Ahmed (Migration)

[2020] AATA 6064

Ahmed (Migration) [2020] AATA 6064 (1 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sayed Ishtiak Ahmed

CASE NUMBER:  1935223

HOME AFFAIRS REFERENCE(S):          BCC2019/1472693

MEMBER:Mark O'Loughlin

DATE:1 December 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 01 December 2020 at 4:33pm

CATCHWORDS
MIGRATION – cancellation – 457 (Temporary Work (Skilled)) – breached condition 8107 – no longer employed by his sponsor – employment was terminated ­– no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 December 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Business (Long Stay)) 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 not complied with a condition of his visa, namely condition 8107 which requires at (3)(b) that he must not cease employment 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. The applicant appeared before the Tribunal on 22 October 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant provided the following documentation on which the Tribunal relied in making its decision:

   a.A copy of the delegate’s decision dated 9 December 2019;

   b.A copy of a letter of offer and written agreement from Kings Own Institute dated 11 October 2018;

   c.An email from the applicant to the National Registry Mailbox dated 13 October 2020; and

   d.Submissions from the applicant’s representative dated 7 October 2020;

6. The Tribunal has not relied on any other documents in making its decision.

7. Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. Relevant 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 the submissions of 7 October 2020 the applicant agrees that condition 8107 attached to his visa.

9. Condition 8107 (3) applies where the last substantive visa held by an applicant was a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018).

10. Condition 8107(3)(b) provides that if the holder of such a visa ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days.

11. The delegate found that condition 8107(3)(b) applies to the applicant’s visa.  The applicant, in the submissions of 7 October 2020, implicitly conceded that it does in noting that he passed 60 days while trying to secure employment.

12. The Tribunal is satisfied that condition 8107(3)(b) applies to the applicant’s visa and so finds.

13. The delegate found, and the applicant conceded in submissions, that the applicant ceased employment for a period of more than 60 days.

14. In evidence the applicant said that he started work for Coranton Pty Ltd, the sponsor of his only 457 visa, on 17 August 2018.

15. He said, and the Tribunal accepts, that he was working in a commercial kitchen doing what he described as “pan section” cooking.  His evidence was that he got that job through an agency.

16. He said that he ceased employment with Coranton Pty Ltd on 17 September 2018.

17. The applicant gave evidence that he was not happy in the work and that in particular he did not get along well with the head chef.  He said that he felt as though, as the only Asian in the kitchen, he was unfairly blamed for anything that happened.

18. Having said that, he said that he did not believe that the problem arose from racism but from a difference in personalities.

19. He said that he was fired from that job.  At the time of the hearing there was nothing in writing before the Tribunal to show the circumstances of the applicant ceasing employment and the applicant agreed to send a copy of a letter he had been sent by his employer.

20. On 27 October 2020 the Tribunal received a copy of a letter dated 19 August 2018 sent by Momento Hospitality to the applicant.

21. The letter refers to the termination of the applicant’s employment effective 14 September 2018.  This suggests that the date of the letter, 19 August 2018, is a typographical error.

22. Although Momento Hospitality appears to be a trading name rather than the name of the company that employed the applicant, the Tribunal notes that the letter suggests that the applicant was employed not by the sponsor, Coranton Pty Ltd but by TGH Operations Management Pty Ltd (the Governor Hotel).

23. The Tribunal relies on the oral evidence of the applicant and the findings of the delegate in the decision provided by the applicant to find that the applicant ceased employment on 17 September 2018.

24. 60 consecutive days from the cessation of the applicant’s employment had elapsed by 18 November 2018.

25. The Tribunal relies on the delegate’s findings and on the oral evidence of the applicant to find that he did not secure a further nomination before his visa was cancelled on 9 December 2019. The applicant agreed in evidence that he was in breach of his visa for more than 60 days.

26. The Tribunal finds that the applicant did not comply with condition 8107 for a period of just over a year.

27. 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

28. 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’.

29. The applicant gave evidence that he came to Australia in October 2011 study a Bachelor of IT. He started working in November 2011 and worked in retail and as a cleaner before he started working in hospitality.

30. The applicant said that he first started working for Coranton Pty Ltd on 17 August 2018 and he worked there until 17 September 2018.

31. He said he got that job through an agency.

32. The applicant gave evidence that he left because the environment in the kitchen was not suitable for him.

33. He said that he was the only Asian in the kitchen and that it was too busy and when anything happened, he took the blame.

34. The applicant further indicated that he was uncomfortable with the head chef although he did not think the head chef was racist. He said the problem was that he just didn’t get along with the head chef.

35. The Tribunal refers to the letter from Momento hospitality dated 19 August 2018, the contents of which are set out above.  That letter says that the applicant’s employment was terminated on 14 September 2018 as the applicant’s performance and suitability for the job were not adequate.

