Ahmed (Migration)

[2021] AATA 4065

Ahmed (Migration) [2021] AATA 4065 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Faisal Ahmed
Ms Jabeen Rafiq

CASE NUMBER:  2101283

HOME AFFAIRS REFERENCE(S):          BCC2020/2626110

MEMBER:Michael Cooke

DATE:12 October 2021

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 482 - Temporary Skill Shortage visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 12 October 2021 at 1:31pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant breached condition 8507 –  applicant ceased employment for a period exceeding 60 consecutive days – factors beyond his control – impact of the pandemic on businesses – genuineness in trying to secure a new sponsor –– decision under review set aside

LEGISLATION
Migration Act 1958, ss 116,140

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 January 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage 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 breached condition 8507(5) attached to his visa. The other applicant’s visa was cancelled pursuant to s.140 of the Regulation consequentially. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

4. The applicants appeared before the Tribunal on 12 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the secondary applicant Ms Rafiq.

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 8607(5) attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which the visa holder ceases employment must not exceed 60 consecutive days.

9. The applicant has admitted that the relevant condition has been breached but that it was breached due to ‘factors beyond his control’. He explained the following in response to the delegate:

   ·He and his wife were unfortunate victims of the COVID-19 pandemic, when in August 2020, he was made redundant from his role with the sponsor;

   ·He submits he has significant future employment potential as a senior executive, and he has been in discussions with a number of major global companies regarding his recruitment;

   ·Due to his level as a senior executive, the recruitment process for these roles are onerous and lengthy, and delays have been further compounded by the holiday period;

   ·His skills, knowledge and experience would be an asset to Australia and he would be a significant contributor to the post-COVID-19 economic recovery;

   ·He is currently exploring options for alternative visas however he requires certainty that his current Temporary Skill Shortage visa will not be cancelled, thereby interrupting the application process of any further visas;

   ·He fears that is forced to return to the UK, he and his wife will be at increased risk of contracting COVID-19;

   ·Furthermore, he will be forced to pack up his life in Australia and start fresh in the UK after nine (9) years, which will be highly stressful and traumatic;

   ·He and his wife have sufficient funds to support themselves in Australia for up to six (6) months without employment;

   ·He believes if not for the impacts of COVID-19, he would have been able to quickly secure employment, or else his wife would also have been able to secure sponsorship with her employer;

   ·He requests his visa is not cancelled at this time and that he be given the opportunity to secure further employment and also to be granted a further visa.

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’.

    Consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·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

12. The applicant was granted a Temporary Skill Shortage visa on 12 February 2020 to work in a nominated occupation for an approved sponsor. The Department received notification from the sponsor, NTT AUSTRALIA DIGITAL PTY LTD, that he ceased employment with them effective 14 August 2020. As he is no longer working in a nominated occupation for an approved sponsor and has failed to secure a new nomination, he is no longer in Australia in accordance with the original purpose of his visa.

13. The applicant submits that his intention is to continue working in accordance with his current visa. He has provided the Tribunal with copious evidence of his attempts to secure employment with a new employer. He further states that he intends to apply for an alternative visa in order to continue working in Australia. The Tribunal notes, however, that Department records indicate no new applications for alternative visas have been lodged. The applicant explained (in oral evidence) that his Bridging E visa status was a barrier to securing a new sponsor/nominator.

14. The Tribunal is aware that at time of decision he has a compelling reason to remain in Australia as it his wish to make it his home. He has spent 11 years in Australia and has been thwarted by failures of potential sponsors to continue with their sponsorships after agreeing to do so. His wife has an important job in the NSW Health Department assisting with the pandemic response and a potential visa sponsorship from them (she informs) later in the year.

15. The Tribunal gives this consideration some weight against cancellation.

    ·the extent of compliance with visa conditions

16. The Tribunal has no information to suggest the applicant has been non-compliant with any other condition than the one the visa was subject to. This non-compliance was due to factors beyond his control.

17. Consequently, the Tribunal gives this consideration some weight against cancellation.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

18. The Tribunal is aware that the parties are undergoing significant psychological and financial hardship from the confluence of the pandemic, its effects on national employment and its impact on the parties’ personal ability to secure a new sponsor and have peace of mind as they wish to remain in Australia despite living all over the world.

19. The Tribunal gives this consideration heavy weight against cancellation.

    ·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

20. The ground for cancellation arose because the applicant ceased employment with the approved sponsor on 14 August 2020. A period in excess of 60 days has lapsed and he has since failed to secure a new nomination with an approved sponsor.

21. He submits that since ceasing employment with the sponsor, he has continued to look for employment with a new sponsor. He has provided evidence in support of his claims and evidently his professional experience and skills are sought after. He submits, however, that due to his level as a senior executive, the recruitment process is lengthy and he has been unable to secure employment within the requisite timeframe.

22. Evidence has been provided to the Tribunal recently which indicates his many attempts to secure employment immediately following cessation of employment with the sponsor. The impacts of COVID-19 have also affected his ability to secure a new sponsor. The Tribunal is satisfied that the circumstances in which the ground for cancellation arose were ‘beyond the applicant’s control’.

23. The Tribunal gives this consideration maximum weight against cancellation.

    ·past and present behaviour of the visa holder towards the Department

24. There is no other information before the Tribunal to suggest the applicant has been uncooperative with the Department or Departmental staff.

25. The Tribunal gives this consideration a little weight against cancellation.

    ·whether there would be consequential cancellations under s.140

26. If the visa were cancelled, the applicant’s wife would also be cancelled. She is engaged at the present in some important work in the NSW Department of Health assisting with the E-response to the COVID19 pandemic - she informs in the applicant’s submission.

27. The Tribunal gives this consideration significant weight against 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 and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

28. The Tribunal observes that if the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act - if he does not voluntarily depart Australia. He would also be affected by section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia. Cancellation under these grounds does not impose a Public Interest Criterion 4013 risk factor, so cancellation will not prevent him from being granted a temporary visa in the future.

29. The Tribunal gives this consideration significant weight against cancellation.

    ·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

30. Not applicable.

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

31. The Tribunal is aware that the applicant has been in Australia for considerable time and wishes to make it his home in preference to other countries.

32. The Tribunal gives this consideration some weight against cancellation.

    ·any other relevant matters

33. The applicant informs that were his visa cancellation to be set aside he would be eligible to apply for a Global Talent visa.

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

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

36. The Tribunal has no jurisdiction with respect to the second named applicant.

    Michael Cooke
    Senior Member