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

1. 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).

2. 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.

3. 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

4. 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.

5. 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. 

6. 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. 

7. 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 pending (Protection) visa application, you were granted a Bridging A visa (BVA) which does not come into effect until your current visa ceases naturally. If your current visa is cancelled the BVA will cease. 

   If your current visa is cancelled, you will become unlawful.  Becoming unlawful will not affect your pending (Protection) visa application, however, it may delay future application such as applying for Australian Citizenship. You will need to regularise your immigration status by applying for a Bridging E visa (BVE).

   If your current visa is cancelled the only bridging visa you will be eligible to apply for is a BVE.  There are limitations associated with holding a BVE:

   Travel Limitation – a BVE will only allow you temporary stay in Australia.  It will and when you leave Australia.  If you travel outside Australia, you will need another visa to return to Australia.  This may also prevent the grant of your pending (Protection) visa if it is one that can only be granted while you are onshore.

   The cancellation of your current visa will also impose a section 48 bar against you.  This will prevent you from applying for another temporary visa onshore in Australia.  It does not affect your pending (Protection) visa application.  However, you will have limited visa options if your pending (Protection) visa is not granted. 

   …

   For these reasons, we strongly recommend that you consult a migration agent about your options before confirming that you wish to proceed with cancellation of your current visa’.

8. Mr Ali responded to the NOICC on the same day that it was sent to him.  In his response, to which he attached a copy of his Pakistani passport, Mr Ali says:

   ‘I state that, I am (sic) fully understand the consequence of the cancellation, and proceed with the cancellation (NOICC).

   I written (sic) send you the email to proceed the cancellation please asap

   My legal migration agent advised me to proceed (sic) the cancellation’.[1]

   [1] BCC2018/558664 f 13

9. Review of the Department’s file confirms that 3 days later, on Sunday 16 December 2018, Mr Ali sent another email to the Department in exactly the same terms.[2] 

   [2] Ibid f 14

10. Early on 17 December 2018, the Department wrote to Mr Ali noting that there are a number of visa holders with the same name and same particulars as his in the Department’s records.  Accordingly, he was requested to provide full details of his complete name, date of birth, passport number and reference number of his current visa application.  Mr Ali responded shortly thereafter on the same day at 11:04 am with the requested details.[3]  Then, later on 17 December 2018 at 1:53 pm, Mr Ali emailed his emailed his fourth request to cancel his Subclass 457 visa.[4] 

    [3] Ibid f 34

    [4] Ibid f 35

11. The Department cancelled Mr Ali’s Subclass 457 visa on 19 December 2018.  The decision record notes that, as Mr Ali’s visa has been cancelled, his family members’ visas have also been cancelled.  Mr Ali’s family members are his wife Maria Khan and the couple’s 2 young children, 4 year-old Zayan Khan and 1 year-old Umrah Khan.

    Application for review

12. Mr Ali applied to the Tribunal on 30 December 2018 for review of the delegate’s decision to cancel his Subclass 457 visa. 

13. In his review application, Mr Ali states that his migration agent provided him with ‘the wrong information about 457 Temporary visa, to change the visa condition and apply for another visa’.[5]  He notes the Department provided him with ‘the correct information’ about his former 457 visa and that is ‘why I want to review the decision and want to withdraw the pending (Protection visa) application’.

    [5] AAT 1838114 f 2

14. In support of Mr Ali’s application for review he provided, relevantly:

    1)a Report from Dr Ben Teoh, Consultant Psychiatrist and WorkCover Accredited Impairment Assessor Specialist dated 13 November 2018.[6] 

    The report notes that Mr Ali’s employment has been terminated and that he has been experiencing emotional distress and anger as a result of industrial issues at work.  Dr Teoh states that Mr Ali reports he was harassed and unfairly treated by staff and, subsequently, not supported by his supervisor.  As a result, he became angry.  His employment was terminated because he was told that he had made a threatening remark to his supervisor.

    Dr Teoh also states that Mr Ali has not sustained a diagnosable psychiatric condition as a result of work-related industrial issues.  He opines that Mr Ali can benefit from assistance to find another employer;

    2)copies of 4 Certificates of Capacity/Fitness for use with Workers Compensation Claims completed by Dr Aslam Hameed dated 27 August 2018, 29 September 2018, 27 October 2018 and 30 November 2018 confirming Mr Ali suffers from Post Traumatic Stress arising from verbal abuse and harassment at his workplace by colleagues and management;[7] and,

    3)Medical Certificate from Dr Hameed dated 22 January 2019 confirming that Mr Ali has suffered from Post Traumatic Dramatic Stress Disorder for the last 6 months arising from a work related discrimination issue.  The certificate states he ‘is on medication and (getting) professional counselling. Therefore, he has poor concentration and poor decision-making ability.[8] 

