ABBASI (Migration)

[2017] AATA 190

ABBASI (Migration) [2017] AATA 190 (7 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD NAEEM ABBASI

CASE NUMBER:  1614032

DIBP REFERENCE(S):  BCC2016/1552507

MEMBER:Denise Connolly

DATE:7 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 February 2017 at 10:20am

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) –Sponsor barred or cancelled – Not working for an approved sponsor for over 90 days – Seeking further sponsorship – Seeking permanent residence – Intention to marry delayed

LEGISLATION

Migration Act 1958, s 116(1)(g), 140M

Migration Regulation 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 August 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 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 6 November 2013 having been sponsored by the ANT Holdings Pty Ltd. The decision record also confirms that the Department cancelled the sponsor’s approval as a standard business sponsor on 26 April 2016 under s.140M(1)(a) and barred the sponsor for 5 years from making future applications for approval as a standard business sponsor. On 15 August 2016 the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant responded and the delegate states she took those submissions into account, 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. The applicant appeared before the Tribunal on 24 November 2016 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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

9. In this case the delegate’s decision record, provided to the Tribunal by the applicant, confirms that the Department cancelled the sponsor’s approval as a standard business sponsor on 26 April 2016 under s.140M(1)(a) and barred the sponsor for 5 years from making future applications for approval as a standard business sponsor.

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

11. 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

12. 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’.

13. The applicant was sponsored by ANT Holdings Pty Ltd to work in the occupation Facilities Manager. The Department decided to take action under s.140M of the Act in April 2016. It advised the applicant’s representative on 24 June 2016 that it would be sending a NOICC. In response to the Department’s email advice, on 28 June 2016, the representative advised that the applicant was in the process of securing a new sponsor to work in the nominated occupation. The Department was also advised that the new sponsor would be lodging sponsorship and nomination approval applications within 30 days. 

14. The delegate sent the NOICC on 15 August 2016. The applicant responded and provided evidence that he has a new sponsor, MTM Networks Pty Ltd, who in August 2016 applied for sponsorship and nomination approval. The applicant also provided a Statutory Declaration explaining the circumstances in which he found out that he no longer had employment with ANT Holdings and his attempts to secure sponsored skilled employment.

15. The applicant provided evidence that a new sponsor, Abdul Afroz Ashad, of Cumberland Partners had on 10 February 2016 lodged applications for approval as a Standard Business Sponsor and nomination approval, nominating the applicant. The delegate’s decision record confirms that the nomination application was refused by the Department on 21 June 2016. The delegate notes the applicant’s new sponsor then lodged another nomination application on 23 June 2016 however that nomination application had been lodged more than 90 days after the applicant ceased employment. The delegate also noted that the period during which the applicant had not been working for an approved sponsor in a skilled occupation exceeded 90 days.

16. Prior to the hearing the applicant requested a postponement of hearing because the new sponsor’s nomination application had not been finalised by the Department. The Tribunal did not agree to postpone the hearing but advised it would discuss with the applicant at the hearing a reasonable adjournment period so as to allow the applicant to provide further evidence about his new sponsor’s sponsorship and nomination applications.

17. At the hearing the applicant provided the following oral evidence. The applicant started working with ANT Holdings on 6 November 2013 as the Facilities Manager. It ran a Fastway courier franchise. The business had a warehouse. He had worked for the business before he was granted his Subclass 457 visa. The applicant claimed that he had no idea the Department was monitoring the business. The Tribunal was concerned by this and questioned why, as the Facilities Manager, he was not aware of the Department’s monitoring and the concerns about the business. He indicated that the Director handled everything. He confirmed that he stopped working for the sponsor in February 2016. When the Department attended the site in March 2016, he had already left. He understood that the Fastway head office, the franchisor, had problems with the way in which the franchise was being run. The General Manager of Fastway came out to check everything. He claims he had no idea that there had been problems in the way the business was being run. In January 2016 he had taken paid leave. When he returned to work he was advised not to come back by the ‘Fastway guys’. He was advised that the General Manager of Fastway was taking over the business because the head office was worried about problems with the business’ couriers. He indicated that the business’ previous Director, Mr Turker, made and Amritpal Singh the Director before this action was taken because he knew that there had been problems with the business.

18. The Tribunal asked the applicant about his new sponsorship arrangements. He indicated that MTM Network runs a car sales and rental centre in Warners Bay. He indicated that they do not sponsor any other Subclass 457 visa holder. He is currently working for his new sponsor in a business run by Prasert Reephiattanawigitkum. He claims he is working as the Facilities Manager. The Tribunal asked about the size and nature of the business. He indicated that there are only two staff, the Director and the applicant. The Tribunal asked, in those circumstances, why the Director does not manage the facility himself. The applicant indicated he needed an experienced person as  he used to work in taxis. He indicated the business has been established for about 10 or 11 months. The Tribunal asked the applicant if he is in fact driving a taxi. He denied this. He claims he started working for MTM Networks in August 2016. The Tribunal asked about the progress of the sponsorship and nomination applications. He indicated that the Department has asked his new sponsor for documentation.

