Arefin (Migration)

[2017] AATA 3048

Arefin (Migration) [2017] AATA 3048 (15 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Asik Arefin
Mrs Shanzida Afrin

CASE NUMBER:  1615096

DIBP REFERENCE(S):  BCC2016/1552557

MEMBER:Rania Skaros

DATE:15 February 2017

PLACE OF DECISION:  Sydney

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

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

Statement made on 15 February 2017 at 11:19am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary work (Skilled)) – Ceased employment – Awareness of visa conditions – Conduct of sponsoring employer – Misrepresentation by employer

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348, 359AA
Migration Regulations 1994, Schedule 8 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 September 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8107 that was imposed on his Subclass 457 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant provided a copy of the delegate’s decision record to the Tribunal.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

5. The applicants appeared before the Tribunal on 13 December 2016 and 9 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Amritpal Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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 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), which states:

   (3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

   (a)      the holder:

   (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

   (ii)      unless the circumstances in subclause (3A) apply

   (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

   (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor…

   (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days

   …………

9. The Tribunal is satisfied on the evidence that 8107(3A) does not apply in this case.

10. The applicant was nominated under the 457 visa program by ANT Holdings Pty Ltd. The nomination in the occupation of Customer Service Manager in respect of the applicant was approved and the applicant was subsequently granted the Subclass 457 visa on 27 September 2013.

11. On 15 August 2016 the Department sent to the applicant a notice of intention to consider cancellation of his Subclass 457 visa under s.116 of the Act. The notice set out particulars of the grounds for cancellation which relevantly included the following information: that the applicant’s employment with ANT Holdings Pty Ltd ceased effective from 26 April 2016 and the applicant appears to have ceased employment for a period exceeding 90 consecutive days. The decision record indicates that the sponsorship approval of ANT Holdings Pty Ltd was cancelled on 26 April 2016 and the company was barred from making future applications for approval for 5 years. The delegate considered that the sponsorship cancellation caused the applicant’s employment with an approved sponsor to cease effective from 26 April 2016.

12. In his response to the notice the applicant stated the following; The on 9 February 2016 ANT Holdings Pty Ltd applied for a permanent nomination in relation to him under the Employer Nomination Scheme and he was under the impression that he was no longer under the 457 visa so he was waiting for his permanent residency. He was asked to signed leave letters and on good faith took annual leave. He did not receive any call, email or information from the employer or any other organisation and thought he had a visa until September 2017 and was not aware of the 90 day rule. He stated that on 3 June 2016 he came to know through a friend that the business closed down after which he contacted his employer who assured him not to worry as they were purchasing a new business under the same company name and asked him to stay home and he would continue to get his wages and position. He stated that he has searched for a new employer (Megasave Logistics Pty Ltd) who lodged a nomination in relation to him on 23 August 2016.

13. At the first hearing the applicant gave evidence that he stopped working for ANT Holdings on 28 February 2016 but they told him in June 2016 that he would continue to receive his wages even if he stopped working. When asked why he stopped working in February 2016 when he had a 457 visa in respect of that employer until September 2017, he stated that ANT Holdings was having issues. He stated that he was paid by bank and sometimes by cheque. The Tribunal asked the applicant to provide his bank account statements which he did prior to the second hearing. The applicant’s bank account statements indicate that the applicant was last paid by ANT Holdings in September 2015. The applicant confirmed at the second hearing that this was the last payment he received from ANT Holdings. He gave evidence that he was pursuing an action against the company for unpaid wages and superannuation.

14. Prior to the second hearing the Tribunal received documents, including a Fair Work Ombudsman form regarding a request by the applicant for assistance with a workplace dispute against ANT Holdings Pty Ltd. The form, which was signed by the applicant on 23 November 2016, indicates that the applicant ceased employment with ANT Holdings in February 2016 and that his employment was terminated because the company ceased trading.

15. At the hearing the Tribunal explained to the applicant the effect of condition 8107(3)(b) and noted that because more than 90 days had passed since he ceased working for ANT Holdings he has breached that condition. The applicant stated that he was not aware of the 90 day rule and even if he did no authority had contacted him to notify him about the 90 days. He stated that he had no communication with the company and no one had told him that the company had shut down. He stated that the company was wound up in December 2016. He stated that he was asked to stay on holidays and that no one told him his job had ceased.

