Elshahat (Migration)

[2021] AATA 2102

Elshahat (Migration) [2021] AATA 2102 (21 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Dina Elshahat

CASE NUMBER:  2016474

HOME AFFAIRS REFERENCE(S):          BCC2020/1425094

MEMBER:Andrew McLean Williams

DATE:21 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 21 May 2021 at 1:22pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – applicant ceased employment with sponsor – employer later provided information in error – divorce – family dispute over custody – unpaid compassionate leave – applicant trapped in Kuwait by border closures – duties recommenced remotely – ground for cancellation does not exist – decision under review set aside     

LEGISLATION

Migration Act 1958, s 137
Migration Regulations 1994, r 2.50

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 5 November 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 department had received an e-mail on 11 April 2020 stating that the applicant was no longer employed by the sponsoring employer with her employment having ceased on 10 September 2019. Relevantly, conditions applicable to the applicant’s RSMS visa required that she be employed by her nominating sponsor for at least two years. As at 10 September 2019, the applicant had worked for only approximately 14 months.

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. The applicant appeared before the Tribunal on 12 May 2021 by means of video-link to give evidence and make submissions.

5. The applicant was represented in relation to the review by her registered migration agent, Ms Lidia Soliman of Gateway Law & Migration (MARN 0747355) Ms Soliman also attended the Tribunal hearing by means of video-link, and had taken the effort to file detailed written submissions, (including a chronology of events), and other supporting evidence, prior to the Tribunal hearing.

6. 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

7. Under s.137Q, the Minister (acting by means of his or her delegate) has the power to cancel a regional sponsored employment visa (an RSMS visa) on specified grounds.

8. ‘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).

9. The applicant is an Egyptian woman with Canadian citizenship.  Both previously in Canada, and now in Australia, the applicant has worked as a childcare centre manager (ANZSCO category 134111). 

10. Pursuant to her Subclass 187 visa, the applicant was (and remains) employed by Future Generations Academy Pty Ltd (‘FGA’) as the childcare centre manager in their ‘Jitterbugs’ Early Learning Centre, at Nabiac in Forster, NSW.  As will become more relevant in later parts of these reasons, it is important to also record that the applicant’s brother, Mr Amro Elshahat is the Managing Director of FGA.  

11. 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 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. In this case it is accepted that the applicant commenced her employment on 14 May 2019, approximately two weeks after the grant of her Subclass 187 visa.

12. Acting on the ostensible basis of the email received by the department on 11 April 2020 - as is now described above, in paragraph [2] of these reasons - and despite subsequent information from the employer later contradicting that information and stating that it had been provided in error based on the employer misinterpreting superseded payroll data; and despite other evidence also showing that the applicant remained in her employment after 10 September 2019, the delegate nonetheless used the power under s.137Q(2) to cancel the applicant’s visa, on grounds that she had not worked for her sponsoring employer for the required two year period.

13. On the hearing of this application for review the question as to whether the applicant’s visa should be cancelled under s.137Q(2) arises for reconsideration. It is now for the Tribunal to exercise that discretion anew.

14. When the applicant first arrived in Australia she was married to an American citizen, MLT, who had accompanied the applicant to Australia, as did their young children, each of whom are Canadian citizens.

15. Despite MLT having travelled to Australia with the applicant, there were longstanding irreconcilable difficulties in that marriage.  The applicant wished for a divorce, yet MLT would never agree to that unless the applicant first agreed to an annulment under Islamic law, as well as a parenting agreement under which the applicant agreed to grant sole custody of the children to MLT. 

16. Given intense pressure from MLT; the stresses associated with living as a separated couple under one roof; and due to an abiding concern for the need to shield her own children from further matrimonial conflict, the applicant eventually relented and agreed to MLT’s terms.  A parenting order was agreed on 14 May 2019, and a religious divorce then took place on 15 May 2019. 

17. On 5 October 2019, the applicant took approved annual leave from her job, to travel to Egypt to see her parents.  The applicant explained that the need for this travel arose in order for her to attempt to make peace with her parents regarding the decisions that she had made in dissolution of her marriage.  Here, the circumstances of the applicant having assigned sole parental responsibility for her children to her ex-husband had served to cause a degree of conflict as between the applicant and her parents in Egypt, who, as the applicant explained, felt the applicant could have done more in an effort to retain custody of the children.  Unfortunately, the applicant’s trip to Egypt did not serve to resolve differences with her parents over that particular issue. 

