Aqil (Migration)

[2019] AATA 896

Aqil (Migration) [2019] AATA 896 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aziz Inayat Aqil

CASE NUMBER:  1828465

HOME AFFAIRS REFERENCE(S):           BCC2018/4047011

MEMBER:John Cipolla

DATE:8 February 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 08 February 2019 at 10:12am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment for more than 90 days – consideration of discretion – did not wish to continue working night shifts – sought alternative sponsorship – pending Subclass 186 visa application – purpose of a Subclass 457 visa – 14 months since applicant ceased employment with sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 September 2018 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 ceased employment with his sponsoring business, Sir Moses Montefiore Jewish Home, on 12 December 2017 and the period in which he had ceased employment exceeded 90 consecutive days in breach of condition 8107(3)(b) 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 5 February 2019 to give evidence and present arguments.

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

5. The Tribunal received a number of documents from the applicant at hearing which it has duly considered.  The documents show the attempts made by the applicant to find an alternate business sponsor after he resigned from his position with the Sir Moses Montefiore Jewish Home in Randwick.

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 holder ceases employment must not exceed 90 days.

9. Recourse to the Notice of Intention to Consider Cancellation (NOICC) dated 31 August 2018 indicates that the applicant was granted a Subclass 457 visa on 20 October 2016 to work for the nominating business Sir Moses Montefiore Jewish Homes whose nomination was approved on 20 October 2016. The NOICC states that records before the Department indicate that the applicant ceased working for the nominating business on 17 December 2017 in breach of condition 8107(3)(b) of Condition 8107 attached to his visa.

10. In response to the NOICC dated 6 September 2018 the applicant stated that he did in fact finish employment with the nominating employer on 12 December 2017 after working for this employer for 5 years and 8 months. The applicant stated that he had been looking for new employment since that time. He advised that he informed the Department on 19 February 2018 that he was no longer with his nominating employer. The applicant stated that he had also lodged an application for an employer nomination visa. The applicant stated that he had managed to secure a new nominating business to employ him the West Wyalong Masonic Village and that he had undertaken a pre-employment medical examination. The applicant further stated that his daughter was having her first baby in October 2018 and that his wife would be travelling from Pakistan to Adelaide before the delivery.

11. On 24 September 2018 the delegate proceeded to cancel the applicant’s visa. The delegate noted that the ground for cancellation existed and having regard to the relevant considerations concluded that the visa should be cancelled.

12. On 8 November 2018 the Tribunal wrote to the applicant inviting the applicant to comment on or respond to information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. The letter noted that the applicant had been granted a Subclass 457 visa on 20 October 2016, valid to 20 October 2020, however his visa was cancelled on 24 September 2018.  The letter noted that the applicants Subclass 457 visa was subject to condition 8107 work restriction, which required that the applicant must not cease to be employed by his approved sponsor and that if he ceased employment the period must not exceed 90 consecutive days.  The Tribunal noted that the applicant was sponsored for this visa by Sir Moses Montefiore Jewish Homes in Randwick. 

13. The applicant sought an extension of time to respond to the letter which was duly granted. The Tribunal received a response to the letter which it has duly considered.  The response makes reference to the attempts the applicant had made to find a new sponsoring employer.  The response also included a submission prepared by the applicant’s representative which noted that the applicant had made attempts to find alternate employment after he resigned from Sir Moses Montefiore Jewish Homes and that he had been made an offer of employment by the Royal Freemasons Benevolent Institution.

14. The Tribunal conducted a review hearing on 6 February 2019. The applicant attended the hearing along with his representative.  At the outset of the review hearing the Tribunal went into extensive detail about the process of merits review and the respective issues in the review.

15. The applicant gave his name and date of birth. The Tribunal asked the applicant what year he arrived in Australia for the first time and he advised on 22 January 2010 as the holder of a Subclass 457 visa. The Tribunal asked the applicant for the name of the sponsoring business and he advised that the business was called Regis Nursing Home based in Wellington Point Queensland. The applicant advised that he worked for this organisation for a little over one year. The applicant then changed employer to the Jannali Nursing Home in NSW where he worked for 9 months before finally obtaining a position with Montefiore Homes in Randwick where he worked for 5 years and 8 months.

16. The Tribunal asked the applicant why he resigned from this position in December 2017. The applicant advised that he resigned on 12 December 2017 because he had worked night shift for the whole 5 years and 8 months that he had been employed by Montefiore. He advised that this was not sustainable and for that reason he had left this employment.

