Abu Samah (Migration)

[2020] AATA 340

Abu Samah (Migration) [2020] AATA 340 (21 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmad Abu Samah

CASE NUMBER:  1904710

HOME AFFAIRS REFERENCE(S):          BCC2019/161122

MEMBER:Andrew George

DATE:21 January 2020

PLACE OF DECISION:  Darwin

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

Statement made on 21 January 2020 at 8:37pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa –breached condition 8107– no longer employed by his sponsor –no new material provided – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act). The applicant is Mr Ahmad Abu Samah. The nominated occupation is Occupational Health and Safety Adviser – 251312.

2. The delegate cancelled the visa under s.116(1)(b). The delegate assessed that “Ahmad Bin Abu Samah’s visa was granted subject to condition 8107. As he was no longer employed by his sponsor from 27 June 2018 he no longer meets the requirements of subclause 8107(3)(b)”. As such, the delegate assessed that the applicant has not complied with a condition of his visa. 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 22 July 2019 the Tribunal wrote to the applicant under ss.359A and 359(2) of the Act. The Tribunal invited the applicant to comment on or respond to the following information:

   ·You were granted a Subclass 457 visa on 21 August 2017. It was originally valid to 21 August 2019 but was cancelled on 19 February 2019. Your visa was sponsored by JGC OCEANIA PTY LTD.

   ·Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased employment, the period must not exceed 60 consecutive days.

   ·You ceased being employed by your sponsor on or before 27 June 2018. On 19 February 2019, the date your visa was cancelled, you had not worked for your sponsor for more than 60 consecutive days.

   ·There is no information to indicate that you recommenced employment with your sponsor.

   ·A recent check indicates that no new relevant business nominations have been approved in respect of you since your visa was cancelled.

4. The applicant did not respond to the Tribunal’s invitation and there is no further information before it then was before the delegate.

5. 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

1. 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.

Does the ground for cancellation exist?

1. 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. Under this condition, “if the holder ceases employment – the period in which the holder ceases employment must not exceed 90 consecutive days”.

2. From the material before it, the Tribunal is satisfied of the following facts:

   ·The applicant was granted a Subclass 457 visa on 21 August 2017. It was originally valid to 21 August 2019 but was cancelled on 19 February 2019. This visa was sponsored by JGC Oceania Pty Ltd.

   ·The applicant’s Subclass 457 visa was subject to condition 8107 work restriction, which required in part:

   i.that he must not cease to be employed by his approved sponsor; and

   ii.that if he ceased employment, that the period must not exceed 60 consecutive days.

   ·The applicant ceased being employed by JGC Oceania Pty Ltd on or before 27 June 2018. On 19 February 2019, the date the applicant’s visa was cancelled, he had not worked for his sponsor for more than 60 consecutive days.

   ·There is no information to indicate that the applicant recommenced employment with your sponsor. Indeed, the opposite is true and that it was made clear to the applicant well in advanced that his role was coming to an end well before 21 August 2019. Indeed, an email from the JGC Oceania Pty Ltd Operations Manager to the applicant’s then migration agent noted that the applicant role was “… coming to an end in 2018”.

   ·There is no evidence before the Tribunal that any new business nominations have been approved in respect of the applicant since his visa was cancelled.

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

Consideration of discretion

1. 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 earlier by the applicant. Of particular note, the Tribunal has had particular regard to the untitled and undated document by the applicant that commences “Degree of hardship that may be caused to the visa holder or the visa holder’s family”. The Tribunal is concerned that at the time of writing that the applicant was supporting himself on “odd jobs” in Darwin.

2. The Tribunal has also had particular regard to the various correspondences between the applicant and the Commonwealth and Northern Territory governments. The Tribunal also notes the extensive International English Language Testing System (IELTS) testing that the applicant has undertaken, in addition to his extensive vocational and academic qualifications.

3. The Tribunal observes that the delegate’s decision is very well-reasoned and seemingly comprehensive. Conversely, the Tribunal also observes that the applicant has not placed any new material before it that was not before the delegate. In these circumstances, the Tribunal does not see circumstances in which its discretion should be exercised.

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

DECISION

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

Andrew George
Member