    [6] Ibid ff 17 - 20

    [7] Ibid ff 21 - 28

    [8] Ibid f 57

15. The Tribunal scheduled a hearing for 18 April 2019. 

16. Initially, Mr Ali indicated that he would be attending together with his Psychologist Dr Fayza Al Shamali and his Medical Practitioner Dr Hameed.  In anticipation of the hearing, Mr Ali forwarded:

    1)a copy letter from the Manager, Enquiries and Conciliation with the NSW Anti-Discrimination Board (ADB) dated 10 April 2019 confirming that complaints against the Company and Sylvanvale Foundation Pty Ltd (Sylvanvale) has been finalised.[9] 

    The letter notes that the Manager has decided to refer the complaints to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (NCAT) for determination under s.92(1)(a)(i) of the Anti-Discrimination Act 1977 (NSW) on the basis that the complaints were ‘declined as lacking in substance’; and,

    2)a copy of a Statement made by Mr Ali dated 16 October 2018.[10]  The Statement indicates that it has been provided by Mr Ali for use by Brooksight Investigations, the party assisting ‘Employers Mutual Limited in relation to my current Workers’ Compensation Claim for a psychological injury’. 

    The Statement indicates that, prior to coming to Australia, Mr Ali completed a Bachelor of Commerce in Pakistan where he worked with his uncle in his Graphic Design business.  Subsequently, he arrived in Australia to undertake a Certificate III in Aged Care and a further Certificate III in Acute Care. 

    In addition, the Statement outlines Mr Ali’s employment in Australia and the multiple incidents reported on by Mr Ali arising from his employment with the Company and Sylvanvale which have contributed to his Post Traumatic Stress condition.  The Tribunal notes that the Statement is labelled ‘Confidential’.

    [9] Ibid f 107

    [10] Ibid ff 90 – 98  

17. Subsequently, Mr Ali requested postponement of the hearing on the basis that he needed to collect evidence not only from Dr Hameed but also Dr Al Shamali and she has only just returned from overseas.  In the circumstances, he requested a 2 week postponement of the hearing.  Accordingly, the Tribunal rescheduled the hearing for 30 April 2019. 

    Documentation lodged prior to the hearing

18. Prior to the hearing, the Tribunal received the following documentation not previously provided:

    1)Report from Psychologist Dr Al Shamali dated 25 April 2019.[11]  Dr Al Shamali outlines the claimed history of discrimination and verbal abuse experienced by Mr Ali, his lack of any mental health history prior to these experiences and the assessment tools used by her.  She concludes with a summary of her opinion and sets out the treatment required by Mr Ali to deal with his condition. 

    Dr Al Shamali states that the results of her psychological evaluation reveal Post Traumatic Stress Disorder and Major Depression as a result of work-related experiences from Mr Ali’s colleagues and managers including: threats and coercive tactics; controlling what he can and cannot do; undermining his self-worth and self-esteem; humiliation, denigration, discrimination; blaming and abuse on Mr Ali; interrogating him, name-calling and yelling. 

    Relevantly, Mr Ali reported to Dr Al Shamali that he cancelled his visa by mistake due to the extremely severe stress and anxiety that he was suffering and without rational thinking.  He said he was not making wise decisions since his work was terminated by the Company.[12] 

    Dr Al Shamali concludes that Mr Ali requires ongoing and long-term therapy.  In her opinion, if Mr Ali is forced to return to Pakistan, he would seek out maladaptive coping mechanisms including self-harm.  She recommends ongoing psychological therapy and referral to a Psychiatrist to supervise his taking of anti-depressants.[13]

    By way of conclusion, Dr Al Shamali states that, on ‘compassionate ground(s) it is highly recommended that Mr Ali is supported by granting him the proper Visa that will not exacerbate his symptoms’;[14] and,

    2)Medical Certificate from Dr Hameed dated 27 April 2019 confirming he has examined Mr Ali and certifying that he has Post Traumatic Stress Disorder due to work-related physical and mental abuse.  Further, Dr Hameed confirms that Mr Ali has been under his treatment for the last 13 months and, despite being on medication for his condition, there has been minimal improvement.[15]

    Hearing

    [11] Ibid ff 112 - 121

    [12] Ibid f 116

    [13] Ibid f 112

    [14] Ibid

    [15] Ibid f 111

19. Mr Ali appeared before the Tribunal on 30 April 2019 to give evidence and present arguments.  Independent oral evidence was also received from his wife, Ms Maria Khan.  The Tribunal’s hearing was conducted with the assistance of an interpreter in the Urdu and English languages.  The interpreter was used on occasions by Mr Ali.  Mrs Kahn used the interpreter to assist her give evidence.  