17. The Tribunal asked the applicant what he had done in order to find a new sponsoring business. The applicant stated that he had approached a number of nursing home facilities and agencies to try to find an alternate nominating business. The Tribunal noted that the evidence before it indicated that the applicant was not the subject of an approved nomination by standard business sponsor which suggested that his objectives in trying to find a new employer between December 2017 and February 2019 had been unsuccessful. The applicant stated that he had been made an offer of employment and that the prospective employer had lodged a Subclass 186 application on his behalf that had not yet been finalised by the Department. 

18. The Tribunal asked the applicant about his family circumstances. The applicant stated that his wife resided in Pakistan and that he had 2 adult daughters who were permanent residents in Australia.

19. The Tribunal asked the applicant what compelling need or reason he had to stay in Australia. The applicant stated that he was supporting himself and his wife by working in Australia.

20. The Tribunal asked the applicant if his visa was to remain cancelled what effect or impact it would have on him. The applicant stated that he did not want to have to return to Pakistan. He advised that Pakistan was not a favourable country for him to live in. The applicant stated that he had no criminal record in Australia, that he had paid taxation, and that he had a current application before the Department of Home Affairs pertaining to a job offer.

21. The Tribunal asked the applicant whether he had returned to Pakistan since coming to Australia in January 2010. The applicant stated that he had returned to Pakistan on 2 or 3 occasions for a short period of time. The applicant added that the country was not good enough to stay there, that many things happen in Pakistan and Australia was a safe country. The Tribunal noted that the applicant had only been granted a temporary residence visa and on this basis there should have been no expectation of permanent residence in Australia.

22. The Tribunal asked the applicant about the Subclass 186 application that was currently before the Department. The applicant stated that the application was lodged in March 2018 and that he was advised that this application would take between 8 to 13 months to process and he was expecting an outcome within the next couple of months.

23. The Tribunal made reference to the applicant’s comments about his home country of Pakistan not being safe. The Tribunal asked the applicant whether he had a well-founded fear of persecution if he was to return to Pakistan for a Convention based reason.  The applicant stated that the situation in Pakistan could change any time. The applicant stated that he had only returned to Pakistan for short periods of time. The applicant stated that his 2 daughters were settled in Australia, one in Sydney, and one in Adelaide. The applicant stated that apart from his 2 daughters in Australia he had 3 daughters in Pakistan two were nurses and one was a teacher. The applicant advised that his wife was a retired nurse.

24. The Tribunal asked the applicant whether there was any further evidence that he wished to provide. The applicant stated that he hoped the Tribunal would review his case favourably. The Tribunal deferred to the applicant’s representative and asked whether there are any submissions that he wished to make. The applicant’s representative stated that for the past 14 months the applicant had been trying to find an employer, that there was a prospective job offer available to the applicant in Leeton NSW and that as a qualified nurse he has skills that would be valued in Australia. The hearing concluded.

25. The Tribunal received a post hearing submission from the applicant’s representative advising that during the hearing the applicant was asked by the Tribunal whether he had applied for a protection visa, to which he answered no. The letter notes that the applicant was confused with the terminology of protection and asylum and answered incorrectly. The submission noted that the applicant did apply for a protection visa in 2013 which was refused and that he did not lodge an application for merits review of that decision.

    Does the ground for cancellation exist?

26. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. Of relevance in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.

27. The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 20 October 2016 on the basis of a nomination by Sir Moses Montefiore Jewish Homes in Randwick (the sponsor). The sponsor advised the Department that the applicant ceased employment with them effective December 2017. The applicant has confirmed that he resigned from Sir Moses Montefiore Jewish Homes on 12 December 2017 because he no longer wished to work night shift.

28. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment with Sir Moses Montefiore Jewish Homes in Randwick.  On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b). 

29. 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 power to cancel the visa should be exercised.

    Consideration of discretion

30. 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. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

31. The Tribunal has first considered the purpose of the applicant’s travel to and stay in Australia. At the hearing the applicant provided details of his immigration history.  As has been noted the applicant advised that he arrived in Australia as the holder of a Subclass 457 visa on 22 February 2010, to work for his then sponsoring business, Regis Nursing Home in Queensland as a Registered Nurse. The evidence before the Tribunal indicates that the applicant has remained in Australia largely as the holder of Subclass 457 visas and that during the period since he arrived he had lodged a protection visa application which failed at primary stage and that he did not pursue merits review.  The applicant advised that despite being granted a 4 year Subclass 457 visa to work for the Sir Moses Montefiore Homes in Randwick on 20 October 2016 he ceased employment 3 years before the end of that period because he did not wish to continue working night shift.  The evidence before the Tribunal indicates the applicant has spent the next 14 months looking for a sponsoring employer and that he has lodged a Subclass 186 visa application in March 2018 which has not been finally determined.

