Ali (Migration) - [2019] AATA 2421

Ali (Migration) [2019] AATA 2421 (25 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abid Ali
CASE NUMBER:  1838114
HOME AFFAIRS REFERENCE(S):           BCC2018/5358664
MEMBER:Katie Malyon
DATE:25 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 25 June 2019 at 5:28 pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – written request from visa holder to cancel the visa – ceased employment with sponsor – consideration of discretion – unable to secure new sponsorship – purpose of visa not fulfilled – mental health issues – work-related discrimination claim – holder of bridging visa – travel limitation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Condition 8107
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 December 2018 to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the review applicant, Pakistani national Mr Abid Ali, under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled Mr Ali’s Subclass 457 visa under s.116(1)(g) of the Act on the basis that Mr Ali had requested the Minister, in writing, that his visa be cancelled. A copy of the delegate’s decision was provided to the Tribunal.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
Mr Ali is a 33 year-old from Karachi, Pakistan. His Subclass 457 visa was granted on 4 April 2017 for a period of 4 years on the basis of a nomination in the occupation of Residential Care Officer made by standard business sponsor Global Disability & Health Care Services (the Company). The Company operates a group of aged care facilities in Jannali, Birrong, Campbelltown and Theresa Park.
On 9 November 2018, Mr Ali emailed the Department and requested that the Department cancel his 457 visa because of his ‘unlawful termination and unlawful dismissal’ by his employer/sponsor.
Subsequently, on 13 December 2018, the Department issued Mr Ali a notice of intention to consider cancellation (NOICC) of his Subclass 457 visa. It did so on the basis that it had received a request from Mr Ali, in writing, that his Subclass 457 visa be cancelled consistent with s.116(1)(g) of the Act and r.2.43(1)(g) of the Migration Regulations 1994 (the Regulations). The NOICC invited Mr Ali to respond in writing within 5 working days with confirmation that he fully understands the consequences of cancellation of his Subclass 457 visa.
The Tribunal notes that the consequences of visa cancellation are set out in detail by the delegate in the NOICC. Relevantly, the NOICC states that:
‘When you applied for your…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ali (Migration)

Details

AGLC: Ali (Migration) [2019] AATA 2421
Case: [2019] AATA 2421
Decision Date: 25 June 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Ali for review of the decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. Mr Ali had requested the cancellation of his own visa, citing unlawful termination and dismissal from his employment. He had also applied for a Protection visa, which was pending. The Tribunal considered Mr Ali's mental health issues, his claims of discrimination and harassment, and his financial inability to pursue legal action in the Fair Work Commission.

The primary legal issue before the Tribunal was whether to affirm the decision to cancel Mr Ali's Subclass 457 visa. This involved considering the discretionary power to cancel a visa, the purpose of Mr Ali's stay in Australia, and the circumstances surrounding his request for cancellation and subsequent employment situation. The Tribunal also noted, in the alternative, that Mr Ali's employment had ceased more than 60 days prior to the cancellation, which would have provided grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) for failing to comply with a visa condition.