20. 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

21. 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. 

22. 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’. 

23. 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’. 

24. 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. 

25. Although the Department’s file does not contain records of Mr Ali’s claimed phone calls in relation to following up his request for visa cancellation, it nonetheless does contain further emails to the Department from him to this effect on 20 November 2018 and 12 December 2018.  The Tribunal observed that the Department sent its NOICC on 13 December 2018.  Mr Ali acknowledged that he received the NOICC then and that he responded later that same day.  In his response, Mr Ali states that he ‘fully understand (sic) the consequence (sic) of the cancellation’ and requests the Department ‘proceed with the cancellation’.

26. Questioned about the termination of his employment as set out in his request for cancellation dated 9 November 2018, Mr Ali said the Company ended his employment on 16 August 2018.  He acknowledged that he was aware of visa condition 8107 attached to his Subclass 457 visa and that it required him to work only with his sponsor (the Company) or a related entity but, he said, he had taken his case against the Company about its dismissal to the ADB. 

27. In response to the Tribunal’s question as to whether he had looked for another employer to take over sponsorship of his Subclass 457 visa, Mr Ali said ‘no’  He explained that was because he was ‘not in a (mental) condition to apply for another job’.  He explained that instead of finding a new job, he was mentally exhausted and on antidepressants so could not think of anything else.

28. The Tribunal asked Mr Ali whether he was aware that, following termination of his employment by the Company, his employer had an obligation as an approved standard business sponsor to notify the Department that his employment had ceased, Mr Ali replied that ‘yes’ he was aware of this.  The Tribunal notes this would have provided an alternative basis to cancel his visa.  Mr Ali added that, in another 6 months, he would have been eligible to apply for permanent residence nominated by the Company - that was his goal - so he became mentally exhausted when his employment was terminated and was relying on pursuing workplace law remedies in the Commission and ADB.  However, as noted above, on Legal Aid’s advice he did not pursue action in the Commission because it was going to be too expensive and his complaints in the ADB have been referred to NCAT because they were declined as lacking in substance. 

29. It appeared to the Tribunal that Mr Ali may be somewhat confused about the role of the Tribunal and that of the ADB and the Commission.  The Tribunal observed that its role is not to afford Mr Ali any workplace law remedies: rather, it must examine whether the ground for visa cancellation is made out and, if so, whether his visa should be cancelled.  It also confirmed it cannot grant permanent residence.  Mr Ali said that he ‘needs justice’ and, ‘if I get the visa again I will prove the Company has been guilty of misconduct: I just need to get the visa again’. 

30. Asked how he is supporting himself and his family on the unrestricted work rights on his BVE, Mr Ali told the Tribunal that he is currently working as an Uber driver and that he has also been working on a casual basis as an Assistant in Nursing with a new employer, Achieve Australia Pty Limited (Achieve Australia).  Mr Ali agreed to provide the Tribunal with evidence of his engagement by Achieve Australia after the hearing.  The Tribunal expressed some surprise that he had not provided evidence of this employment arrangement earlier.  He responded that he did not have anyone to guide him, he was doing this all by himself.  The Tribunal referred Mr Ali to its brochure Immigration Assistance which contains details of organisations which can assist with pro bono immigration advice.

1. The Tribunal put to Mr Ali that it seemed clear, based not only on evidence in the Department’s file including the NOICC and the delegate’s decision but also his oral submissions at the hearing, that he had written to the Department requesting cancellation of his Subclass 457 visa and, in the circumstances, the prescribed ground for cancellation of the visa in r.2.43(1)(g) of the Regulations – that is, the visa holder asks the Minister, in writing, to cancel the visa – is made out. Mr Ali responded: ‘I agree’.

2. Since the ground for cancellation in r.2.43(1)(g) of the Regulations does not require mandatory visa cancellation under s.116(3) of the Act, the Tribunal then discussed with Mr Ali whether the power to cancel his Subclass 457 visa should be exercised. It discussed with him the discretionary factors set out in immigration policy that should be taken into account. Mr Ali’s evidence in this regard is discussed below at paras [53] – [89].

3. By way of concluding comment, Mr Ali said that he has no problem apart from this visa issue and, if it is reinstated, he will have achieved everything that he has worked for over the last 10 years.

   Mrs Khan’s evidence

4. The Tribunal also received independent oral evidence from Mrs Khan.  She confirmed that, since termination of his employment, Mr Ali has been going through a lot of stress.  It has manifest through losing his temper with her and the children: this is not normal and, as a result, the whole family has been through a lean period because of his health issues.  She said he has been occasionally working doing a job related to nursing but she does not know where, or with whom.  Otherwise, he has been earning income for the family as an Uber driver. 