16. The Tribunal has considered the applicant’s evidence but is not satisfied with the applicant’s evidence that he was not aware that his job ceased and that he was on holidays. The applicant’s evidence to the Tribunal is that he stopped working for ANT Holdings in February 2016 as the company had issues. The Fair Work documents also indicate that the applicant finished working for his employer in February 2016 and that his employment was terminated at that time as the company ceased trading. Furthermore, the applicant had not received any wages from ANT Holdings since September 2015 and there is no supporting evidence to substantiate the applicant’s claim that he was on leave from his employment since February 2016. Having considered the evidence overall, the Tribunal finds that the applicant ceased employment with ANT Holdings Pty Ltd in February 2016.

17. The Tribunal has considered the applicant’s evidence that a nomination by Megasave Logistics was lodged in August 2016, however, there is no evidence before the Tribunal that this nomination has been approved or that any other nomination in respect of the applicant has been approved. The Tribunal finds on the evidence that the period during which the holder ceased the relevant employment has exceeded 90 consecutive days.

18. As more than 90 consecutive days have passed since the applicant ceased employment with the employer who most recently nominated him, the Tribunal finds that the applicant did not comply with condition 8107(3)(b) that was imposed on his 457 visa. 

19. 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

20. 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’.

21. The applicant is a Bangladesh citizen. He arrived in Australia on 8 June 2007 as the holder of a student visa. He completed a Diploma of Community Welfare after studying for two years. He was granted a Temporary Graduate visa, Subclass 485, which he held for one and half years after which he was granted the 457 visa which is the subject of this review.

22. The Tribunal considers that the purpose of the 457 visa is to work in Australia for an approved business sponsor in an approved nominated occupation. In his response to the notice the applicant indicated that a nomination in relation to him had been lodged on 23 August 2016. By the time the delegate made the decision to cancel the applicant’s visa, on 13 September 2016, no nomination in relation to the applicant had been approved. At the first hearing the applicant gave evidence that he was sponsored by Megasave Logistics. When asked if he had an approved nomination, he stated that he has everything ready and would be able to obtain the information from the lawyer and provide it to the Tribunal.

23. Prior to the second hearing the applicant provided a letter from the Grazing By restaurant stating that they wished to offer the applicant a full time position of Chef/Kitchen Manager and wish to nominate him under the 457 visa scheme. The Tribunal also received a copy of an acknowledgement of nomination application lodged by the Neumann Family Trust on 27 January 2017 and a pay slip indicating the applicant’s employment at Grazing By from 9 January 2017.

24. At the second hearing the applicant indicated that he did not know what happened to the nomination made by Megasave Logistics as he did not have any contact with them. He stated that he could get a nomination from Grazing which he preferred because it was closer to his home in Queanbeyan and to his wife’s employment at Canberra airport.

25. At the second hearing the Tribunal expressed its concern to the applicant that he would be unable to fulfil the purpose of the 457 visa as was still not the subject of a current approved nomination. In response, the applicant stated that it was not easy to obtain a nomination and that he was lucky to be have been nominated by Grazing. He requested the Tribunal to await the outcome of the nomination.

26. The Tribunal considers it significant that the applicant is still not the subject of a current approved nomination. The Tribunal acknowledges that there is a nomination application in respect of the applicant pending however that application was only lodged less than two weeks before the second hearing and may take several months to process. The Tribunal is required to make decisions in an efficient manner and is not minded, for the reasons that follow, to delay making its decision in this case so that the applicant can pursue another nomination application.

27. The Tribunal considers that the applicant has had fair opportunity to become the subject of an approved nomination by an approved sponsor. The applicant has not worked for an approved sponsor in an approved occupation since February 2016 and despite past efforts he has not been able to secure an approved nomination to date. Furthermore, as discussed further below, the applicant has the option of going offshore and lodging a fresh 457 visa application should the pending nomination be approved. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision on the information before it.

28. The Tribunal also considers that permitting the applicant to remain in Australia on a 457 visa to await the outcome of another nomination application is not consistent with the purpose of the 457 visa.

