Haque (Migration)

[2018] AATA 5269

Haque (Migration) [2018] AATA 5269 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Nasirul Haque
Mrs Rubna Akter
Master Ruwayfi Raid Haque

CASE NUMBER:  1711379

HOME AFFAIRS REFERENCE(S):           BCC2017/679103

MEMBER:Catherine Carney-Orsborn

DATE:26 November 2018

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 other applicants.

Statement made on 26 November 2018 at 5:31pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – convicted of an offence against a law of a State – consideration of discretion – not a minor financial affair – deliberate act to obtain significant amount of money with fraudulent documents – family support in Bangladesh – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), r 2.43

CASES
COT15 v MIBP (No. 1) [2015] FCAFC 190
MIBP v Le (2016) 244 FCR 56
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 29 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)(g) as there was a prescribed ground for cancelling that visa under regulation 2.43(1). 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. 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 other applicants’ visas were 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 those other visas 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 them.

4. The applicants appeared before the Tribunal on 20 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from three character witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Bangla and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

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)(g). 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)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.

9. The applicant in submissions and at hearing stated that he had been convicted and pleaded guilty to an offence of Dishonestly Obtaining Financial Advantage Etc By Deception.  He was found guilty and ordered to pay a fine and was put on a good behaviour bond.

10. It is not in dispute that the applicant has been convicted of an offence against a law of a State (NSW). 

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

12. 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’.

13. The Tribunal took oral evidence at the hearing.  A summary of the oral evidence is as follows.

14. The applicant said he was born in Bangladesh in 1982.  He has family in Bangladesh including six siblings and parents.  They all are married and have children.  His father was a Registrar and his mother worked for government television.  He came to Australia in 2007 on a student visa.  He first studied engineering in telecommunications.  He then changed his study to hospitality management and did an advanced diploma.  He went through his work history.  In 2007 to June 2014 he worked at Big W as a night filler after three years there he took on extra work.  He claims he also worked at Apex in late 2012 early 2013.  He claims that Apex was cash in hand.  He took on further jobs as a cook at a restaurant and at BUPA.

15. He said that he has returned to visit Bangladesh a number of times.

16. He was sponsored by Bombay Grill as a restaurant manager on a 457visa.

17. He states that he has never been non-compliant with visa conditions.  He states he returned to Bangladesh to apply for a 457visa.  He said he had to apply offshore as his first application was refused as he did not pass the English requirement.

18. In relation to why he cannot return to Bangladesh.  He stated that the main issue is his son.  He claimed that his son could suffer.  He stated that the environment would be completely new.  He said that the life in Australia is healthier, the food is safer and the pollution is lower.  He said he was fearful his son would get sick.  The medical system was poor and the Doctors can incorrectly treat patients.  He claimed they are motivated by the pharmaceutical companies to prescribe certain drugs to patients and paid commissions to do this.  He further stated that if he goes back to Bangladesh he and his wife will not have a job.

19. He claimed that his parents live with his older brother.  He claimed if they return they may be homeless if his family does not provide accommodation.

20. He claimed that it would be difficult to get a job as he does not know any politicians and it is a very competitive job market.

21. He stated that he did submit false pay-slips and he received a loan however he has suffered a lot because of this.  He is now in detention and his wife is working and paying the rent.  He claims that if his wife has to go back to Bangladesh she will be frustrated and lose control of her temper and that this is all his fault.  He claims he was not right at the time he did it.

22. His wife will be bullied by friends and family if they return.  He claims he has told his family of his circumstances.

23. His wife gave evidence.  She said that she came to Australia in 2011.  She attended University in Dhakar and she had a good job.  He father had a government job and her brother works as a buyer in merchandising. 

24. She claims her mother does not know about her situation as she is fragile.  She claims that her father has taken a new wife and her mother can’t tolerate any more stress.   She claims that she would have no job in Bangladesh.  She is concerned about her son.  She claimed there are baby killers in Bangladesh.  She further claimed that if they return to Bangladesh people will think they have money and target them.  She claimed her father was kidnapped and her mother gave the kidnappers money and they let him go.  She claims she will be targeted if she returns.  She claims it will be impossible to get a job. 