5. The balance of Mrs Khan’s oral evidence addresses the discretionary criteria the Tribunal may consider in its determination of whether the delegate’s decision to cancel a visa should be affirmed.  Her evidence is discussed below at paras [53] – [89].

   Documentation lodged after the hearing

6. Promptly after the hearing, Mr Ali provided the Tribunal with a range of documentation regarding his casual employment with Achieve in Sydney, a subsidiary of Achieve Australia including:

   1)signed Letter of Appointment dated 22 January 2019 for the position of Assistant in Nursing with employment commencing 5 February 2019.  The contract provides for a base rate of pay of $23.38 per hour with casual loading of 25% consistent with the Nurses Award 2010;

   2)3 payslips issued by Achieve in Sydney for the casual role of Assistant in Nursing - the payslips note that total income for the year to 31 March 2019 is $1,870.64;

   3)ATO Tax File Number declaration dated 22 January 2019; and,

   4)evidence of Hesta Superannuation Fund Registration dated 21 January 2019.

7. On 1 May 2019, Mr Ali provided a record of a General Protections Dispute update issued by a Conciliator with the Fair Work Commission (the Commission) on 28 September 2018.[18]  The update notes that, in the matter of Ali, Abid v Global Disability & Health Care Services Pty Ltd T/A Global Disability & Health Care Services [Matter No. C2018/4913] in relation to an application pursuant to s.365 to deal with contraventions involving dismissal, the matter has not settled and a report to this effect will be sent to a Member of the Commission who will assess whether or not reasonable attempts to resolve the matter have been, and are likely to be, unsuccessful. If the Member is so satisfied, a certificate in accordance with s.368 of the Fair Work Act will be issued.

   [18] Ibid f 257

8. On 2 May 2019, Mr Ali wrote to the Tribunal and stated as follows (errors and omissions as set out in Mr Ali’s email):

   “please before you take any decision think about myself, my wife and my kids.  if decision has been made negative which is also impact on us mentally, psychologically and emotional on my family.

   the doctor and psychologist expose in the report that I am the victim of violence of discrimination.  which is also affect my wife and kids.  my wife already gave the statement in the hearing speech what happened to us during this process.  as I said you during the hearing speech how my life and my family has been destroyed, mentally, psychologically and emotionally.  they snatch the food from us mouth.

   Secondly, I requested to you that, used your authority and power to give us PERMANENT RESIDENCY its highly recommended form doctor and psychologist in the report. 

   On compassionate ground; it is highly recommended that Mr Ali is supported by granting him the proper Visa or permanent residency that will not exacerbate his symptoms.”[19]

   [19] Ibid f 266

9. Subsequently, on 10 June 2019, Mr Ali wrote to the Tribunal:

   ‘I just want to say that, please make the decision regarding my Permanent Residency.  we are mentally very disturbed and we want to travel outside the country with family for mentally (sic) relief.  please make the decision or grant me the visa so we can travel’.

   Mr Ali’s mental health

10. As noted above, numerous reports have been provided to the Tribunal from Psychiatrist Dr Teoh, Psychologist Dr Al Shamali and Dr Hameed.  These reports are significant and the Tribunal has carefully considered the contents of these reports.  The Tribunal has also considered evidence from Mr Ali.  In addition, the Tribunal has taken evidence from Mrs Khan in relation to her husband’s behaviour, both before and after the claimed discrimination, harassment and workplace bullying incidents engaged in by staff and management of the Company and Sylvanvale. 

11. Mr Ali’s visa was cancelled on 19 December 2018 following his response to the Department’s NOICC.  Details of Mr Ali’s multiple written requests to the Department regarding cancellation of his visa are outlined above at paras [6] - [10].  The suite of psychiatric, psychological and medical reports confirm that Mr Ali suffers from Post Traumatic Stress Disorder, Anxiety and Major Depression as a result of work-related experiences whilst working with the Company and Sylvanvale.  His symptoms include:

    ·difficulty sleeping and insomnia;

    ·recurrent thoughts, reliving the traumatic experiences that haunt him;

    ·memory disturbances;

    ·depression and feeling hopeless about his future, constantly worrying about his family who were feeling secure whilst he was working;

    ·weight loss in the order of 10 kg arising from eating disorder and loss of appetite;

    ·low levels of energy and motivation; and,

    ·difficulty concentrating. 

