Ahmed (Migration)

[2021] AATA 5212

Ahmed (Migration) [2021] AATA 5212 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mujeeb Ahmed
Mrs Syeda Wajida Ahmed
Master Omar Ahmed
Master Anas Ahmed
Miss Amirah Ahmed

CASE NUMBER:  2015928

HOME AFFAIRS REFERENCE(S):          BCC2019/5139554

MEMBER:Amanda Upton

DATE:19 October 2021

PLACE OF DECISION:  Melbourne

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 19 October 2021 at 2:22pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – purpose for travel and stay in Australia – Automotive Air Conditioning Mechanic – workplace harassment – workplace injury and WorkCover claim – beyond the applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 October 2020 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breached condition 8107(3)(b) as he had ceased working for his sponsoring employer on 26 March 2019 and had not returned to work for that employer for more than 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. 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.

4. The applicants appeared before the Tribunal on 25 March 2021 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

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.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

8. 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. In this instance condition 8107 attached to the applicant’s visa. At 8107(3)(b) this condition requires that the visa holder must not cease employment for a period exceeding 60 consecutive days.

9. Whilst initially there were submissions made as to whether the ground for cancellation was made out, after discussion between the Tribunal and the applicant’s representative it was conceded that the ground for cancellation on the basis of the breach of condition s.116(1)(b) would not be and the submission was abandoned.

10. 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

11. 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’.

12. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant. ^[2]

    [1]    See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].

13. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

14. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8107, to which his visa was subject, prescribes in 8107(3) (b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

15. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

16. The applicant obtained his subclass 457 visa on 1 February 2018, it expires on 1 February 2022. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was AS & RR Nominees Pty Ltd ATF Laverton Accident Repair Centre Unit Trust. The employer indicated that the applicant ceased employment with them effective 26 March 2019.

    The purpose of the applicant’s travel and stay in Australia.

17. The applicant first arrived in Australia on 1 July 2011 as the holder of a student visa after having been living in Saudi Arabia and working for a bank as a Management Information Systems Analyst.

18. The applicant started working as a trainee mechanic in 2012 after undertaking 3 months of an unpaid ‘traineeship’.

19. The applicant subsequently completed his Certificate 111 in Automotive Technology and was able to obtain his full skills assessment after undergoing a technical assessment and demonstrating that he met the assessment criteria on the basis of his many years of work experience and his Certificate 111. He also completed his Diploma of Automotive Management in December 2014. He completed his Certificate IV in 2015. The applicant’s qualifications were awarded to him on the basis of practical assessments.

20. After completing these qualifications he obtained further qualifications to become licensed as an Automotive Air Conditioning Mechanic.

21. On 18 December 2017 the most recent employer’s nomination was approved and on 1 February 2018 the applicant’s 457 visa was also approved. This was after the applicant was required to, for various reasons detailed in his material provided to the Tribunal, complete his Certificate III again and undergo a further skills assessment.

22. The applicant began working for his current employer in August 2017. He sustained an injury at work in February 2019.

23. Despite the difficulties with his most recent employer and the significant efforts he has previously gone to in order to establish his qualifications, the applicant has undertaken a further skills assessment in order that he continue to work in the automotive industry.

24. Given this the Tribunal accepts that the applicant’s purpose for travel and stay in Australia remains to be consistent with the grant of the applicant’s subclass 457 visa.

    The extent of compliance with visa conditions

25. The applicant, on the face, has been non-compliant with his visa conditions for a significant period of time. The Tribunal, however takes into account the circumstances as to how this came to be and the consequent medical difficulties that the applicant has experienced and does not place weight on this factor in cancelling the visa.

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

26. The applicant provided to the Tribunal various medical reports indicating that the applicant suffers from adjustment disorder with mixed anxiety and depressed mood along with chronic pain disorder associated with the general medical condition and possible psychological factors, also that he was in August 2019 suffering from a major depressive disorder with anxious distress as a result of workplace bullying.

27. The Tribunal accepts the submission that the applicant is quite likely to suffer significant psychological and emotional hardship if his visa is cancelled.

28. The Tribunal also notes that the applicant has a young family who it may be inferred, have been impacted by the applicant’s medical and workplace issues and concludes that they will themselves experience emotional hardship if the visa was to be cancelled.

29. The Tribunal accepts generally, that the cancellation of a visa results in opportunities lost and disappointment. It also accepts that there is potentially a financial loss for the applicant.

30. The Tribunal considers that it is expected that there will be consequences to a visa cancellation and these are such consequences. The Tribunal, however, balances these matters against those that are unique to the applicant and concludes that significant weight should be given to this factor in not cancelling the visa.

    Circumstances in which ground of cancellation arose

31. The applicant states that he experienced workplace harassment during the course of his employment with the sponsor, which was exacerbated he injured his right ankle at work on 21 February 2019. It was submitted that these circumstances may have resulted in the termination of the visa holder’s employment on 26 March 2019. The applicant provided to the Tribunal an affidavit to this effect that was prepared for the purpose of his consequent WorkCover and personal injury matters in addition to a number of other documents relevant to the issues that he experienced with his employer.

32. The WorkCover Insurer rejected the applicant’s claim for compensation on 12 June 2019 and the matter was referred for conciliation before the Accident Compensation Conciliation Service (ACCS). As a result, the WorkCover Insurer agreed to pay the visa holder for his physical and psychological injuries occurred in his workplace.

33. The decision of the ACCS indicates that the applicant’s entitlement for psychological services would cease from 22 September 2020 and compensation for the reasonable costs of psychological services from 22 December 2020.

34. The Tribunal accepts the written submission from the applicant detailing the circumstances that ensued concerning his employer subsequent to his workplace injury and WorkCover claim. It is noted that the applicant’s employer notified the Department of their intention to withdraw the applicant’s nomination whilst there had been ongoing communication with them as to the applicant’s WorkCover claim and a clear assertion from the applicant that he had not abandoned his employment.

35. The Tribunal accepts the applicant’s evidence with respect to these matters and infers that the cessation of the applicant’s employment was a matter that was beyond his control.

    Past and present behaviour of the applicant towards the Department.

36. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

    
    
    

    Whether there would be consequential cancellations under s.140

37. The applicant has a wife and three children whose visas would be cancelled as consequent cancellations if his visa was to be cancelled.

38. The Tribunal notes the hardship that may be experienced by the consequential cancellation both to the applicant and his family and gives this consideration weight in favour of not cancelling the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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.

39. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case, he can depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

40. The Tribunal notes that it may be difficult for the applicant to leave the country in the current situation however also notes that the Australian Government has put in place several contingency options for visa holders who find themselves in Australia with limited options for returning home.

    Whether any international obligations including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation.

41. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations.  These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR).

42. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Accordingly, the Tribunal does not give this consideration any weight to these considerations, either in favour of or against cancellation of the visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

43. As the applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration, either in favour of or against cancellation of the visa.

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

    DECISION

45. 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.

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

    Amanda Upton
    Member