Ahmed (Migration)

[2019] AATA 4180

Ahmed (Migration) [2019] AATA 4180 (12 August 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Faez Ahmed
Mrs Zebika Hossain

CASE NUMBER:  1902581

HOME AFFAIRS REFERENCE(S):           BCC2018/5123122

MEMBER:Antoinette Younes

DATE:12 August 2019

PLACE OF DECISION:  Sydney

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

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

Statement made on 12 August 2019 at 10:39am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – sponsor ceased operation – unable to secure new nomination – purpose of visa not fulfilled – potential hardship – decision under review affirmed

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 25 January 2019 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) attached to 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. 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 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 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 applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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 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)(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?

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 8107(3)(b) 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. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review.

10. Specifically, the Tribunal advised that:

    ·The standard business sponsor that nominated the applicant in the most recently approved nomination for the visa is SHKI PTY LTD (the sponsor), as a real estate representative (612115).

    ·The Department was advised that the sponsor ceased trading on 20 June 2018, approximately 15 months after the grant of the visa. Consequently, the applicant was therefore taken to have ceased employment with the sponsor effective from 20 June 2018.

11. The nominated occupation is not one specified in the relevant instrument referred to in subclause 8107(3A) to exempt the applicant from having to comply with the requirements of subclauses 8107(3)(a)(ii). Consequently, while the applicant continues to hold the subclass 457 visa, he can only lawfully work in Australia for either the sponsor or an associated entity of the sponsor.

12. On 16 January 2019, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC). The applicant did not respond to the NOITCC.

13. The applicant agreed in the course of the hearing that his employer ceased trading on 20 June 2018 which meant that he had ceased employment with the sponsor from 20 June 2018. He provided explanations as discussed in the relevant parts of the decision.

14. The Tribunal is satisfied on the evidence that the applicant has not complied with condition 8107(3)(b). For those 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

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of 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’.

    ·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

16. The applicant came to Australia in July 2015 as the primary holder of a subclass 457 visa. The secondary applicant who is the applicant’s wife accompanied him. The applicant worked in his nominated occupation for approximately 15 months.  The Tribunal is satisfied that the purpose of the applicant’s travel to Australia is consistent with his subsequent employment. The Tribunal gives weight in favour of the applicant in terms of the first aspect of this consideration.

17. The applicant gave evidence that subsequent to the sponsor ceasing operation, he was looking for other nominations but was unsuccessful. He discussed changes in real estate market and how difficult it has become in light of those changes. He stated that he is currently working[1] part-time, for a real estate agency on commission basis. He unsuccessfully applied for a student visa.

    [1] The applicant gave evidence that he has been granted a Bridging Visa with work rights.

18. The Tribunal acknowledges that the applicant is currently working, however, the Tribunal does not consider this to be a compelling need for the applicant to remain in Australia. The Tribunal gives little weight in the applicant’s favour as far as this aspect of the consideration is concerned.

    ·the extent of compliance with visa conditions

19. The primary purpose of the subclass 457 is to enable an overseas skilled worker to work in Australia.  The applicant has breached condition 8107(3)(b) attached to his 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. The Tribunal considers condition 8107(3)(b) to be a fundamental condition attached to the subclass 457 visa.

20. The applicant gave evidence that the sponsor had promised him a transfer to another entity but subsequently told him that there was no other choice. He said they decided to “keep quiet”. When the Tribunal asked him about what he meant, he initially did not answer but eventually said he meant that the sponsor was “silent”. He stated that he tried to find other sponsors but had difficulties because he needed to demonstrate standards of work. He stated that he applied for a student visa which was refused as a result of the cancellation of his visa.

21. Although the applicant is currently working part-time on commission basis, that does not overcome the breach of condition 8107(3)(b), nor does it mean that he is complying with that condition.

22. The Tribunal acknowledges the applicant’s explanations. However, the Tribunal considers breach of condition 8107(3)(b) to be serious as it goes to the core of the purpose of the visa. The Tribunal has given this aspect significant weight in favour of cancellation.

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

23. The applicant gave evidence that he worked in banking when he was in Bangladesh. He stated that he had a good position but had a dream in coming to Australia. He stated that if he were to return to Bangladesh, he would not be able to get the same position and that he would need to start at a lower level. He stated that Bangladesh is economically challenged and that his parents and parents-in-law are not working. He stated that he and his wife provide them with financial support. He stated that he has had positive feedback in relation to his work and would like an opportunity to find another employer.