25. Her father has retired and has another wife; her brother has a job but has his own family to look after.  She also claims that people will gossip about them.

26. The Tribunal then took evidence from the three character witnesses.  One was an employer and stated that they found the review applicant to be a good employee and trustworthy.  She could not comment on other aspects of his life.  The Tribunal also took evidence from two friends of the review applicant.  They asserted he was of good character and had been a good friend to them.  The Tribunal accepts that the character witnesses have found the applicant to be a good friend, helpful and a reliable employee.

27. The representative made oral submissions and referred to further detail being in the written submissions.

28. The Tribunal has before it the information on the Tribunal and Department file.  The applicant provided two reports from a Psychologist.

29. The report dated 12 April 2018 claims it was based on three assessment interviews.  The report detailed the history provided by the applicant.  It stated that his problems started when his wife became pregnant.  He claimed that his previous employer Apex did not take their responsibility for the inaccurate payslip.  He further stated that he was exploited by his employer.  In that report it is claimed his wife intends to go back to Bangladesh to live away from him and keep their 3 year old son to herself.  He claimed that the applicant is extremely stressed about the Department’s inquiry into his character and his suitability for living in Australia.  The psychologist’s opinion is that the applicant is under stress due to his immigration status and the pending review.  He seems to have formed the view that the applicant is a victim of his circumstances and was put under excessive pressure by the financial institutions.

30. A further report dated 16 October 2018 stated that it was the opinion of the psychologist that the applicant would not be likely to re-offend again.  He stated that it was unfortunate that the applicant had engaged in such minor financial affairs.

31. The Tribunal accepts that the applicant is suffering from stress due to the situation he faces of having his visa cancelled due to his conviction.

32. The Tribunal does not accept that it was a minor financial affair or that he was the victim of the financial institution.  The facts provided by the applicant and the police documents indicate that there was a deliberate act to obtain a significant amount of money by using fraudulent documents.  The applicant obtained over $34,000 which is in excess of an amount needed to buy a car for transport. 

33. The applicant went through the circumstances including that he needed to buy a car so that he could get to work and home in the early hours of the night.  The Tribunal accepts that it may be difficult moving from employment to other employment however many workers navigate these difficulties on a daily basis.  They do not commit a crime to assist with their transportation and usually find means to travel between employment including using public transport or uber or taxis.  The applicant was, according to his statement, working three jobs so it is reasonable to expect he had the funds to go the short distance to a major train station.  The Tribunal has considered the circumstances in which the ground of cancellation arose.  The applicant of his own volition applied for and received a loan of $34,101.57.  He sourced and presented fraudulent payslips and provided incorrect information to the financial institution.  These circumstances were not beyond his control.  He instigated the process.

34. The applicant provided a transcript of the sentencing judge and a large number of general information in relation to sentencing and the behaviour of financial institutions.  The applicant’s representative was pointing to the penalty being on a lesser scale for fraud however the judge’s remarks indicate that it was taken seriously and indicated there needed to be penalties that have some real impact.  The prescribed ground Reg. 2.4391)(oa) states that it is applicable “whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)”. 

35. The purpose of the applicant’s temporary stay in Australia was to work in Australia.  There is nothing before the Tribunal to indicate that he was not working or that there was any noncompliance with the conditions of his visa.

36. The applicant has claimed that there will be significant hardship to himself, his wife and his son if he returns to Bangladesh.  They have asserted they will not be able to get jobs.  They have further claimed they have no confidence in the Bangladesh medical services, food and pollution.

37. The applicants gave evidence of having strong family ties in Bangladesh.  They both came from families which had funded their education at University in Dhakar.  They have university degrees.  The applicant’s wife had a professional job in Dhakar before she came to Australia in 2011.