29. The Tribunal gives weight to the above considerations in favour of cancelling the visa.

30. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. For the reasons discussed above, the Tribunal has found that the applicant breached condition 8107(3)(b) of his visa as the period during which he ceased employment exceeded 90 days. The Tribunal is satisfied that there is no other probative evidence before it to suggest that the applicant has breached any other visa condition. At the hearing the Tribunal put to the applicant, in accordance with s.359AA of the Act, information found on the Department’s electronic records relating to the investigation of ANT Holding’s compliance with its sponsorship obligations which suggested that 457 visa holders employed by ANT Holdings were working as taxi drivers. The applicant strongly denied that he had ever worked as a taxi driver. The Tribunal considered the applicant’s response and acknowledges that there is no substantive evidence before it to support a finding that the applicant was working as a taxi driver when he was employed by ANT Holdings. The Tribunal accordingly gives no weight to the adverse information contained in the electronic records in its considerations.

31. In relation to the applicant’s past and present conduct towards the Department, there is nothing before the Tribunal to suggest that the applicant has not been fully cooperative in his dealings with the Department.  

32. The applicant’s conduct towards the Department and general compliance with visa conditions weigh against cancelling the visa. 

33. The Tribunal has also had regard to the circumstances of the visa cancellation. The ground for cancellation arose when the period during which the applicant ceased employment with the sponsor that most recently nominated him exceeded 90 days. The Tribunal has considered the applicant’s submissions that after he lodged his permanent residency visa in February 2016 he thought he was no longer under the 457 visa, that he was on leave and was waiting for permanent residency, that in June 2016 he found out the business had closed down and that when he contacted his employer he was told they would be purchasing a new business and would retain his position, that was not aware of the 90 day period and that he had not been contacted by any authority, such as the Department, about the 90 days or about ANT Holdings no longer operating.

34. The Tribunal considers it the applicant’s responsibility to be aware of the conditions of his visa. The Tribunal acknowledges the applicant’s evidence at the hearing that he is not a lawyer and was not aware of the 90 days however the Tribunal is not satisfied that the applicant not being a lawyer sufficiently explains his lack of awareness about his visa conditions. The applicant has been in Australia since 2007, including on a student visa, which would have been subject to a number of conditions, and would have been aware that most temporary visas have conditions attached to them.

35. The Tribunal does not consider it the responsibility of the Department or any other authority to notify the applicant about his visa conditions, including the 90 day requirement, and whether he was still subject to the 457 visa conditions after lodging the permanent residence (employer nomination) application. As noted by the delegate in the decision record, the notification of the grant of 457 visa letter would have set out the conditions attached to the 457 visa, including condition 8107, and furthermore the Department provides an online facility (Visa Entitlement Verification Online – VEVO) for visa holders to check the status and conditions of their visas. The Tribunal considers it the applicant’s responsibility to be aware of his visa conditions and to comply with them.

36. The applicant’s lack of awareness of his visa conditions weighs in favour of cancelling the visa.

37. The Tribunal has also considered the Fair Work Ombudsman documents provided by the applicant relating to his workplace dispute in respect of his employment at ANT Holdings. It has also considered the legal documents relating to the actions against ANT Holdings by Mr Amritpal Singh, the applicant’s former work colleague, and the information contained in those documents about the potentially unlawful conduct of the directors of ANT Holdings Pty Ltd and other documents regarding the winding up of ANT Holdings. The Tribunal has also had regard to the oral evidence of Mr Singh which was consistent with the documents and the applicant’s own evidence about the conduct of the directors of ANT Holdings and their poor treatment of the 457 sponsored workers.

38. In considering the evidence before it, the Tribunal accepts that the applicant was treated poorly by his sponsoring employer who, according to the Fair Work and other legal documents, had not paid his wages and superannuation entitlements, acted fraudulently and    threatened the applicant and other 457 visa holders. The Tribunal is also prepared to accept the applicant’s evidence that he was misled by his employer about the status of sponsoring company and was led to believe that his position would continue upon the purchase of a new business.

