1608803 (Migration)

[2016] AATA 4293

1608803 (Migration) [2016] AATA 4293 (26 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr FAHAD BIN ILYAS
Mrs Saba Waheed hussain
Ms Rida Fahad
Ms Ammira Fahad
Master Mohammad Omer Bin Fahad

CASE NUMBER:  1608803

DIBP REFERENCE(S):  BCC2016/973569

MEMBER:Denise Connolly

DATE:26 August 2016

PLACE OF DECISION:  Sydney

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 26 August 2016 at 3:22pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 June 2016 made by a delegate of the Minister for Immigration 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 first named applicant (the applicant) has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was granted a Subclass 457 visa on 4 June 2014 having been sponsored by Sydney IT Careers P/L who nominated the occupation ICT Project Manager. The Department cancelled the sponsor’s approval as a standard business sponsor on 2 December 2015 under s.140M(1)(a) and barred the sponsor for 2 years from making future applications for approval as a standard business sponsor. On 11 May 2016 the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant responded and the delegate took those submissions. The delegate however cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applied to the applicant, that is the ground in r.2.43(1)(l)(iv) that the sponsor has been cancelled or barred under section 140M of the Act.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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.

5. The applicant appeared before the Tribunal on 11 August 2016 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

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 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), that the sponsor has been cancelled or barred under section 140M of the Act, is relevant.

10. In this case the Department’s records confirm that the Department cancelled the sponsor’s approval as a standard business sponsor on 2 December 2015 under s.140M(1)(a) and barred the sponsor for 2 years from making future applications for approval as a standard business sponsor.  

11. The Tribunal finds therefore that a prescribed ground for cancelling the visa applies to the applicant.

12. 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

13. 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’.

14. At the hearing the applicant explained that he moved his family from India in July 2014 to engage in sponsored employment with the sponsor as an ICT Project Manager. He indicated that the sponsor had been paying him correctly until late 2015 when the sponsor indicated the business had some financial problems. He was interviewed by the Department by telephone but he did not realise it would lead to such an adverse outcome. He claims he did not know that he was being underpaid as identified by the Department in its monitoring of the sponsor. In January 2016 he heard that the business would be closing down. He called the Department to advise that he had heard this news but was told it would not be an issue for him as, if the business closed, the Department would write to him and give him an opportunity to find a new sponsor in 90 days.

15. The applicant did not find out that the sponsor had been cancelled as a standard business sponsor and barred until April 2016. By then he had not been paid for 2 months. At that time he had to leave that employment and look for a job to earn income to support his family. He still has not received the back payment from Sydney IT Careers. The representative said they are in the process of making an application to the Fair Work Ombudsman to see if the applicant can recover any of his earnings for the last 2 months he worked for the sponsor.

16. The applicant has now found a new sponsor, Wazzam Pty Ltd, an approved standard business sponsor. Wazzam is in the process of preparing a nomination application of which the applicant is the subject. He provided evidence that Wazzam is an approved SBS.

17. In assessing the evidence the Tribunal notes that the applicant presented as a persuasive, reliable witness. It is satisfied it can rely on his oral evidence to make many of its findings.

18. With respect to the applicant’s purpose of travel and stay in Australia, the Tribunal is satisfied the applicant wishes to work in skilled employment as an ICT Project Manager. He has brought his family to Australia and his children have settled in at school so he wishes to remain here to provide continuity in their education. He wishes to contribute to the IT industry in Australia, his primary purpose for travelling to Australia in 2014, as he has appropriate skills and experience. The Tribunal is of the view this evidence weighs in favour of not cancelling the visa.

19. With respect to his compliance with visa conditions the Tribunal finds that the applicant may not have complied with condition 8107 when he ceased working for the sponsor and did not return within 90 days. However it accepts he was forced to leave that employment because the sponsor was not paying him. The Tribunal is satisfied there is no other evidence to indicate that he has not complied with other visa conditions.

20. The Tribunal is satisfied the applicant will suffer financial hardship if the visa is cancelled. At significant expense he moved his whole family to Australia from India. If he is unable to work in skilled employment in Australia this will cause the family financial hardship. Also his children are settled at school in Australia and the Tribunal accepts the disruption of a visa cancellation will cause them distress. The applicant indicated that since the family has been upset by the visa cancellation his 14 year old daughter has not been eating. He was visibly emotionally distressed when he gave this evidence. The Tribunal accepts that the circumstances in which the applicant finds himself have adversely impacted on his whole family and the children are innocent victims in this matter. The applicant has borrowed a significant sum of money to remain in Australia and pursue this matter as he has not had work rights. He owes family and friends about $20,000. In the Tribunal’s view this evidence weighs in favour of not cancelling the visa.

21. Regarding the circumstances in which the ground for cancellation arose, the Tribunal is satisfied the sponsor’s cancellation and bar came about because of circumstances beyond the applicant’s control. It gives this factor significant weight in favour of not cancelling the visa.

22. Regarding the applicant conduct towards the Department, the Tribunal notes and accepts that the applicant approached the Department to put it on notice that he had heard his sponsor may be closing the business. There is no evidence to suggest the applicant has been anything but honest with the Department.

23. There are 4 consequential cancellations in this case which will adversely impact the applicant’s 3 children. The Tribunal is of the view, given the circumstances of this case, that it may be unfair on the children to exercise its discretion to cancel the visa.

24. The Tribunal is now satisfied the applicant has a new sponsor, Wazzam Pty Ltd, an approved standard business sponsor. Wazzam has made a nomination application on 24 August 2016 of which the applicant is the subject.

25. Overall, balancing all of these factors, the Tribunal places considerable weight on the circumstances under which the ground for cancellation arose as it is of the view these circumstances were beyond the applicant’s control. It also gives significant weight to the fact that the applicant has secured a new sponsor, Wazzam, a standard business sponsor and is the subject of a nomination application to be employed in skilled employment as an ICT Project Manager.  It gives significant weight to the consequences of consequential cancellations of his children’s visas. It accepts the family incurred significant expense to move to Australia to enable the applicant to work in skilled employment. It accepts the stress of the events of the last few months has adversely impacted on his 14 year old daughter’s health and that she has stopped eating. This is causing the applicant significant distress. It accepts the applicant wishes to remain in Australia to work in skilled employment which is in the spirit of the Subclass 457 visa program. The Tribunal is of the view the evidence supports a decision to not cancel the visa.  

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

    DECISION

27. 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.

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

    Denise Connolly
    A/g Senior Member