38. The evidence provided by the applicants indicates that both families’ parents had government jobs in Bangladesh.  They were able to fund their children’s education.  The applicants indicated that their siblings are also employed and made no claims that their siblings face any hardships in Bangladesh. They asserted that they could not be confident of their family supporting them as their families’ will be disappointed and they will face gossip.  The Tribunal does not accept this assertion.  There is nothing other than their own assertions that they will not be accepted back into their home country by their families.  It is clear from the evidence that the applicants family come from a privlidged position in Bangladesh.  Their families are educated and both have enjoyed government jobs at a high level.  Due to their position the Tribunal is confident that the applicants will be able to access appropriate food and medical services.

39. The third named applicant the applicants’ child is three years old.  The applicants made claims that he would suffer from being returned to Bangladesh as he has been in Australia since his birth.  At three years old the child is best placed wherever his parents are.  Their evidence is that he has never attended any school in Australia.  He has been cared for by a Bangladeshi woman.  The Tribunal does not accept that he will suffer as he is only used to Australia.  His parents appeared to be dedicated to his care and will with the assistance of their families be able to provide appropriate care in their home country where they were raised and educated.

40. The Tribunal does not accept that the applicants will suffer by having to return to their home country.  They have received further education, employment and language skills in Australia.

41. The Tribunal is satisfied that they are resilient, well-educated and resourceful.  The Tribunal is satisfied that with the support of their educated families they will be able to find employment as they have done in the past.  They were able to successfully re-locate to Australia which is a different language and culture.  Many people travel for work and then return to their home countries.  The applicant has only ever been on temporary visas there was never any guarantee of permanent residency.  The 457 visa is a temporary visa.  That visa ceased in August 2017.   The applicant has been on bridging visas since that time. 

42. The cancellation will result in the applicants being unlawful.  The applicant is currently in detention.  This issue could be remedied by his returning to Bangladesh with his family.  There are further sanctions on his ability to apply for further visas.   These sanctions are the result of a visa cancellation and apply to all applicants in the same situation.  The applicant acknowledged that his actions caused the breach and he is liable to the applicable sanctions.

43. The second named applicant asserted that she was concerned about dangers if they returned to Bangladesh.  She claimed her child could be killed.  She asserted that the family will be targeted by criminal elements if they return.  In her statement she stated that her father had been kidnapped in 2013 however was released when her mother provided some money to them.  Nothing was provided except her assertions. The applicant in evidence stated he had returned several times to Bangladesh.  His movement records confirm that he has returned five times and his wife three times.  After considering this the Tribunal is not satisfied that they would be in danger in Bangladesh however they could pursue those claims in a protection application.

44. In MIBP v Le the Full Federal Court, agreeing with COT15 v MIBP (No. 1) [2015] FCAFC, held that an assessment of Australia’s non-refoulement obligations is not a mandatory consideration where it is open for the visa holder to apply in Australia for a protection visa, even if the visa holder had previously been recognised as a refugee for the purposes of the Refugees Convention. As such, the Tribunal does not consider that the full assessment of the applicant’s claims in relation to any protection visa is required for the purpose of the present decision.  The Tribunal is mindful that the applicant is eligible to apply for the protection visa in Australia and have her claims assessed. If the applicant’s claims are true and, the applicant may be entitled to the grant of a protection visa and she would not be refouled to her country. Australia’s non-refoulement obligations would be fulfilled.

45. The Tribunal has considered all the evidence provided.  The purpose of the visa is for temporary work in Australia.  On 4 April 2017 the applicant was convicted at the Downing Centre Local Court of the offence of Dishonestly obtaining financial advantage etc by deception this enlivens cl116 (1)(g) and therefore grounds for cancellation.  On the evidence before it the Tribunal is not satisfied any international obligations would be breached.  The Tribunal is satisfied that the applicant may have to apply for a job in the Bangladesh and arrange care for his child.  The Tribunal considers that these are concerns that face any family that returns after re-locating to another country for work.  The Tribunal considers that the applicant has acquired further skills in Australia such as English language skills which will be of assistance to him and his family when he returns to the India.  The applicants also have family support in Bangladesh which was not available to them in Australia.

46. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

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

    Catherine Carney-Orsborn
    Member