19. The applicant confirmed that he is currently holding a Bridging visa E and has work rights. He applied for a Subclass 187 visa in September 2015 sponsored by ANT Holdings. He indicated that he was asked about payslips and reference letters which he submitted in January 2016. He then withdrew that application because he was being sponsored by MTM Networks and ANT Holdings’ sponsorship had been cancelled. He denied breaching any other visa conditions apart from not working for his sponsor for a period exceeding 90 days.

20. The Tribunal asked the applicant about his current purpose for remaining in Australia. He indicated he wants to stay in Australia permanently. He came here in 2008 and went home after about a year but has not been back to his home country in six years. The Tribunal asked why he has remained in Australia for so long. He indicated he was studying here. He then got a job offer. He did not go home because he wants to secure permanent residence in Australia. The Tribunal put to the applicant that this is not the purpose of a Subclass 457 visa, a temporary visa program. The applicant indicated that he believed that after two years he could apply for permanent residence.

21. The Tribunal noted the delegate’s decision record indicated that the applicant had not worked in skilled employment, for a period exceeding 90 days, for an approved sponsor. It raised this issue with the applicant. He indicated that after he left ANT Holdings he tried to secure skilled employment with another sponsor. He indicated that he had applied for the Subclass 457 visa when his student visa was about to expire in March 2013. He then got another student visa and so applied for the subclass 457 while he was the holder of a student visa. He indicated he is unaware of breaching any other visa conditions.

22. The Tribunal asked the applicant about any hardship he might suffer as a consequence of a visa cancellation. He indicated he would suffer financial hardship because he would not be able to work in Australia. The Tribunal noted that the Subclass 457 visa is a temporary visa and its purpose is not to remain in employment in Australia on a permanent basis. The applicant indicated that when he went back to Pakistan in 2010 his father had arranged a marriage. He decided that he would not return and marry until he had secured permanent residence. Now the woman’s family has said they are not going to wait for him any longer. He cannot return to Pakistan under the current circumstances because of the visa situation. He has suffered hardship because he has not been able to return to Pakistan to marry.

23. The Tribunal discussed with the applicant the circumstances in which the ground cancellation arose. He claimed that he did not know that the business was being monitored by the Department. He claimed that Mr Turker dodged everything, including tax, and this led to his visa cancellation.

24. The applicant indicated, as far as he is aware, the Department is not concerned about his conduct. There are no consequential cancellations. He is currently holding a Bridging visa E so he would not be deported as a consequence of cancellation. When asked if the applicant had any concerns about returning to Pakistan, he indicated that he has now lived in Australia for seven years. He has decided he wants to remain here and be part of the Australian community. He does not want to return to Pakistan until he has secured permanent residence. He has always paid his tax and worked through the proper channels. He had nothing further to add.

25. The Tribunal asked the applicant if he had any indication of how long MTM Network’s sponsorship and nomination applications would take to be processed. He was not sure about the status of those applications. The Tribunal agreed to wait until close of business 22 December 2016 for further evidence. It explained that if the applicant did not provide any further evidence that would proceed to make its decision on the basis of the evidence before it and in those circumstances it may affirm the Department’s decision. The applicant agreed to provide further evidence to the Tribunal by that date.

26. On 25 November 2016 the Tribunal wrote to the applicant confirming that it had agreed to wait until 22 December 2016 for further information. The Tribunal advised that it would then proceed to make its decision on the evidence before it unless, in response to a request, it agreed to provide further time.

27. On 22 December 2016 the applicant’s representative wrote to the Tribunal and advised that the Department had not finalised the new sponsor’s Subclass 457 nomination application.

28. On 18 January 2017 the Tribunal wrote to the applicant’s representative and advised that it had agreed to wait until 27 January 2017 for further information. It advised that it would then proceed to make its decision on the basis of the evidence before it unless, in response to a request, it agreed to provide further time.

29. The applicant did not respond to the Tribunal’s letter dated 18 January 2017. The applicant has not provided any further evidence to the Tribunal. The Tribunal is satisfied that its letter of 18 January 2017 made it clear that it would proceed to make its decision on the evidence before it any time after 27 January 2017 unless the applicant had requested further time. In these circumstances the Tribunal now proceeds to make its decision.