39. The Tribunal accepts that the circumstances in which the ground of cancellation arose was in part due to the actions of ANT Holdings Pty Ltd given their failure to communicate with the applicant about the status of the business and their misrepresentation to the applicant regarding maintaining his position upon the purchase of a new business. While the actions of the directors of ANT Holdings and the Company ceasing operation are factors that were not within the applicant’s control, which consequently delayed the applicant’s search for a new sponsor within 90 days of ceasing employment, the Tribunal considers, as discussed above, that the applicant has had sufficient time since then to become the subject of another nomination with an approved sponsor.    

1. The Tribunal gives some weight to the circumstances in which the ground of cancellation arose in favour of not cancelling the visa.

2. The Tribunal has also considered the hardship that may be experienced if his visa is cancelled. At the hearing the applicant stated that he and other 457 visa holders had suffered, and lost everything, as a result of the actions of ANT Holdings. The directors of ANT Holdings fraudulently made Mr Amritpal Singh a Director of the company. He stated that he is pursuing an action against ANT Holdings for unpaid wages and superannuation.  He stated that he has lodged a complaint with the Australian Taxation Office (ATO) and the Fair Work Ombudsman. He has also been getting regular calls from the liquidators, Deloitte, requesting information. He stated that if he has to return to Bangladesh communication will fail and that it was essential for him to stay in Australia so he can claim his lost wages and superannuation.

3. The Tribunal accepts that there ongoing proceedings against ANT Holdings and that the applicant wishes to remain in Australia pursue his claim against that company with the relevant authorities. The Tribunal considers however that permitting the applicant to remain in Australia on a 457 visa so that he can pursue the action taken against his former employer is not consistent with the purpose of the 457 visa.

4. The Tribunal considers that the cancellation of the applicant’s 457 visa will not automatically result in the applicant having to depart Australia. It is open for the applicant to apply for further a bridging E visa which, subject to the applicant meeting the criteria, may be granted for a reasonable period of time during which he can continue to pursue his actions against his former sponsor. It is also open for the applicant to request the Minister to intervene under s.351 of the Act which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

5. The applicant stated that he and his wife are currently renting a place and have to pay rent. His wife is currently working for Qantas at Canberra airport. He stated that his wife has a health issue and has to go to the doctor every month to get tests. The Tribunal received a patient health summary for Ms Afrin indicating that she has a vitamin D deficiency, menstrual irregularity, hypothyroidism and is planning pregnancy. A number of scripts and request for ultrasound documents were also provided. Ms Afrin’s evidence to the Tribunal was largely consistent with the applicant, she explained that they were trying to have a child and that she was regularly seeing a doctor. She stated that they have been in Australia for 10 years and that it would be difficult for them to go back to Bangladesh.

6. The Tribunal acknowledges the matters raised by the applicants and accepts that the cancellation of the 457 visa is likely to cause some financial and emotional hardship. The Tribunal accepts that returning to Bangladesh may cause difficulties for the applicants given the period of time that they have resided in Australia. The Tribunal notes however that the applicants have residence in Australia as holders of temporary visas, which are granted for a specified purpose and for a specified period, and do not entitle the applicants to remain in Australia indefinitely.

7. The Tribunal accepts that Ms Afrin is seeing a doctor in Australia so she can fall pregnant and for other health issues. The Tribunal notes however that it is not consistent with the purpose of the 457 visa for the applicants to remain in Australia to pursue medical treatment and have a child. A medical treatment visa may be a more appropriate visa for this purpose and it is open for the applicants to consider their eligibility for such a visa if they wish to pursue medical/fertility treatment in Australia.

8. The Tribunal gives some weight to the hardship that may be experienced by the applicants  but is not is not satisfied, for the reasons explained, that the hardship outweighs the purpose of the applicant’s stay in Australia as the holder of a 457 visa.

9. The Tribunal accepts that if the applicant’s 457 visa is cancelled, Ms Afrin’s visa will be consequentially cancelled under s.140. However Ms Afrin’s visa was granted on the basis of being a member of the family unit of the applicant and it is the intended consequences of the legislation that members of the same family have the same visa status.

