Bukhari (Migration)

[2021] AATA 4063

Bukhari (Migration) [2021] AATA 4063 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Nayab Bukhari

CASE NUMBER:  2101230

HOME AFFAIRS REFERENCE(S):          BCC2020/2097883

MEMBER:Michael Cooke

DATE:11 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 11 October 2021 at 1:56pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant breached condition 8507 – approved standard business sponsor -  applicant ceased employment for a period exceeding 60 consecutive days – factors beyond his control – impact of the pandemic on businesses – genuineness in trying to secure a new sponsor –– decision under review set aside

LEGISLATION
Migration Act 1958, ss 116,140

CASES
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 January 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage 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 breached condition 8607(5). 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 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former sponsor - Mr Boag of Catalyst IT Australia Pty Ltd – and the applicant’s wife.

4. 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

5. 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?

   s.116(1)(b) - non-compliance with conditions

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the visa holder did not comply with a condition of their visa. In this instance condition 8507(5) applied to the applicant’s visa. This condition requires that if the visa holder ceases employment the period during which the visa holder ceases employment must not exceed 60 consecutive days.

7. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa is Catalyst IT Australia Pty Ltd (‘the sponsor’), whose nomination was approved on 10 December 2019. The sponsor advised the Department that the applicant ceased employment with them effective 31 July 2020. The applicant has agreed that he breached the condition, but it was due to ‘factors beyond his control’ being the impact of the pandemic on businesses. His former employer (Mr Boag) explained (in oral evidence) that the company could not longer employ him and was not presently in the position to reinstate the sponsorship. The applicant explained in his submission that as one of the more recent hires he was one of the first to be retrenched.

8. 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 visa should be cancelled.

   Consideration of discretion

9. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   Consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

   ·the purpose of the applicant’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

10. The applicant was granted the Temporary Skill Shortage visa on 10 January 2020 for the purpose of being able to work in Australia in a skilled occupation for an employer that could not source an appropriately skilled Australian worker.

11. The applicant’s most recently approved sponsor notified the Department that he ceased employment with them effective 31 July 2020. According to Departmental records, the applicant is not the subject of an approved nomination with either the same or a new sponsoring employer, which would provide him with an opportunity to work in their nominated occupation. The applicant’s previous sponsor informed in oral evidence that the firm was not in the position to reinstate the former sponsorship.

12. The applicant stated in his NOICC response that the COVID-19 pandemic affected his attempts to find another sponsor. He was only able to find employers willing to offer part time or contract-based employment. The applicant has provided evidence of his search for another sponsor. However, the COVID-19 pandemic hindered his many attempts at finding one and his present cancellation status is a further burden.

13. The applicant further stated that since he ceased work with his sponsor, he “worked with a couple of Australian employers during the lockdown as a freelancer…” He also provided evidence that he registered an Australian Business Number (ABN) on 17 June 2020 as well as stating he had registered the business name BEC-AU. An internet search of the Australian Business Register confirmed the name BEC-AU was linked to the visa holder’s ABN on 8 September 2020. He also expressed his desire to continue to work independently in the future, stating that it would create employment opportunities for others and benefit the Australian community. Whilst acknowledging these claims and the supporting evidence provided the applicant ceased work with his sponsor on 31 July 2020. At this stage another another nomination has been lodged, nor approved on his behalf.

14. He further informed in oral evidence that he has performed all the prerequisites with a university to apply for a Student visa. He informed his earnest desire is (like his brother) to complete a PhD.

15. The Tribunal is aware that the purpose of holding a Temporary Skill Shortage visa is not to work for an employer other than an approved sponsor nor to establish an Australian Business and become self-employed. However, these actions by the applicant indicate his genuineness in trying to secure a new sponsor despite the catastrophic impact of the pandemic on his visa status and the fact it was beyond his control. The applicant has indicated in his submission and oral evidence that has a compelling need to remain in Australia.

16. The Tribunal gives this consideration heavy weight against cancellation.

    ·the extent of compliance with visa conditions

17. The applicant has not breached any other conditions other than the condition in question.

18. The Tribunal give this consideration significant weight against cancellation.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

19. The Tribunal has had the benefit of additional information and oral evidence and finds that the applicant has a significant degree of financial, psychological and emotional hardship. Having uprooted his family from employment in Saudi Arabia (he has a wife and 3 children) he anticipated making a new life in Australia. His former sponsor has spoken of the significant employment vetting that took place before he arrived and the satisfaction with his work. He has expended significant savings in propping himself up financially due to the loss of his employment through the pandemic. He claims that returning to Pakistan would have a devastating impact on the family’s future - particularly with the ongoing impact of COVID19.

20. The Tribunal gives this consideration heavy weight against cancellation.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

21. The ground for cancellation arose when the applicant ceased employment with his most recently approved sponsor for more than 60 consecutive days. He stated that his sponsor’s business downsized after being affected by the COVID-19 pandemic and his employment was terminated as a result. The applicant further stated that the COVID-19 pandemic also hindered his attempts at finding employment in his nominated occupation with another sponsor, although he did not provide evidence that he made such attempts.

22. The Tribunal is satisfied that the circumstances in which the ground for cancellation arose were patently ‘beyond the visa holder’s/applicant’s control’.

23. Based on this conclusion the Tribunal give this consideration maximum weight against cancelling the visa.

    ·past and present behaviour of the applicant towards the department

24. There is no information before the Tribunal to suggest the applicant has been uncooperative with the Department or Departmental staff.

25. The Tribunal gives this consideration some weight against cancelling the visa.

    ·whether there would be consequential cancellations under s.140

26. According to Departmental records, the applicant has four dependant family members being his spouse, Syeda Rida Fatima, and three children, Syeda Shaznain, Syeda Shany Zhara, and Syeda Nisha. They hold their visas because they are members of the applicant’s family unit. If his visa remained cancelled, their visas would also be cancelled by operation of law under Section 140 of the Act.

27. Therefore, the Tribunal gives this consideration significant weight against cancelling the visa.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

28. The Tribunal is aware that if it were to decide to affirm the visa cancellation, the applicant and his family would become unlawful non-citizens and may be liable for detention under Section 189 and removal under Section 198 of the Act if he does not resolve his immigration status or voluntarily depart Australia.

29. The applicant would also be affected by Section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia. However, cancellation of the visa under these grounds will not incur any exclusion period under Public Interest Criterion 4013.

30. The Tribunal give this consideration significant weight against cancelling the visa.

    ·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

31. The Department’s policy guidelines require an assessment as to whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation including, the Conventions on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights and the Refugees Convention.

32. In considering the applicant’s children and their best interests, the Tribunal acknowledges the integrity of the family unit is an important consideration. If a decision were made to affirm the cancellation of the applicant’s visa, the visas held by his spouse and children will be consequentially cancelled. However, it should be acknowledged that this will keep the family’s status aligned and unlikely to result in the family unit being separated. A decision as to where the family members reside, including the possibility of relocation, is a matter for the child’s parents to consider, if required, following the visa cancellation. Therefore, the Tribunal is of the view that, despite the applicant’s concerns at the potential loss of opportunity for  his children, the circumstances of the case would not lead to a breach of Australia’s international obligations.

33. The Tribunal give this consideration a little weight against cancelling the visa.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

34. Not applicable.

    ·any other relevant matters

35. The Tribunal has had the benefit of speaking to the applicant and his wife who have been devastated by the loss of their cherished visa and through no fault of their own. Despite the unfavourable employment climate during the pandemic the applicant has been assiduous in seeking to find a sponsor and any potential income he can secure with his very apparent and important IT skills.

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

    DECISION

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Michael Cooke
    Senior Member