    Assessment of the evidence

30. In exercising its discretion, the Tribunal has first considered the applicant’s purpose for remaining in Australia. The applicant made it clear at the hearing that he wishes to remain in Australia permanently. The Tribunal explained to the applicant that this is not the purpose of a Subclass 457 visa. He indicated that he is now the subject of a new Subclass 457 nomination application and the Tribunal provided him with further time to forward any information he wished for it to consider in relation to that application. He has not provided to the Tribunal evidence that his new sponsor has had their nomination application approved. The Tribunal has not seen evidence that the applicant is currently working in skilled employment for an approved standard business sponsor. The Tribunal takes into account the purpose of the Subclass 457 visa program; to fill a temporary vacancy in skilled employment for an approved sponsor. The Tribunal is not satisfied that the applicant is currently employed in those circumstances. Nor has he been for a year. It gives these factors weight in favour of cancelling the visa.

31. The Tribunal has considered the applicant’s compliance with visa conditions. The applicant was granted his subclass 457 visa on 6 November 2013 to work for an approved standard business sponsor, ANT Holdings in the occupation Facilities Manager. He ceased that employment in February 2016. While the applicant’s visa was not cancelled by the delegate because of a breach of conditions, it has now been one year since the applicant has worked for an approved sponsor in a skilled occupation.

32. The applicant has indicated that he will suffer financial hardship if the visa is cancelled. However the Tribunal notes that the Subclass 457 visa is a temporary visa granted to fill a skill shortage on a temporary basis in a position which cannot be filled by the Australian workforce. The applicant has not been able to secure sponsored employment in a skilled occupation since he ceased working for his previous sponsor in February 2016. The Tribunal is not satisfied, despite the applicant’s stated desire, that permanent residence and employment is a given outcome of holding a Subclass 457 visa. The Tribunal accepts that the applicant might suffer some financial hardship if the visa is cancelled but it is not satisfied that it will be serious. The Tribunal also takes into account the applicant’s hardship associated with the delay in his planned marriage. The Tribunal is not satisfied that this is a consequence of the visa cancellation; the applicant admits that the reason his marriage was postponed is because he wished to remain in Australia to secure permanent residence before returning to Pakistan to marry. This is a choice he made; it is not the consequence of a visa cancellation.

33. The Tribunal accepts that the ground for cancellation arose because of circumstances beyond the applicant’s control. It notes from the delegate’s decision record that the applicant has been cooperative with the Department and no concerns have been recorded in relation to his conduct. The Tribunal notes that the applicant currently holds a Bridging visa E and so he will not be detained if the visa is cancelled, so long as he departs Australia before that visa expires. There is no evidence to indicate that Australia’s international obligations would or may be breached as a result of the cancellation. There are no consequential cancellations.

34. The applicant told the Tribunal that a new sponsor has made an application for nomination approval of which the applicant is the nominee. The Tribunal asked that the applicant provide it with evidence in relation to the outcome of that application. The applicant has not provided this information. The Tribunal wrote to the applicant’s on 18 January 2017 advising that it had agreed to wait until 27 January 2017 for further information and that it would proceed to make its decision on the evidence before it any time after that date. The applicant has not provided any further information in relation to MTM networks nomination application and he has not sought further time. There is no evidence before the Tribunal to indicate that MTM Networks’ nomination application was approved. The Tribunal is not satisfied that the applicant is employed in skilled employment as the subject of an approved nomination that has not ceased.

35. Overall, having considered all the information before it, the Tribunal considers it significant that the applicant is not currently working in a skilled occupation as the subject of an approved nomination for a standard business sponsor. The applicant’s evidence indicates that he has not worked in a skilled occupation as the subject of an approved nomination for a year now. The Tribunal gives this significant weight in favour of cancelling the visa. The Tribunal also notes that the applicant has expressed a strong desire to remain in Australia permanently. In fact he has delayed his return to his home country indicating he wishes to secure permanent residence before he returns to Pakistan to marry. As discussed with the applicant at the hearing securing permanent residence is not the purpose of the Subclass 457 visa. While the applicant has expressed concern that he will suffer financial hardship if the visa is cancelled, the Tribunal is of the view the applicant’s strong desire to secure permanent residence in Australia is not consistent with a visa program designed to temporarily fill a skill shortage in Australia. The Tribunal accepts that the circumstances in which the ground for cancellation arose, his sponsor’s cancellation and bar, were beyond the applicant’s control. However it notes that he claims he was the Facilities Manager but was not aware that there were any problems in the management of the business and finds this somewhat concerning. The Tribunal takes into account that the Department has not been concerned about the applicant’s conduct and it has not recorded breaches of visa conditions. The Tribunal notes there will be no consequential cancellations and, so long as the applicant departs Australia before his bridging visa ceases, he will not be subjected to detention. It is satisfied no international obligations would be breached as a consequence of a cancellation. Overall the Tribunal is of the view it is appropriate in this case to cancel the applicant’s Subclass 457 visa.

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

   DECISION

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

   Denise Connolly
   Member