BIN ILYAS (Migration)

[2018] AATA 4238

BIN ILYAS (Migration) [2018] AATA 4238 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Fahad BIN ILYAS
Mrs Saba Waheed Hussain
Miss Ammira Fahad
Miss Rida Fahad
Master Mohammed Omer Bin Fahad

CASE NUMBER:  1711397

HOME AFFAIRS REFERENCE(S):           BCC2017/946382

MEMBER:John Cipolla

DATE:18 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 18 September 2018 at 4:56pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased to work in nominated occupation – factors beyond control – sponsorship bar – cancellation of sponsorship – attempts to regularise immigration status – new nomination refused – number of businesses willing to sponsor – separation from family – delay in offshore application – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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(3) of his Subclass 457 visa because the applicant ceased to work in his nominated occupation in his most recently approved nomination. The delegate noted that the standard business sponsor who nominated the applicant in his most recently approved nomination for the visa was Sydney IT Careers Pty Ltd. The delegate noted that on 2 December 2015 the Department made a decision to cancel the approval of the applicant’s sponsoring business, Sydney IT Careers Pty Ltd, as a standard business sponsor and concluded based on this cancellation and other evidence that the applicant ceased working for the sponsoring business on 31 January 2016.

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.

4. Recourse to the Departmental file indicates as follows. 

5. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 22 May 2017.  The NOICC particularised the ground for cancellation and why the Departmental delegate believed that the ground existed, namely the cessation of the applicant’s employment with his nominating business on 31 January 2016 and his failure to hold a valid nomination for more than 90 consecutive days since that time.

6. The applicant responded to the NOICC in a letter received by the Department by registered post on 9 May 2017.  The applicant in the response noted that he had been led to believe that a new business, who had agreed to sponsor him Wazzam Pty Ltd, had submitted an application for approval to nominate him to work in an Information Technology role in that business.  The applicant noted that his visa had been previously cancelled by the Department on 14 June 2016 on the basis that the business that sponsored him initially for a Subclass 457 visa, Sydney IT Careers Pty Ltd had been the subject of a sponsorship bar under s.140M(1)(a) on 2 December 2015.  That cancellation decision was overturned by the Administrative Appeals Tribunal (differently constituted) at review on 26 August 2016. 

7. The applicant noted that because of the stress that these cancellations had created for he and his wife and their 3 children that he had decided to return to India, but requested the Department to allow his family to remain in Australia for 3 months so that his children could finish their respective schooling in Australia prior to their return to India.

8. The Departmental delegate considered the applicant’s response to the NOICC and proceeded to cancel the applicant’s Subclass 457 visa in a decision made on 22 May 2017. The delegate noted that the applicant was not the subject of an approved nomination since ceasing employment with his sponsor on 31 January 2016.  The delegate considered the relevant considerations in order to determine whether or not the visa should be cancelled and proceeded to cancel the applicant’s visa having regard to those considerations.

9. The applicant lodged an application for review with the Tribunal on 31 May 2017.

10. On 25 June 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 4 June 2014, valid to 4 June 2018 but that this visa was cancelled on 22 May 2017.  The letter noted that the applicant’s 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.

11. The letter noted that the applicant ceased being employed by his sponsoring business on 31 January 2016 and that on 22 May 2017, the date on which the applicant’s visa was cancelled, he had not worked for his sponsor for more than 90 consecutive days. The letter noted that a recent check indicated that no new relevant business nomination had been approved in respect of the applicant since his visa was cancelled. The Tribunal invited the applicant to provide any evidence as to whether or not he agreed that the grounds for cancellation existed and any evidence as to why his visa should not be cancelled.

12. The Tribunal received a response to the 359A letter on 6 July 2018. The response included a comprehensive submission from the applicant.  This submission has been duly considered by the Tribunal.