24. The Tribunal is satisfied that the applicant and his wife may be required to leave Australia earlier than the initial cessation date of the subclass 457 visa which may cause financial and emotional hardship. There would be disappointment in the applicant not being able to pursue a career in Australia, something to which he had aspired.  The Tribunal recognises that cancellation of the visa has adverse impacts on the applicant and his family, however, the Tribunal does not consider those impacts to represent a degree of hardship to mean that the visa should not be cancelled.

25. The Tribunal acknowledges that if the applicant’s visa were to be cancelled, he and the secondary applicant could be detained and be subject to removal from Australia.  Given that those are intended legislative consequences, the Tribunal gives this aspect limited weight in the applicant’s favour.

26. Overall and for the above reasons, the Tribunal has given this aspect limited weight in favour of the applicant.

    ·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

27. The ground for cancellation arose as a result of the breach of condition 8107(3)(b). 

28. In submissions to the Tribunal dated 29 July 2019, the applicant stated that:

    ·In about mid-June 2018, the sponsor advised him of financial difficulties and indicated that they required some time to pay his dues. The sponsor advised that they were planning to restructure the business and may establish a new entity to transfer the applicant’s sponsorship to the new business. The sponsor stopped paying the applicant’s salary on 30 June 2018.

    ·Around end of July 2018, the applicant asked the sponsor about the claimed new sponsor and he was advised that the company structure is pending. Around early August 2018, the sponsor told him that they could no longer continue with the sponsorship and that the Department had been notified. The applicant asked for a termination letter which to date has not been issued or outstanding wages paid.

    ·From 14 August 2018 until December 2018, he unsuccessfully searched for a new sponsor. Around mid-December 2018, he applied for a student visa which was refused following the cancellation of the subclass 457 visa.

    ·The Department made an error in reaching a conclusion that he has breached condition “8107 (3A)”.

29. In the course of the hearing, the Tribunal clarified to the applicant the reasons for the cancellation of the visa. The Tribunal explained that the visa was cancelled because he had breached condition 8107(3)(b).

30. In oral evidence, the applicant stated that the sponsor’s cessation of operation is beyond his control. The Tribunal accepts that ceasing operation is outside the applicant’s control. The Tribunal accepts the applicant’s evidence that he has tried to find a new sponsor but has been unsuccessful. The Tribunal gives those aspects weight in the applicant’s favour.

31. However, the applicant had a choice; he did not have to breach his visa condition and he could have departed Australia to avoid the breach. He clearly had difficulties in finding another sponsor and instead he lodged a student visa in December 2018, some six months after he had ceased employment with the sponsor.  The Tribunal considers those matters to be within the applicant’s control and the Tribunal gives this aspect some weight in favour of cancellation.

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

32. The applicant did not respond to the NOITCC. He gave evidence that he was advised by a former migration agent who told him he need not respond.

33. The Tribunal finds it difficult to accept, although possible, that a registered migration agent would give such an advice. However, the Tribunal has decided to give this aspect neutral weight.

    ·whether there would be consequential cancellations under s.140

34. The applicant’s spouse is the holder of a secondary subclass 457 visa and she is currently onshore with the applicant. Her visa would be automatically cancelled as a result of the cancellation of the applicant’s visa. The visa would be cancelled pursuant to s.140 by operation of law.

35. Cancellation of her visa would result in a degree of hardship including financial and emotional. Although she is currently working in Australia, if required and unless other arrangements are made, she would need to depart Australia. It is up to the applicant and his spouse to decide when and how they depart Australia, in case of cancellation.

36. Overall, the Tribunal gives limited weight in favour of the applicant under this consideration.

    ·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

37. There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation. If the applicant chooses to remain in Australia unlawfully, he and his spouse could be liable for removal and detention.  The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and in the applicant’s case, do not mean that the visa should not be cancelled.

38. The Tribunal gives this consideration neutral weight.

    ·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

39. There is no evidence before the Tribunal that any international obligations would be breached in case of cancellation.

40. The Tribunal gives this consideration neutral weight

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

41. The subclass 457 visa is a temporary visa intended to fill a shortage in the Australian employment market. The visa is not intended to be permanent and there is no expectation that the holder would eventually be able to obtain a permanent visa.

42. The Tribunal gives this factor neutral weight.

    ·any other relevant matters

43. There are no other relevant matters for the Tribunal is consideration.

44. The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. There are factors in favour of cancellation and there are those against cancellation. The Tribunal considers the most significant factor in favour of the applicant to be the potential hardship that he would suffer in not being able to continue his employment in Australia. This however must be considered in the context of the circumstances that gave rise to the cancellation which weigh heavily in favour of cancellation.  The applicant has breached a significant condition attached to his visa and although the initial reason was beyond his control in that his sponsor ceased operating, the applicant had control over what eventuated subsequently.

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

    DECISION

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

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

    Antoinette Younes

    
    Senior Member