10. The Tribunal gives limited weight to the consequential cancellation of Ms Afrin’s visa.

11. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicants currently hold a bridging E visa and will only be subject to detention if they do not continue to hold a visa to remain lawfully in Australia or refuse to depart. As indicated above, the applicant will not have to immediately depart Australia if the visa is cancelled and can apply for a further bridging E visa. The Tribunal accepts that if the visa is cancelled the applicant will be affected by s.48 of the Act. He will not be able to apply for another 457 visa onshore, and will have limited options for applying for a valid visa in Australia, without the intervention of the Minister.

12. The Tribunal gives limited weight to the mandatory legal consequences of cancellation as they are the intended consequences of legislation.

13. The Tribunal has also considered the applicant’s claim that if his visa is cancelled and he returns to Bangladesh he will not be able to return to Australia for a period of time.

14. The Tribunal acknowledges that most temporary visas, including the Subclass 457 visa, require applicants to meet Public Interest Criterion (PIC) 4013 and 4014. However, the Tribunal is not satisfied on the evidence before it that the applicant will necessarily be affected by the three year exclusion period if his 457 visa is cancelled. The applicant’s 457 visa was cancelled on 13 September 2016. He was granted a bridging E visa the following day, 14 September 2016, and that another on 22 September 2016. The Tribunal is satisfied on the evidence that the bridging visa E was granted to the applicant within 28 days after his 457 visa ceased to be in effect.

15. The Tribunal has had regard to PIC 4013 and considers that the applicant will not be subject to an exclusion period because he is not affected by a risk factor in PIC 4013(1A), (2), (2A) or (3). He is not affected by the risk factor under PIC 4013(2)(b) because although his visa is cancelled under s.116 because the applicant did not comply with a condition of his visa, the visa was not of a subclass specified in Part 2 of Schedule 4. The risk factor in PIC 4014(4)(b) will also not apply to the applicant under PIC 4014(5) if a bridging visa held by the applicant, at the time of departure, was granted within 28 days after a substantive visa held by the applicant ceased to be in effect. In this case, the applicant was granted a bridging E visa within 28 days of his Subclass 457 visa being cancelled. Therefore, if at the time the applicant departs Australia he holds the bridging visa that was granted within 28 days after the substantive visa held by him ceased to be in effect, the risk factor in PIC 4014(5) will not apply to him.

16. On the basis of the above, the Tribunal considers that the applicant may not necessarily be affected by the three year exclusion period in PIC 4013 and 4014 if he applies for a temporary visa offshore.  This consideration weighs in favour of cancelling the visa.

17. In relation to consideration regarding international obligations, there is no evidence before the Tribunal, and the applicants have not claimed, that any international obligations would be breached as a result of the cancellation.

18. The Tribunal has also carefully considered the representations made on behalf of the applicant by the member of Monaro, Mr John Barilaro MP, referring to the difficulties the applicant had with the nomination by his employer under the Employer Nomination Scheme and requesting the Minister to consider granting the applicant a 457 visa. The letter was accompanied by a statement from the applicant that reiterated the matters raised by the applicant in his response to the notice.

19. The matters raised by the applicant, including the difficulties the applicant has experienced with his former sponsor ANT Holdings Pty Ltd, have been considered by the Tribunal above.  The Tribunal is not satisfied that the difficulties experienced by the applicant or the fact that he was nominated under the ENS by his former sponsor outweighs the purpose of the applicant’s stay in Australia as the holder of the 457 visa. As indicated above, the applicant has not been able to fulfil the purpose of the 457 visa since he ceased working for his last sponsoring employer and to date has not been able to secure an approved nomination with an approved sponsor. In these circumstances, the applicant will again be in breach of condition 8107 if the Subclass 457 visa is not cancelled. As indicated above, the applicant can, should he wish to do so, make a request to the Minister to intervene and substitute, for a decision of the Tribunal, another decision that is more favourable to the applicant.

20. The Tribunal has weighed up all of the relevant circumstances in this case and considers that the circumstances in favour of cancelling the 457 visa outweigh those in favour of not cancelling the visa.

    Conclusion

21. In considering the circumstances as a whole, the Tribunal concludes that the 457 visa should be cancelled.

    DECISION

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

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

    Rania Skaros
    Member