13. The applicant stated that he was a qualified information technology professional and had extensive knowledge and experience in ICT Project Management. The applicant stated that based on his professional tertiary qualifications and his work experience he was able to explore options for work in Australia. The applicant stated that he wished to gain further international experience and was recruited to work for an IT company in Australia. The applicant advised that he arrived in Australia on 12 June 2014 and commenced work for Sydney IT Careers Pty Ltd located in Sussex Street in Sydney. The applicant’s wife and children travelled to Australia with the applicant and his children commenced schooling at schools in Auburn in Sydney. The applicant stated that due to an unscrupulous employer, Sydney IT Careers Pty Ltd, he ceased working for this employer in early 2016. The applicant stated that unbeknown to him, Sydney IT Careers Pty Ltd had their sponsorship approval cancelled by the Department on 2 December 2015 and were the subject of a sponsorship bar for 2 years as a consequence. The applicant stated that towards the end of 2015 his salary payments became erratic with this employer paying him a lesser amount than they were contracted to do and at times paying him in cash.

14. The applicant stated that prior to travelling to Australia he had a successful career as an IT professional, predominantly in Riyadh, Saudi Arabia. The applicant stated that after the current cancellation of his visa his wife and children had relocated to India because of the disruptions that the respective cancellations had caused to his children’s schooling and stability. The applicant stated that he had worked hard for the sponsoring business and had hoped that obtaining work experience as an IT professional in Australia would lead to enhanced career prospects in the future.

15. The applicant stated that when he received the initial cancellation letter from the Department pertaining to the first cancellation of his subclass 457 visa that he was shocked because he was totally unaware that Sydney IT Careers Pty Ltd had been the subject of adverse compliance monitoring by the Department which had led to the sponsorship approval being cancelled and the sponsor being barred from sponsoring for a two-year period. The applicant advised that he appealed the first cancellation decision to this Tribunal (differently constituted) and that the Tribunal set aside the cancellation decision. The applicant advised that upon the cessation of his employment with his first sponsoring employer that he sought a new sponsor Wazzam Pty Ltd who unbeknown to the applicant had their sponsorship application refused by the Department.

16. The applicant stated that his intentions with regard to working in Australia were honourable and that he believed that he brought a wealth of experience to his position as an IT professional. The applicant stated that he had at no time breached visa conditions. The applicant stated that upon the cancellation of his visa in June 2016 and the subsequent cancellation of his visa in May 2017 that he sought merits review within requisite timeframes. The applicant stated that he had always respected Australian values and law. The applicant stated that the cancellation of his Subclass 457 visas had a detrimental impact on his family. The applicant stated that he had always been truthful in his dealings with the Department and the Tribunal.

17. The Tribunal conducted a hearing on 18 September 2018 and the applicant attended the hearing on his own without a representative.

18. 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. The Tribunal noted that the evidence indicated that the applicant ceased work for his sponsoring employer on 31 January 2016 and that at the time of the cancellation of his visa on 22 May 2017 the period during which the applicant had ceased employment with his sponsor had exceeded 90 consecutive days.

19. The applicant provided his personal details. The applicant advised that he was born in Hyderabad in India. The applicant advised that he was married with 3 children, a son aged 11, and 2 daughters aged 14 and 16 respectively. The applicant stated that he first arrived in Australia on 14 June 2014 to work for Sydney IT Careers Pty Ltd in the position of ICT Project Manager.

20. The applicant advised the Tribunal that he had a Bachelor of Commerce and had undertaken postgraduate studies in Computer Applications. The applicant stated that he had 16 years post-graduation experience in IT, predominantly obtained in Riyadh Saudi Arabia. The applicant stated that he had extensive experience as an IT Group Manager.  The applicant stated that his children settled well into Australia and that his daughters attended Auburn Girls High School from 2014 until May 2016 and his son attended Auburn Public School during the same period.

21. The applicant stated that after the cancellation of his visa by the Department on 14 June 2016, that the applicant and his wife believed that until the applicant’s immigration status was resolved, that his family should return to Hyderabad to live with his wife’s family and to ensure that the children could pursue their education in India without interruption.

22. The applicant stated that he had now been separated from his wife and children for an extended period of time whilst he remained in Australia to deal with the cancellation of his visa that is the subject of these current merit review proceedings, and this had caused him a great deal of distress.