32. At the hearing, the Tribunal explained to the applicant that the purpose of the 457 visa is for him to work on a temporary basis (usually for 4 years) for an approved sponsor in an approved occupation and that since ceasing employment with Sir Moses Montefiore Jewish Homes in Randwick in December 2017, 14 months after the grant of his 457 visa, he has not been able to secure another approved nomination to date. In response, the applicant stated that he had an offer of employment to work as a nurse in Leeton and had a Subclass 186 application before the Department which had not been finally determined.

33. The Tribunal also noted that the applicant’s 457 visa had been granted until 2020 and that given the length of time still to run on that visa it would be difficult to set the cancellation aside without an approved nomination as the conditions attached to the 457 visa, and the protections for temporary workers in Australia, require there to be an approved sponsor for whom the applicant can work in accordance with approved terms and conditions of employment, which would need to be satisfied as part of the nomination approval.

34. As has been noted the applicant in his evidence advised that a Subclass 186 visa application had been lodged in March 2018 but had not been finalised.

35. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted his most recent 457 visa was to work in the occupation of Registered Nurse for Sir Moses Montefiore Jewish Homes in Randwick and that purpose ended on 12 December 2017 when the applicant resigned from that business. The Tribunal acknowledges that the applicant has made efforts to find another sponsor.  However, it has been 14 months since the applicant ceased working for his approved sponsor and to date the applicant has not been able to secure another approved nomination under the 457 visa programme.

36. The Tribunal acknowledges that a Subclass 186 application in respect of the applicant was lodged in March 2018.  It is not known when that application will be decided by the Department. The Tribunal notes that it is required to conduct reviews in a fair and efficient manner. The Tribunal is satisfied that the applicant has had a fair opportunity to secure another nomination and, in the circumstances, does not consider it appropriate to delay making its decision until the outcome of the Subclass 186 application and the Tribunal further notes that this visa is able to be granted offshore if the application is successful.

37. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for his approved sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa. 

38. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(b) the applicant has complied with visa conditions. The Tribunal is also satisfied on the evidence before it that the applicant has been cooperative with the Department. 

39. The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose 90 consecutive days after the applicant ceased employment with the sponsor as he was unable to secure another nomination within the 90 day period. The applicant claimed that he made efforts to obtain another nomination from an approved sponsor, which the Tribunal accepts.  The Tribunal considers that the applicant did make efforts to secure another nomination soon after he ceased employment with the sponsor, and while this weighs in favour of the applicant, it is outweighed by the fact that that the applicant has not been able to secure another nomination despite having tried to do so for 14 months.

40. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. At the hearing the applicant stated that if the visa is cancelled he will have to return to Pakistan.  The Tribunal notes that the applicant’s wife and three of his five adult daughters reside in that country.  The Tribunal also notes that the applicant provided evidence that he has returned to Pakistan a number of times since 2010 without incident.

41. The Tribunal acknowledges and accepts that the applicant may experience some hardship if the visa is cancelled. The Tribunal accepts that the applicant may experience financial hardship, however the Tribunal notes that the applicant according to his evidence has been unemployed in Australia since December 2017 for a period of 14 months.  The Tribunal as noted believes that the applicant has now developed a good command of English as a result of the 9 plus years that he has spent in Australia and has obtained work experience as a nurse in this country. These factors, in the Tribunal’s view, would advantage the applicant in his home country. So whilst the Tribunal acknowledges the hardship that the applicant may initially experience upon return to Pakistan, it considers that he will be able to overcome that hardship and re-establish himself in his home country due to his skills and experience.

1. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if he does not continue to hold visas to remain lawfully in Australia or refuse to depart voluntarily. The applicant will not have to immediately depart Australia if the visa is cancelled and can apply for further Bridging E visas. The Tribunal notes that the applicant according to his evidence lodged a Subclass 186 visa in March 2018 which has yet to be finally determined and that this visa is able to be granted offshore.

2. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.  The applicant did advise post hearing that he lodged an protection application in Australia in 2013 which was refused at primary stage but had not pursued review of the Departmental decision.  The evidence also indicates that the applicant since travelling to Australia in 2010 has returned to Pakistan on a number of occasions and there is no evidence that the applicant has had any problems entering and exiting Pakistan which confirms the Departmental findings that the applicant does not have a well-founded fear of persecution for a Convention based reason.

3. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant has made considerable efforts to secure a nomination with an approved sponsor. The Tribunal also acknowledges that the applicant may experience hardship, including financial hardship, if the visa is cancelled. The Tribunal also accepts that the applicant has generally complied with visa conditions and has been cooperative with the Department. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor 14 months ago. As indicated above the applicant has an application before the Department for a Subclass 186 visa which is yet to be determined.  If this application is successful the visa can be issued to the applicant offshore.

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

   DECISION

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

   John Cipolla
   Senior Member