Aryal (Migration)

[2021] AATA 2216

Aryal (Migration) [2021] AATA 2216 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Asmit Aryal

CASE NUMBER:  2013264

HOME AFFAIRS REFERENCE(S):          BCC2020/733567

MEMBER:Andrew McLean Williams

DATE:11 May 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

Statement made on 11 May 2021 at 12:44pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – employment terminated within 2 years – change of ownership of sponsoring business – redundancy in consequence of Covid-19 – circumstances beyond the applicant’s control – ‘made a genuine effort’ to be engaged in that employment – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 137Q

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 25 August 2020 cancelling the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (‘the Act’).

2. The delegate cancelled the visa under s.137Q on the basis that the applicant ceased his employment with his nominating employer within about six months of his being first granted his subclass 187 visa, in circumstances where the required employment period with the nominating employer specified by s.137Q(2) must be for at least two years, and the applicant has ‘made a genuine effort’ to be engaged in that employment for the required (two year) employment period. 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 11 May 2021, by telephone, to give evidence and make submissions.

4. The applicant was represented in relation to the review by his registered migration agent Mr Hari Prasad Pokharel, who also appeared before the Tribunal by telephone in support of his client.  Mr Pokharel had also prepared a bundle of evidence which was submitted to the Tribunal prior to the hearing.  Relevantly, that evidential bundle includes a statutory declaration from the applicant, declared at Dubbo on 4 May 2021.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.137Q, the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme), and Subclass 857 (Regional Sponsored Migration Scheme).

   Does the ground for cancellation exist?

7. Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment is subsequently terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.

8. According to the evidence received before the Tribunal the applicant commenced his employment with his sponsoring employer Fieldman, Frederick & Tate Pty Ltd (trading as the Global Hotel Rylstone) on 25 July 2017.  At that time the applicant was in Australia on a different category of visa.  Then, on 5 July 2019, the RSMS (subclass 187) visa was granted, and the applicant continued in his employment as a chef at the Global Hotel Rylstone. 

9. During the latter half of 2019, the applicant applied to his employer for holiday leave in order for him to travel to Nepal to visit his elderly mother.  This was approved, and the applicant departed Australia on 12 January 2020.  The applicant did not then return to Australia until 11 March 2020.

10. On or about 20 January 2020, and whilst in Nepal, the applicant realised that his pay had not been deposited into his bank account, as per usual.  Because of that he contacted his immediate supervisor, the head chef at the Global Hotel, a Mr Adam Hockley.  Mr Hockley informed the applicant that the Global Hotel had been sold to a new owner.  This was the first that the applicant had any inkling of that.  He tried to email the new owner – a Mr Ned Kelly – on 29 January 2020, however did not receive a response. 

11. When the applicant returned to Australia on 12 March 2019, he was required to undergo two weeks hotel quarantine, in Sydney.  Upon his release from hotel quarantine the applicant returned to Rylstone and went to see his supervisor, Mr Hockley.  Mr Hockley again explained that the business had been sold and that the new owner, was intent on restructuring the business.  Mr Hockley was unable to give the applicant any certainty regarding on-going employment at the Global Hotel under the new ownership.  In all events at that time the Global Hotel was completely shut down, in consequence of Covid-19 and other workers, including Mr Hockley were also facing redundancy.  Mr Hockley suggested that there would be little point in the applicant even attempting to speak with Ned Kelly, given these circumstances.  The Tribunal notes however that the applicant did make at least one further attempt to email Mr Ned Kelly, without eliciting a response.

12. The Department was informed on 10 February 2020 by the sponsoring employer that the applicant’s employment had been terminated, with effect from 10 January 2019.  The applicant says that he was never made aware of this by his employer and was not even aware of there being a change in the ownership of the business until he was advised by Mr Hockley on about 20 January 2020, when he was already in Nepal.

13. Although back in Rylstone by late March 2020 and ready willing and able to work in his job at the Global Hotel, the applicant says that there was no work available for him.  Facing difficult financial circumstances that applicant began to look for alternate work as a chef in the local region.  By about August 2020 the applicant received an employment offer to work as a chef at the Commercial Hotel in Dubbo.  By this stage in urgent need of employment the applicant relocated from Rylstone to Dubbo.  In September 2020 the applicant also commenced additional part-time employment as a chef at the Taronga Western Plains Zoo Restaurant.  The applicant continues to work in these two roles as at the date of this hearing.

14. In light of the foregoing the Tribunal concludes that the applicant’s employment in the nominated position was terminated before the end of the required employment period of two years, yet this happened in circumstances that were entirely beyond the control of the applicant and, had the applicant been able to, he would have continued in that employment for at least the required two year period.  The Tribunal further concludes that by his having made contact with the head chef Mr Adam Hockley and having attempted to e-mail the new owner Mr Ned Kelly the applicant also made genuine efforts to continue to be engaged in his sponsored employment for the required two years.

15. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q arises.

16. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

    Andrew McLean Williams

    
    

    Member