2 years and he would provide the Tribunal documentary evidence of this.

45. The medical certificate evidence provided by him, if accepted at face value, suggests that after 22 October 2013 his treatment and necessary bed rest period had ceased. Thus he was able to return to work in Australia if such work existed.  Thus the Tribunal is not satisfied that his injury prevented him from returning to Australia after 22 October 2013.

46. From the above, the Tribunal finds that he ceased his employment with ATS at the latest when he left for Pakistan on 29 October 2012.  Even if he had approved leave, and the Tribunal accepted he needed reasonable time to recover from his injuries, his failure to return after 22 October 2013 would also mean he had ceased employment from that date or thereabouts.

47. Thus the Tribunal finds that he has not complied with condition 8107(3)(b)- if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.

48. For these reasons, the Tribunal is also satisfied that the ground for cancellation in s.116(1)(b) exists.

49. As these two grounds do 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

50. 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’.

    • the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
    • the extent of compliance with visa conditions
    • degree of hardship that may be caused (financial, psychological, emotional or other hardship)
    • 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
    • past and present conduct of the visa holder towards the department
    • if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors
    • whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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
    • whether there would be consequential cancellations under s.140
    • whether any international obligations would be breached as a result of the cancellation
    • any other relevant matters.

51. The applicant’s subclass 457 visa was granted so that he could come to work here in Australia. However, the Tribunal has found on the evidence before it that he was not working for the approved sponsor after 29 October 2012, being after some 3 months in the position.

52. The Tribunal accepts that the applicant likes Australia and would truly like to remain here if he can. However, the Tribunal is not satisfied that any particular hardship would be faced by the applicant if the visa would be cancelled. He states he would suffer emotionally in having to leave Australia as he likes it so much, but there is no medical evidence before the Tribunal to suggest this would be beyond what might be consider a ‘normal’ consequence of cancellation.

53. On his own evidence he does not have any family or relatives here in Australia, nor does he have a partner. He is surviving on his savings and money from his sister in the UK, and no doubt could receive this assistance from his sister if he was in Pakistan without employment.

54. There is no suggestion from the evidence that any international obligations would be breached as a result of the cancellation, and the applicant having to return to Pakistan.

55. The Tribunal does not accept that the applicant was being truthful when he said he came back to Australia in November 2014 to recommence his employment with ATS. He said he knew the business was not going then and had tried to contact the owners when in Pakistan but could not contact them, so the Tribunal considers he knew the business had ceased well before he returned. Rather, the Tribunal finds that he was returning in order to find employment with persons other than his previous sponsor.

56. Whilst the Tribunal notes that there is a new nomination being considered by the Department in respect of the applicant, given its other findings it does not consider it reasonable or necessary to await the outcome of that process before determining this matter.

57. First, the Tribunal considers that 4 months from lodgement is a reasonable amount of time to await the outcome of a new nomination.

58. Second, in any event, even if the nomination was approved, given its findings in this particular case, including the rather unclear circumstances in which the applicant left his sponsored employment in Australia and returned to Pakistan for 2 years, the Tribunal does not consider it appropriate for it to exercise its discretion not to cancel the applicant’s visa.  Given its findings the Tribunal is not satisfied that the applicant would necessarily comply with the conditions of any future subclass 457 visa.

59. Thus, having considered the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    David Dobell
    Member