36. The applicant said that he hoped to change his nomination but was unable to do that within the 60 days contemplated by his visa conditions and so he started studying at the Kings Own Institute.  He said that he did that in the hope that he may be able to change to a student visa.

37. The Tribunal noted that correspondence from the Kings own Institute that the applicant had provided, being a letter of offer was dated 11 October 2018, was well within 60 days that the applicant had to find another sponsor.

38. The applicant said that he was still looking for a sponsor but was thinking of applying for a student visa but he could not get a confirmation of enrolment. He said that he had to start studying in October 2018 or he would risk missing the semester in which case there would be a four-month gap.

39. The Tribunal asked whether he approached the department or sought other advice and the applicant said that he spoke to his agent who told him he had to find a new sponsor.

40. He said that the agency did not have anyone who could sponsor him.

41. The applicant said that after he’d been studying for about a month, he was contacted by a former employer with a job offer. He said that that was towards the end of February 2019.

42. He said that the former employer was Tony Izzard. He said that he started working for them and applied for a nomination on 31 May 2019.

43. He said that that nomination was refused on 1 November 2019 and he applied for review on 20 November 2019. It appears that the delegate in this matter was not aware that that application for review had been made. 

44. The applicant said, and the Tribunal accepts, that there has not yet been a review of that decision.

45. With regards to the subject application, there is no evidence that the applicant has a compelling need to travel to or remain in Australia and there is no evidence that the applicant, having ceased the employment to which his 457 visa related, has secured a further nomination.

46. The applicant gave evidence that he was concerned about his inability to secure a further nomination had so attempted to qualify for a student visa instead.

47. The applicant also gave evidence that would be very hard for him to return to Bangladesh as he has been in Australia for almost 9 years.

48. The Tribunal observes that the purpose of a subclass 457 visa was to satisfy skills shortages and because he has been unable to secure further nomination the evidence suggests that the applicant’s travel to and stay in Australia are not for purposes consistent with the purposes of a subclass 457 visa.

49. The Tribunal accords this consideration some weight in favour of cancelling the applicant’s visa.

50. The Tribunal has found that the applicant failed to comply with condition 8107 of his visa for a period of just over one year. The Tribunal finds this to be a substantial failure to comply with visa conditions and accords it significant weight in favour of cancelling his visa.

51. The applicant gave evidence that would be hard for him to return to Bangladesh after 9 years in Australia although he said that he would be safe in Bangladesh and did not fear returning there.

52. The Tribunal accepts that the applicant may suffer some emotional hardship and some financial hardship if he is obliged to return to Bangladesh and the Tribunal accords this a little weight against cancellation of the applicant’s visa.

53. The applicant gave evidence that he resigned from his job with his sponsor because of a clash of personalities. Upon being pressed he changed his evidence to say that he had been fired but he said that that was the employer’s fault and that he was under too much pressure.

54. The applicant did say that his employer had told him that they were not happy with his performance and had fired him for that reason.

55. The letter that he provided from his employer is headed “termination of employment in probation” and suggests that the applicant’s employment was terminated as a result of the performance review.

56. There is some tension between the letter from the applicant’s employer (which suggests that the employment was terminated due to the applicant’s performance and his suitability for the role) and the applicant’s evidence which is that he was subjected to unfair pressure in the job.

57. The Tribunal is not satisfied that the circumstances in which the ground for cancellation arose were beyond of the visa holder’s control and accords this consideration little weight against cancelling the visa.

58. There is no evidence of past or present behaviour in the visa holder towards the department that should weigh in favour of cancellation of the visa on the Tribunal accords this factor no weight in favour of cancelling the visa.

59. There is no evidence that there would be any other visa cancellations under section 140 of the act of the Tribunal accords this consideration no weight either in favour of or against cancelling the visa.

60. If the visa is cancelled the visa holder will become an unlawful noncitizen.

61. He will need to apply for a bridging visa or permanent visa to remain in Australia that if he is not granted another visa, he will be liable to detention and removal from Australia. Future visa applications to Australia may be restricted.

62. The Tribunal accords these considerations little weight against the cancellation of the applicant’s visa as they generally the ordinary consequences of cancellation of the visa for breach of condition.

63. There is no evidence that any of Australia’s international obligations would be breached by cancellation of the applicant’s visa.

64. The applicant asked the Tribunal to accept that is a genuine applicant and tried to comply with the conditions of his visa but could not manage to find another job on time. The Tribunal finds that these considerations do not assist the applicant and accords them little weight against the cancellation of the visa.

65. The Tribunal has considered all of the above factors and weighed them against each other.

66. The Tribunal has regard to the extent of the applicant’s breach of condition 8107 and the fact that despite his evidence that he is keen to remain in Australia, and his efforts to obtain a further nomination, he has not been successful in so doing.

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

    DECISION

68. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Mark O'Loughlin
    Member