12. In his report dated 13 November 2018, Psychiatrist Dr Teoh states that Mr Ali does not have a diagnosable psychiatric condition as a result of the work-related industrial issues: rather, he has been emotionally distressed and he has persistent anger because he feels he was unsupported and unfairly terminated.  Dr Teoh opines that Mr Ali can benefit from assistance to find another employer.[20]

    [20] Ibid f 18, para [9]

13. Psychologist Dr Al Shamali observes in her recent report of 25 April 2019 that Mr Ali was very difficult to engage with due to his depressed mood and flat affect.[21]  She states that, although his attitude during her session with him was open and cooperative, Mr Ali’s mood was extremely sad and depressed and, although his memory functions are grossly intact with respect to immediate and remote recall of events and factual information, his thought content revealed there is significant evidence of emotional distress.[22] 

    [21] Ibid f 115 

    [22] Ibid f 113 (p.18 of Dr Al Shamali’s report)

14. The Tribunal has had regard to the reports provided concerning Mr Ali’s mental health.  The Tribunal accepts that he suffers post traumatic stress disorder and major depression as result of work-related experiences during his time working with the Company and organisation Sylvanvale.  The Tribunal carefully observed Mr Ali during the course of the hearing and is satisfied that he was able to put his case in full before the Tribunal.  Like Dr Al Shamali, the Tribunal found Mr Ali to be open and co-operative albeit sad and clearly concerned about his future and that of his family, in particular, their ability to remain in Australia permanently.  Despite this, Mr Ali did not give an impression that any of the conditions referred to above impacted his ability to give evidence to the Tribunal.  On the contrary, he engaged proactively with the Tribunal and gave thoughtful consideration to the Tribunal’s questions.  Furthermore, his wife Mrs Khan was present throughout the course of the hearing and there was no suggestion from her that Mr Ali was incompetent to give evidence.  

15. For the following reasons, the Tribunal has concluded that the decision to cancel Mr Ali’s Subclass 457 visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant law

16. 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. Relevant to this case, these include the ground set out in s.116(1)(g) of the Act. This refers to a cancellation of a visa on the basis of a prescribed ground. The prescribed grounds for cancelling a visa for the purposes of s.116(1)(g) of the Act include the ground set out in r.2.43(1)(g) of the Regulations.

17. Clause 2.43(1)(g) of the Regulations gives the Minister power, in the case of a temporary visa held by a person who is at least 18 years of age, to cancel a visa if the visa holder asks the Minister, in writing, to do so.

18. 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?

19. As noted above, the Department‘s file contains copies of 4 email communications from Mr Ali requesting cancellation of his Subclass 457 visa.  The emails are dated 9 November 2018, 19 November 2018, 20 November 2018 and 12 December 2018.  In response to the Department’s NOICC, issued on 13 December 2018, Mr Ali responded not only on 13 December 2018 but also on 16 December 2018 that he ‘fully understands the consequences of the cancellation’ and requests the Department ‘to proceed with cancellation ASAP.  During the course of the hearing, Mr Ali acknowledged that he sent these emails to the Department requesting cancellation of his Subclass 457 visa. 

20. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) of the Act and r.2.43(1)(g) of the Regulations exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the visa should be cancelled.

21. 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

22. 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]

23. 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.

24. 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. 

25. Questioned as to whether Achieve Australia would take over sponsorship of his Subclass 457 if it were reinstated by the Tribunal, Mr Ali said he would have to look into this.  The Tribunal indicated it would expect a response from him in this regard at the end of the week after the hearing, that is, on or before Friday, 10 May 2019.  The Tribunal indicated that the information that would assist in this regard would be: evidence of Achieve Australia’s status as an approved standard business sponsor and its willingness to lodge a nomination application in respect of Mr Ali; and, a contract for ongoing employment subject to approval of nomination in respect of the position for Mr Ali.  Mr Ali confirmed his understanding of the Tribunal’s expectations in this regard but indicated that it ‘might be difficult’.  The Tribunal provided Mr Ali with a copy of its brochure Immigration Assistance which contains details of pro bono immigration service providers who could assist Achieve Australia and him, if required to do so.  No information has been provided from Mr Ali as at the date of this decision. 

26. The Tribunal also asked Mr Ali whether he had applied for jobs with another employer who could take over sponsorship of his Subclass 457 visa.  Mr Ali said he had not done so to date but that he would try his ‘level best’ to do so.