23. The Tribunal asked the applicant about his employment with Sydney IT Careers Pty Ltd.  The applicant stated that he arrived in Australia in June 2014 and commenced work with his sponsoring employer in July 2014. The Tribunal asked the applicant about how he was paid. The applicant stated that he was paid each fortnight and that his salary for the position was $75,000 and his salary was initially deposited into his bank account. The applicant stated that from around May or June 2015 he was often not paid the correct amount and was paid in cash. The applicant stated that until the cancellation of his first visa by the Department in June 2016 that he was unaware that his sponsoring business was the subject of compliance action by the Department that had led to the cancellation of their sponsorship and a sponsorship bar being put in place for 2 years.

24. The applicant stated that the business which was operating out of Sussex Street in Sydney ceased to operate from late January, early February 2016. The applicant stated that in February 2016 he experienced some medical issues where he was suffering with significant abdominal pain. The applicant stated that he attended Auburn Hospital. The applicant stated that appendicitis was initially diagnosed and they were removed, the applicant stated that this was a misdiagnosis and eventually he was correctly diagnosed as suffering with kidney stones and was duly treated.

25. The applicant stated that during the period of medical treatment and convalescence all attempts to contact the manager of his sponsoring employer were unsuccessful.

26. The applicant stated that he then sought a new nominating business and that an application was lodged to sponsor him in an IT position by Wazzam Pty Ltd.

27. The applicant made reference to a submission that he had provided to the Tribunal addressing why his visa should not be cancelled and asked the Tribunal to have due consideration to that document. The hearing concluded.

    Does the ground for cancellation exist?

28. 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. The relevant paragraph of this condition is 8107(3)(b) which requires that if the applicant ceases employment with the sponsor, the period during which the holder ceases employment must not exceed 90 consecutive days.

29. As indicated above, the evidence before the Department indicated that the applicant’s employment ceased effective 31 January 2016.

30. At the time of the delegate’s decision, the applicant had ceased employment with the sponsor that last nominated him for a period which exceeded 90 consecutive days. On this basis, the Tribunal finds that the applicant breached condition 8107(3)(b) of his Subclass 457 visa.

31. 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

32. 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’.

33. The Tribunal has first considered the purpose of the applicant’s stay in Australia and whether there is a compelling need for him to remain in Australia. The purpose for which the 457 visa was granted is for the applicant to work in the approved nominated occupation of ICT Project Manager for his former sponsor. The Tribunal considers that the purpose for which the visa was granted ceased, when the applicant ceased employment with his former sponsor.  The evidence before the Tribunal indicates that the cessation of the applicant’s employment was due to factors beyond his control as the sponsoring business was not complying with its reporting requirements to the Department. 

34. The applicant gave his evidence in an honest and forthright way and the evidence indicates that the applicant made every attempt to regularise his immigration status through finding new employment since the cessation of his employment. The evidence before the Tribunal indicates that the applicant’s nominating employer failed to comply with their obligations as a sponsoring employer. Indeed the evidence before the Tribunal indicates that the Department’s monitoring unit cancelled the approval of business sponsorship under s 140M(1)(a) of the Act on 2 December 2015 and imposed a 2 year bar on the business being able to be approved as a standard business sponsor. The evidence indicates that the applicant sought a new nominating employer and the standard business sponsorship application by Wazzam Pty Ltd was approved but their nomination application failed and that the applicant was not made aware of this nomination refusal. 

35. The evidence indicates that the applicant has pursued and found a number of new IT employers willing to sponsor him.

36. The evidence before the Tribunal indicates that the applicant’s spouse and 3 children joined him in Australia and that after the cancellation of his visa they returned to India because of the substantial disruption to the applicant’s children’s education as a result of the cancellation of his visa.

37. The Tribunal notes that the applicant has substantial experience as an ICT Manager and this is evidenced by a number of Australian businesses willing to sponsor him.

38. The Tribunal also notes that if the applicant’s visa is cancelled he will be affected by s.48 of the Act and will need to depart Australia to lodge an offshore 482 visa application. The Tribunal considers that the delay in the applicant having to travel offshore to apply for a visa is likely to cause financial hardship to him and his family whom he is currently providing support to in India.  These considerations weigh in favour of not cancelling the visa.

    CONCLUSION

39. In considering the circumstances as a whole, the Tribunal is satisfied that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled.

    DECISION

40. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

41. The Tribunal has no jurisdiction with respect to the other applicants.

    John Cipolla
    Senior Member