18. The Applicant returned to Australia and resumed work in her role at FGA in Forster on 11 November 2019. 

19. On 27 November 2019, MLT permanently departed Australia bound for Colorado USA, with the applicant’s children in his company.  The applicant explained that the departure of her children with their father, coupled with the unresolved conflict between herself and her parents proved to be an intolerable emotional burden for her, and she commenced to experience anxiety attacks.  At that juncture the applicant felt unable to work, and felt that she needed a period of further time as compassionate leave, primarily so that she could return to Egypt and renew attempts to make peace with her parents.  The applicant spoke to her brother, Amro Elshahat in his capacity as Managing Director of FGA about this and arrangements were made for the applicant to go on approved unpaid compassionate leave, commencing on 27 November 2019 until the end of March, 2020.

20. Once the applicant was back in Egypt, the issues with her parents continued unresolved thus adding to the applicant’s already intolerable emotional burden.  A cousin living in Kuwait then suggested that it may be in order for the applicant to come and spend some time with her in Kuwait, to give the applicant some temporary respite. 

21. On 24 December 2019 the applicant applied for an e-visa to enter Kuwait with a scheduled departure date of 27 March 2020 so as to allow sufficient time for a brief return to Cairo before flying to Australia at the end of March, as already ticketed.

22. On 13 March 2020 authorities in Kuwait unexpectedly announced the ceasing of all international airline travel in response to Covid-1.  In consequence, the applicant was now trapped in Kuwait, living with her cousin.  The applicant telephoned the human resources officer at FGA and asked that person that her brother Amro (with whom at the time the applicant was not speaking in consequence of the family dispute) be informed of the situation.

23. On 7 April 2020 the applicant’s civil divorce from her ex-husband MJT was issued by the District Court in Arapahoe County Colorado.  Not long after this, MJT was also very significantly injured in a motor vehicle collision, thus rendering him physically incapable of proper care for their children; thus further exacerbating the applicant’s existing emotional burden.

24. On 11 April 2020, Amro Elshahat contacted the department and advised that the applicant had ceased her employment with FGA on 10 September 2019.  The applicant was not aware of this communication and her brother was not, at that time, speaking with her, as he had taken his parent’s side in the family dispute regarding the applicant’s children.

25. Eventually, in June 2020, Amro Elshahat contacted the applicant directly, asking when she would be returning to Australia.  The applicant explained to her brother that she was still stuck in Kuwait, yet would be returning as soon as a flight could be obtained.  Amro Elshahat then requested that the applicant commence working in her role remotely, as the business was now at a critical juncture requiring her input.  Text messages seen by the Tribunal confirm this.

26. On 18 June 2020 the applicant did commence working, remotely, in her childcare centre manager role at FGA, and payment of her salary was resumed at this time.  Eventually, on 26 July 2020, the applicant was able to obtain airline tickets from Kuwait to Dubai.  FGA then payed for a ticket for the applicant to fly from Dubai directly to Sydney, with her arriving in Sydney on 28 July 2020. 

27. The applicant then underwent two weeks mandatory hotel quarantine, in Sydney.  Throughout the time in quarantine, the applicant continued to work for FGA by remote means.  The applicant resumed working on-site at Forster in her capacity as childcare centre manager in mid-August 2020.

28. In light of the foregoing account – all of which is now sufficiently corroborated to the Tribunal’s satisfaction by extrinsic documentary evidence – it is the case that the applicant took approved annual leave from her employment during the period 5 October 2019 until 7 November 2019 and then approved unpaid compassionate leave during the period 27 November until 27 March 2020.  That is not the same as there being any cessation of employment. 

29. Then, during the period of compassionate leave, the applicant had the misfortune to become trapped overseas in consequence of Covid-19 - until 28 July 2020.  Despite this, the applicant continued to work in her role as a childcare centre manager remotely from 18 June 2020 until her physical return to Forster NSW in mid August 2020.  The Tribunal is not prepared to find that there was a cessation of employment by the applicant between 27 March 2020 (when her approved compassionate leave came to an end) and 18 June 2020 (when the applicant recommenced work by remote means) in the specific circumstances arising in this case, as now described above.  Had it not been for the intervention of Covid-19, the applicant would have no doubt resumed on-site work in her role in Australia shortly after 30 March 2020. 

30. Further, the Tribunal concludes that the advice provided by Mr Amro Elshahat to the department by means of an email on 11 April 2020 - to the effect that the applicant had ceased her employment with FGA on 10 September 2019 - is demonstrably incorrect, and is a matter that was subsequently countermanded by him in later correcting advice to the department in which he advised that he had misinterpreted data contained on a superseded version of a payroll data system when informing that the applicant had ceased her employment  on 10 September 2019.     

31. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

32. 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