27. During the course of the hearing, Mr Ali acknowledged the Tribunal’s observation that he could return to Pakistan and apply offshore for a Subclass 482 visa nominated by a prospective employer.  He added ‘I have a Protection visa pending but I do not need a Protection visa. What I need is the visa that I had, as a professional. I want to live here’.  He questioned the Tribunal as to whether, if a Subclass 482 visa was granted, he could apply for permanent residence.  The Tribunal observed that its role is not to provide immigration advice to review applicants but that pathways to permanent residence in skilled and employer-sponsored visa classes are dependent upon the applicant’s skilled occupation and whether their occupation is prescribed in the relevant legislative instrument.  It referred Mr Ali again to the pro bono service providers listed in the Tribunal’s brochure Immigration Assistance provided to him.  During the course of the hearing, Mr Ali noted on a number of occasions that it was always his aim to secure permanent residence in Australia for him and his family and some of his friends have achieved this but they studied nursing.  He reiterated a number of times that he is a professional and was aiming for permanent residence on the basis of his skills and qualifications.  In addition, following the hearing, the Tribunal notes that Mr Ali requested it use its power to grant him and his family permanent residence.  As indicated above at para [29], the Tribunal confirmed during the hearing that it cannot grant permanent residence: rather, its role is to examine whether the ground for cancelation is made out and, if so, whether his visa should be cancelled. 

28. Having regard to the purpose of Mr Ali’s stay in Australia, the Tribunal notes the absence of any nomination application pending with the Department as evidence of an approved standard business sponsor wishes to take over sponsorship of Mr Ali’s Subclass 457 visa in the event the Tribunal sets aside the delegate’s decision to cancel his Subclass 457 visa.  The Tribunal gives weight to this consideration in favour of cancelling the visa.

    Extent of compliance with visa conditions, now and on previous occasions

29. In relation to Mr Ali’s earlier Student visas, there is no evidence before the Tribunal indicating that he did not comply with the conditions attached to those visas.  The Tribunal gives weight to this consideration in not cancelling the visa. 

30. Regarding compliance with the conditions attached to his Subclass 457 visa, the Tribunal accepts that Mr Ali’s employment with the Company ceased on 16 August 2018.  Condition 8107(3)(b) as it applies to Mr Ali provides that he must not cease to be employed by his sponsor for more than 60 consecutive days.  Mr Ali confirmed at the hearing he did not write to the Department requesting cancellation of his Subclass 457 visa until 9 November 2018, that is, nearly 90 days after he had ceased working with the Company.  Based on evidence provided at the hearing - and as acknowledged by Mr Ali - it is evident that he breached condition 8107(3)(b) attached to his Subclass 457 visa.  Furthermore, he told the Tribunal that he did not actively seek employment with another standard business sponsor willing to take over sponsorship of his Subclass 457 visa.  As explained by Mr Ali, he did not do this because he was mentally exhausted and on anti-depressants so could not think of anything else. 

31. The Tribunal accepts that losing one’s job can be distressing, especially in circumstances as outlined in the reports provided to the Tribunal.  It also accepts that for persons whose residence in Australia is temporary and tied to their working for their sponsor, this can be even more distressing.  The Tribunal notes that Mr Ali had the benefit of some professional advice following termination of his employment.  Having regard to Mr Ali’s mental state in the 2 months after his employment with the Company came to an abrupt end, the Tribunal gives only some weight to Mr Ali’s ceasing of employment with his sponsor for more than 60 consecutive days in favour of cancelling the visa.

    Degree of hardship 

32. The Tribunal has also considered the hardship that may be caused to Mr Ali and his family if Mr Ali’s Subclass 457 visa is cancelled.  He could remain in Australia pending the outcome of his Protection visa application: however, as the holder of a BVE, he does not have an ability to travel outside Australia pending a decision on that Protection visa application.  In the alternative, he could return to Pakistan and lodge a Subclass 482 visa nominated by an approved standard business sponsor for a position as Residential Care Officer ANZSCO 411715 as this occupation is on the relevant legislative instrument IMMI 19/048.    

1. Mr Ali told the Tribunal that he is suffering financial hardship.  Without a secure income, he has had to resort to use of credit cards in the last 4 months.  He has, in total, debts in the order of $19,000.  His wife does not work as she looks after the couple’s children.  In addition, Mr Ali referred the Tribunal to his psychological hardship, that is, his mental health.  He said he suffers from low confidence and every day is very difficult for him.  Mr Ali also referred to the hardship experienced by his family arising from the fact that he is on a BVE and cannot travel.  The Tribunal observed that he could return to Pakistan and apply offshore for another visa to return to Australia.  Mr Ali agreed with the Tribunal’s observations.

2. Mrs Khan told the Tribunal about how she feels she has experienced hardship and been through a crisis in the last year because her husband has almost lost his mind.  She said Mr Ali basically did not work for about 6 months and has been doing casual work in a nursing role but she is not sure where.  Otherwise, he has been earning some income as an Uber driver but, financially, it has been a very hard.  At times, there have been no groceries.  Her husband has lost mental balance and has become almost violent, shouting at her and their children, banging his head against the wall.  She said her son Zayan has become a different person as a result: he has withdrawn from playing with his friends and is now scared of his father.  He used to be talkative and play with his friends in the neighbourhood but he has stopped doing that and has become a real loner.  She said doesn’t have access to professional advice but does take Zayan to a friend’s house to play. 