In its reasoning, the Tribunal acknowledged that while policy documents from the Department of Home Affairs were not binding, they provided relevant considerations for the exercise of discretion. The Tribunal independently assessed the material before it, noting that Mr Ali had initially arrived in Australia to study and was later granted the Subclass 457 visa to fill a skills shortage. His employment ended on 16 August 2018, and he requested visa cancellation on 9 November 2018. Despite his mental health issues and claims of discrimination, Mr Ali had secured a Bridging E visa with work rights and had been employed since February 2019. The Tribunal concluded that, considering all circumstances, the visa cancellation should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the commencement of the hearing, Mr Ali provided the Tribunal with:1)a copy of the signed Complaint Form dated 20 August 2018 lodged with the ADB and which sets out the handwritten details of why Mr Ali considers he has been discriminated against or harassed by staff and management of Sylvanvale and the Company;[16] and, 2)a Notice of Listing in NCAT of Mr Ali’s case against Sylvanvale and the Company.[17] The matter is listed for Leave Hearing (Equal Opportunity) on 7 May 2019 at 12 noon. This follows finalisation of Mr Ali’s complaint to the ADB and referral of the complaint to NCAT on the basis his complaints are lacking in substance (see above at para [16]).Mr Ali’s evidence[16] Ibid ff 146 - 148[17] Ibid f 149 Asked to explain documentation he had handed up at the hearing, Mr Ali told the Tribunal that he is not pursuing legal action in the Fair Work Commission (the Commission) because he cannot afford to do so after receiving advice from Marrickville Legal Aid. Instead, they advised him to pursue a complaint at the ADB, which he told them he was already doing. He added that, after he told the solicitor at Legal Aid about his case, the lawyer said he was ‘an idiot’ and he does not believe the lawyer gave him good advice. Mr Ali said he was really hoping to have a face-to-face hearing in the Commission but recognises that he does not have the money to pursue his claim there. The Tribunal provided Mr Ali with a copy of its brochure which contains contact details of the NSW Law Society for referral to other pro bono workplace lawyers. At the outset, Mr Ali told the Tribunal he had sought review as his Subclass 457 visa was cancelled because he ‘had a mental condition’ and wanted ‘the Tribunal to give him a visa again’ because he had lost it due to his ‘stupidity’. He added: ‘I was under so much pressure I got it cancelled’. Asked to explain this comment, he said ‘I asked the Department to cancel my visa but I did not know what I was doing’. The Tribunal referred to Mr Ali’s first email to the Department dated 9 November 2018 requesting cancellation of his visa and observed that, in his email, he:·requests cancellation of his 457 visa due to ‘unlawful termination & unlawful dismissal’;·provides full details of his 457 visa including grant number, grant date as well as passport details, address and mobile number; and, ·states that he had applied on 17 October 2018 for a Protection, Temporary Protection or Safe Haven Enterprise Visa (866, 785, 790) and provides a transaction reference number. Mr Ali confirmed the contents of his email to the Department about the cancellation and told the Tribunal that, at the time, he ‘did not know how it all worked’. On 20 November 2018, the Department acknowledged Mr Ali’s email requesting cancellation of his visa and noted that, amongst other things, the process of visa cancellation is not automatic and it may take some time weeks to finalise. As set out above at para [7], the Department also clearly stated in its acknowledgment that, if his Subclass 457 visa is cancelled, the Bridging A visa granted to Mr Ali and his family in association with their (Protection) visa application will cease, they will become unlawful and, although they may have an opportunity to apply for a Bridging E visa, this visa may be granted without work rights. Mr Ali was invited to call the Department on 131 881 if he has any questions about the cancellation process. He told the Tribunal he called the Department around 10 times to request cancellation of his Subclass 457 visa.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.Katie MalyonMember

Ratio Decidendi

Legal Principle Established

In passing, the Tribunal notes that, in the alternative, it would have been open to the delegate - and it is therefore open to the Tribunal - to find that, based on evidence provided by Mr Ali to the Department and the Tribunal, his employment with his sponsor ceased on 16 August 2018. Accordingly, effective 16 October 2018, Mr Ali would have been in breach of visa condition 8107(3)(b) attached to his Subclass 457 visa which requires that the period during which he ceases employment with his sponsor must not exceed 60 consecutive days. In the circumstances, the delegate could have chosen instead to cancel Mr Ali’s Subclass 457 visa pursuant to s.116(1)(b) of the Act for his failure to comply with a condition of his visa. During the course of the hearing, Mr Ali acknowledged this.Consideration of discretion There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. In exercising its power to cancel a visa, the Tribunal has had regard to the matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’ as a relevant consideration. Policy, however, is not binding on the Tribunal.[23] The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or (in the case of the exercise of a discretionary power, as in this matter) the preferable decision.[24]The purpose of the visa holder’s travel to and stay in Australia[23] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380 [24] Hneidi v MIAC [2010] FCAFC 20, Spender, Emmett and Jaocobson JJ at [34] Mr Ali initially arrived in Australia as the holder of a Student Subclass 572 visa to undertake tertiary studies in aged care. Following completion of those studies, he was granted a Subclass 457 visa on 4 April 2017 for a period of 4 years for the purpose of being able to fill a skills shortage in the occupation of Residential Care Officer ANZSCO 411715 and work with the Company, an approved standard business sponsor. Mr Ali’s employment with the Company was terminated on 16 August 2018. He wrote to the Department requesting cancellation of his visa on 9 November 2018 and confirmed this in his response to the Department’s NOICC on 13 December 2018. Prior to this and on the basis of advice from a registered migration agent, Mr Ali applied for a Protection visa on 17 October 2018. A decision on that application remains pending. But for Mr Ali’s pending Protection visa application, the purpose of his stay in Australia would have come to an end subject to him obtaining another employer to take over sponsorship of his Subclass 457 visa. Following the Department’s cancellation of his Subclass 457 visa, Mr Ali promptly secured a Bridging E visa (BVE) within just 2 days and, shortly thereafter, successfully applied to have the no work condition 8101 removed from his BVE. Accordingly, he has had unrestricted work rights since 2 January 2019. At the hearing, Mr Ali told the Tribunal that not only has he been Uber driving but he has also worked as a Nursing Assistant on a casual basis with Achieve Australia since 5 February 2019. Evidence of his work with Achieve Australia was provided to the Tribunal promptly after the hearing. Mr Ali told the Tribunal that he gets lots of offers to work with them but has to call in sick sometimes because he is not mentally stable.