Ali (Migration)

[2021] AATA 1565

Ali (Migration) [2021] AATA 1565 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Imran Ali

CASE NUMBER:  2018007

HOME AFFAIRS REFERENCE(S):          BCC2020/1930918

MEMBER:Amanda Upton

DATE:24 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 24 March 2021 at 9:42am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment with sponsor over 60 days – impact of COVID19 shutdown on business – applicant pursued further study – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8, Condition 8107

CASES

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 December 2020 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).

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 6 March 2020 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. The applicant appeared before the Tribunal on 23 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

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

6. 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

7. 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.

8. The applicant confirmed to the Tribunal that he accepted that he had not been employed for a period of time that exceeded 60 days.

9. There is nothing in the evidence that the applicant gave to the Tribunal that is inconsistent with the existence of grounds for cancellation.

10. The Tribunal finds that the applicant ceased the relevant employment for a period exceeding 60 consecutive days and had breached condition 8107 that attached to his visa.

11. 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

12. 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’.

13. 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].

14. 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.

15. 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)hat, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

16. 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.

17. The applicant gave evidence that he had first come to Australia in 2008 for the purpose of completing study. He completed a number of Diploma courses and relevantly to his current subclass 457 visa, a Certificate III and IV in auto mechanic related subjects.

18. The applicant is a 39-year-old Pakistani man. He is single and lives with his brother’s family whilst in Australia.

19. The applicant obtained his subclass 457 visa on 5 April 2017. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was Quick Auto Repairs Pty Ltd. The applicant ceased employment with the company on 6 March 2020 and the applicant is not aware if the business is still operating, last having contact with it 6-8 months ago.

20. The applicant’ subclass 457 visa is due to expire on 5 April 2021.

Purpose of the applicant’s travel and stay in Australia

1. The applicant came to Australia for the purpose of study and subsequently obtained a subclass 487 visa for the purpose of being able to work in Australia in a skilled occupation which could not be filled from within the Australian workforce. The Tribunal accepts that this is not an unusual course for a person to take, finishing study and progressing to related work. The Tribunal considers that the applicant’s purpose for stay in Australia moved from the purpose of study to a work purpose.

2. The applicant told the Tribunal that he has now lodged a further student visa application for the purpose of completing his Diploma in Auto Management. This visa application was lodged on 28 November 2020 and is currently with the Department for consideration. He told the Tribunal that he considers that he now has two options, to study or to work but it is hard to get a job as a mechanic and therefore he now wants to study and finish his Diploma of Auto Management. He has not been able to commence doing this as currently he does not have study rights on his Bridging Visa E.

3. The applicant was stood down from his job in March 2020 and was told at the time this was because of the impact COVID had on the business. He was told that he would be reinstated when the situation improved. He was not called back by the business for re-instatement and the last contact that he had with them was 6-8 months ago when he was again told that here was no work. The Tribunal accepts that the circumstances of the applicant losing his employment were at the time beyond his control and that others in the business were stood down at the same time.

4. The Tribunal considers that, on the basis of the applicant’s evidence, his purpose of being in Australia is no longer to work but rather to pursue further study and gives this some weight in favour of cancelling the visa.

Extent of the applicant’s compliance with visa conditions

1. There are no known instances of non-compliance with visa conditions (including the applicant’s Subclass 457 and bridging visas), apart from the applicant’s non-compliance with condition 8107(3)(b), attached to his visa.

2. The applicant has been without employment since 6 March 2020, a period of over 12 months. The Tribunal considers that this is a significant time to be in breach of the visa conditions. The Tribunal accepts that the circumstances with the COVID pandemic over the last year contributed to the applicant losing his job initially and it being more difficult than perhaps otherwise to obtain further employment. The loss of employment was beyond his control at the time however the Tribunal does not consider that the applicant’s position since losing that employment has been solely due to the circumstances of the pandemic.

3. Even taking into consideration the impact of the pandemic, the Tribunal considers that the applicant has had ample time to find a new sponsor. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 12 months since the original cessation of employment represents a significant breach of condition 8107.

4. The Tribunal therefore gives this weight in favour of cancelling the visa.

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

1. The applicant told the Tribunal that it will be emotionally hurtful for both him and his brother’s family if his visa was to be cancelled. This is due to the fact that he has worked hard and invested time and money that will go to waste. He would regret it a lot if his visa was to be cancelled.

2. Whilst not specifically raised by the applicant, the Tribunal notes that the applicant has been residing in Australia for over 12 years and such accepts that it most likely would cause some emotional hardship if he were to have to leave the place he has been living in for such a length of time.

3. 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. The Tribunal considers also that it is expected that there will be consequences to a visa cancellation, and these are such consequences. As such the Tribunal gives minimal weight to these considerations raised by the applicant.

Circumstances in which ground of cancellation arose.

1. The applicant obtained his subclass 457 visa on 5 April 2017. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was Quick Auto Repairs Pty Ltd. The applicant ceased employment with the company on 6 March 2020 and the applicant is not aware if the business is still operating, last having contact with it 6-8 months ago.

2. The applicant was stood down from his employment, being told that it was due to the COVID pandemic, two others were stood down at the same time. The applicant was also told that the employer would contact him for reinstatement when the situation improved. The applicant was not called back by the employer. He contacted the employer approximately 6-8 months ago however they told him that they were still not in a position to hire him.

3. The applicant told the Tribunal that he had applied for 7 other jobs but was unable to secure employment as the situation with COVID was so bad. He states that he did not get a response to his enquires. He stated that he had tried to find a job online and had dropped off resumes to various places. He also stated that due to him looking for employment during the recent 5 day lockdown he was unable to find anything. He last looked for work 2 weeks ago by dropping off resumes and asking for referrals from friends.

4. The Tribunal has had regard to the circumstances of the pandemic and the timing of the applicant’s loss of work however notwithstanding these matters, considers that the applicant has had sufficient time to be able to secure an alternative sponsor. The Tribunal gives this weight in favour of cancelling the visa.

Past and present behaviour of the applicant towards the Department.

1. 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

1. There are no other visa holders associated with this visa application, therefore the Tribunal is satisfied that there would not be any consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled.

2. The Tribunal gives no weight to this consideration, either in favour of or against cancellation of 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.

1. 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.

2. 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.

1. 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).

2. 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.

1. 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.

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

   DECISION

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

   Amanda Upton
   Member