3. The Tribunal expressed some concern regarding Mrs Khan’s evidence in relation to her exposure, and that of her children, to potential domestic violence.  She assured the Tribunal that she ‘can take care of it’. 

4. The Tribunal accepts that leaving Australia would involve some adjustment for Mr Ali and his immediate family.  It notes Mrs Kahn evidence that her husband’s father is not supportive and that there are domestic issues in his family home in Pakistan.  The Tribunal has also considered Dr Ali Shamail’s comments referred to above at para [18] that he would need on-going treatment and the possible impact of his forced return to Pakistan.  In the circumstances, the Tribunal accepts that Mr Ali and his immediate family would experience some readjustment issues upon return to Pakistani and, especially for Mr Ali, any difficulties encountered may not be insignificant.  Whilst noting Mrs Kahn’s comments regarding Mr Ali’s father, the Tribunal observes that his mother as well as 6 siblings live there and, further, his wife also has an extended family in Pakistan as well.  Relevantly, on 10 June 2019, the Tribunal notes that Mr Ali wrote to the Tribunal requesting a decision on his application be made as he wants to travel outside Australia ‘with his family for mentally (sic) relief’.  The Tribunal accepts that Mr Ali’s wider family in Pakistan may well be in a position to assist him improve his mental health.

5. The Tribunal gives some weight to these considerations in favour of cancelling the visa.

   The circumstances in which the ground for cancellation arose  

6. The circumstances giving rise to cancellation of Mr Ali’s Subclass 457 visa on 19 December 2018 arose from his request to the Department seeking cancellation of his visa on 9 November 2018 and his confirmation of this in his response on 13 December 2018 to the Department’s NOICC.  As indicated by Mr Ali in his email of 19 December 2018 - as well as the subsequent emails to the Department confirming his request for cancellation of his visa –he was prompted to request cancellation due to his ‘unlawful termination & unlawful dismissal’. 

7. Evidence before the Tribunal indicates that Mr Ali has unsuccessfully pursued a claim with the ADB which determined that the complaint was ‘lacking in substance’ and the matter has now been referred to a Member of NCAT.  The matter was listed for Leave Hearing on 7 May 2019.  No information has been provided to the Tribunal regarding the outcome of the matter before NCAT.  Mr Ali has also lodged a claim with the Commission regarding his unfair dismissal but that claim has not proceeded due, he says, to the lack of funds to proceed with the case. 

8. The Tribunal accepts that Mr Ali indicated that he wished to remain in Australia to pursue workplace law remedies and ‘get justice’.  However, despite having the benefit of pro bono legal advice from Marrickville Legal Aid, the outcomes to date have not been encouraging.  The Tribunal provided Mr Ali with contact details for the Law Society NSW where he may obtain information regarding other firms specialising in workplace law and which offer pro both services.  No information has been provided to the Tribunal regarding Mr Ali’s pursuit of workplace law remedies following the Tribunal’s hearing.

9. As noted above and discussed with Mr Ali during the hearing, an alternative basis for cancelling his visa would have been his cessation of employment with the Company for more than 60 days and his subsequent failure to find an approved standard business sponsor willing to take over obligations in relation to his Subclass 457 visa.  He acknowledged the Tribunal’s comments in this regard.

10. The Tribunal gives weight to these considerations in favour of cancelling the visa.

    Visa holder’s past and present behaviour towards Department (and the Tribunal)

11. Mr Ali told the Tribunal that, when his employment with the Company was terminated, he and his wife went to the Department’s offices at Lee Street in Sydney.  He was given a contact email address.  This was the email address to which he sent his request for visa cancellation.  Mr Ali also said that he phoned the Department and was told to find another sponsor: however, because he had ‘lost confidence – my mental system had shutdown – I did not do this’.  He added he was aware his Subclass 457 visa is ‘one of the last remaining ones (because that visa subclass has been replaced by the Subclass 482 visa effective 18 March 2018).  As noted in the delegate’s decision, Mr Ali responded promptly to the NOICC issued by the Department on 13 December 2018: he responded on the same day. 

12. The Tribunal gives no weight to these factors outlined above in relation to Mr Ali’s past and present behaviour towards the Department in favour of cancelling the visa.

13. Asked why he lodged an application for a Protection visa, Mr Ali said he was ‘misguided’ by his immigration adviser.  His advisor told him that he needed to apply so that he would get a Bridging visa.  Mr Ali added that: what he didn’t realise is that, after his 457 visa was cancelled, he ended up with a Bridging visa but, the problem is, it is a BVE which does not allow any travel and his immigration adviser didn’t tell him about this.  It was only when he received the Department’s NOICC that he became aware of the travel limitation on a BVE (set out above at para [7] is the relevant extract from the NOICC).  The Tribunal observed that Mr Ali must have signed his Protection visa application lodged with the Department.  He acknowledged this and added ’But I didn’t understand what I was doing’. Mr Ali’s comments in relation to the impact on him and his family in the event they are return to Pakistan are discussed below at paras [78] – [81]. 

14. Based on Mr Ali’s oral evidence at the hearing, the Tribunal accepts that he lodged his Protection visa application with the Department purely on the advice of his representative and merely to facilitate his stay in Australia. 

15. The Tribunal views Mr Ali’s behaviour in this regard to the Department to be adverse.  It gives weight to this conduct of Mr Ali to its consideration in favour of cancelling the visa.

    Whether there would be consequential cancellations under s.140 of the Act

16. Cancellation of Mr Ali’s Subclass 457 visa has also lead to cancellation of the visas of his wife and those of his 2 young children.

17. In response to the Tribunal’s question regarding the impact of visa cancellation on his family, Mr Ali said that losing his job and cancellation of his visa has had a sad impact on his family as income has basically stopped, as has their lives.  He added that, initially, he came to Australia and put his head down with a view to the goal of getting permanent residence.  He was hoping to give a better life to his kids and his wife.  Mr Ali said he was on track to get permanent residence nominated by the Company when some of the staff and management started complaining about things he had done and he was sent some warning letters.  Mr Ali confirmed that, at the time when issues started to arise in his work at the Company, he did not seek legal advice or go to the Department for advice.

18. If he and his family return to Pakistan, Mr Ali said ‘there are problems there’.  He explained that he would have no job and that his young ‘family would be exposed to violence as anything can happen at any time’.  By contrast, in his opinion, ‘Australia offers a bright future for his family’ and, essentially, that’s why he came here because he wanted to give his kids a bright future.  He added that he has family in Pakistan and that his wife’s mother, father, sister and 4 brothers as well as their respective children live there. 

19. Mrs Khan told the Tribunal that ‘the thought of going back to Pakistani is not favourable’.  She said she ‘can’t go’.  Mrs Khan explained that her husband’s father is dominating and would not be very supportive.  She observed there is also domestic violence issues there because they all live on top of each other.  It is not harmonious for her children.  Mrs Khan thinks her family would be better off here in Australia because she can’t bring the children up the way she wants to. 

20. The Tribunal gives some weight to consideration of Mr Ali’s family’s consequential visa cancellation under s.140 of the Act in not cancelling the visa.

    Whether there are mandatory legal consequences to a cancellation decision

21. Consistent with policy, the Tribunal has considered whether there are mandatory legal consequences such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether detention is a possible consequence of the cancellation, or whether there are provisions in the Act which prevent the person from making a valid application without the Minister’s intervention.

22. As noted above, Mr Ali has made an application for a Protection visa. He is barred from lodging a valid application for another visa in Australia consistent with s.48 of the Act. However, there is nothing to preclude him leaving Australia and applying for a further visa to return.

23. The Tribunal finds that affirming the cancellation of Mr Ali’s Subclass 457 visa would not result in him being unlawful if he does not leave Australia in the permitted time.  This is due to the fact that Mr Ali still has pending with the Department a Protection visa application.

24. Mr Ali currently holds a BVE with work rights.  He applied for his BVE visa within 2 days of cancellation of his Subclass 457 visa.  Accordingly, if he wishes to apply offshore for a Subclass 482 (the visa which, effective 18 March 2018, has replaced the Subclass 457 visa), he will not be subject to a risk factor under Public Interest Criteria 4014. 

25. The Tribunal gives no weight to this consideration in not cancelling the visa.

    Whether obligations under international agreements would be breached

26. Mr Ali told the Tribunal that, in his opinion, no obligations under international agreements would be breached if the Tribunal affirms the delegate’s decision to cancel his visa.  He said that he would like to travel to Pakistan to see his parents but can’t, because of the conditions on his current BVE and his financial circumstances. 

27. The Tribunal finds there is nothing to suggest that any international obligations would be breached as a result of cancellation of Mr Ali’s Subclass 457 visa.  The Tribunal gives no weight to this consideration in not cancelling the visa.

    Conclusion

28. Having considered all of the circumstances in this case and the evidence before it, the Tribunal is satisfied that the evidence in favour of cancelling Mr Ali’s Subclass 457 visa outweighs that in favour of not cancelling his visa.  For the reasons outlined above, the Tribunal has formed the view that this is not an appropriate case to exercise its discretion and set aside cancellation of Mr Ali’s Subclass 457 visa. 

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

    DECISION

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

    Katie Malyon

    
    Member