Hussain (Migration) - [2019] AATA 6596

Hussain (Migration) [2019] AATA 6596 (29 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mehamood Hussain
CASE NUMBER:  1813938
HOME AFFAIRS REFERENCE(S):          BCC2018/1355531
MEMBER:Katie Malyon
DATE:29 November 2019
PLACE OF DECISION:  Sydney
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 29 November 2019 at 3:01 pm

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 May 2018 to cancel the Subclass 187 - Regional Sponsored Migration Scheme visa of the review applicant, Indian national Mr Mehamood Hussain, under s.137Q of the Migration Act 1958 (the Act).
Mr Hussain’s Subclass 187 visa was granted on 5 February 2016 on the basis that he would be employed by Cyber Park Technologies Pty Ltd (the Company) in the nominated position of ICT Security Specialist ANZSCO 262112. The nominated position was to be located in Toowoomba, Queensland.
The delegate cancelled the visa under s.137Q(2) of the Act on the basis Mr Hussain’s employment with the Company was terminated on 13 July 2016, that is, after just 2 days of the 2 year employment expectation under the Regional Sponsored Migration Scheme (RSMS) and the delegate was not satisfied that he had made a genuine effort to be engaged in that employment for the required 2 year employment period. A copy of the delegate’s decision was provided to the Tribunal.
Mr Hussain appeared before the Tribunal on 21 December 2018 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent, Mr Kris Ahn of Crux Migration.
ISSUES
The issues for consideration in the present case are whether the ground for cancellation under s.137Q of the Act is made out and, if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel Mr Hussain’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.137Q of the Act 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 Migration Regulations 1994 (the Regulations) for the purposes of the definition in s.137Q(3) of the Act. The visas currently prescribed by r.2.50AA of the Regulations are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme); and, Subclass 857 (Regional Sponsored Migration Scheme).
Under s.137Q(2) of the Act 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 of the Regulations); and the employment terminated within 2 years of the person commencing that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 6596
Decision Date: 29 November 2019

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Hussain against the cancellation of his Subclass 187 Regional Sponsored Migration Scheme visa. The visa was cancelled under section 137Q of the *Migration Act 1958* (Cth) on the grounds that his employment ceased within two years of commencement, and he had not satisfied the Minister that he made a genuine effort to be engaged in that employment for the required period. Mr. Hussain's employment with the sponsoring company, which was for an ICT Security Specialist position in Toowoomba, terminated shortly after it began due to the company's economic downturn and the cessation of a project. The company was subsequently deregistered. Mr. Hussain provided evidence of his subsequent casual employment in the same regional area, his efforts to find work in Brisbane, and strong family and social ties in Australia.

The primary legal issue before the Tribunal was whether Mr. Hussain had satisfied the requirement under section 137Q(2)(c) of the Act to demonstrate a genuine effort to be engaged in the nominated employment for the required two-year period, despite the early termination of that employment. This involved interpreting the scope of "genuine effort" and whether it necessitated continued engagement with the original employer or within the specific regional area. The Tribunal was also required to consider the genuineness of the initial employment arrangement itself, in light of the company's subsequent deregistration and Mr. Hussain's actions upon arrival in Australia.

The Tribunal found that the delegate's decision to cancel the visa was based on an incorrect interpretation of section 137Q(2). Citing *Yoon's case* and *Parekh (Migration) [2018] AATA 2713*, the Tribunal held that the "genuine effort" requirement did not mandate that the visa holder remain in the relevant regional area or continue seeking employment solely with the original nominator. Instead, a genuine effort to secure further employment within a designated regional area could suffice. While acknowledging that the company's deregistration made continued employment impossible, the Tribunal noted that the company was still operating for some months after Mr. Hussain's termination. However, the Tribunal ultimately concluded that it was not satisfied that Mr. Hussain had made a genuine effort to be engaged in the nominated employment for the required period, and that the employment agreement may not have been genuine, potentially being an arrangement to facilitate migration.

Despite the finding that the ground for cancellation might not have been established based on the interpretation of "genuine effort," the Tribunal's overall conclusion was that it was not satisfied that Mr. Hussain had made a genuine effort to be engaged in the employment for the required period. The Tribunal therefore set aside the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel Mr Hussain’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE Under s.137Q of the Act 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 Migration Regulations 1994 (the Regulations) for the purposes of the definition in s.137Q(3) of the Act. The visas currently prescribed by r.2.50AA of the Regulations are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme); and, Subclass 857 (Regional Sponsored Migration Scheme). Under s.137Q(2) of the Act 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 of the Regulations); 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. Relevant provisions of the Act and the Regulations referred to in this decision are extracted in the Attachment to the decision.Information before the Department By way of summary and as set out in the delegate’s decision, Mr Hussain claims that his employment with the Company was terminated on 13 July 2016 due to economic downturn to the business leading to his services no longer being required. In support of this claim and in response to the Department’s Notice of Proposed Cancellation under Section 137Q of the Migration Act 1958 (NOICC) issued to Mr Hussain on 22 March 2018, Mr Hussain’s representative provided the Department with a submission dated 26 March 2018 together with a range of documentation including a letter from the Company dated 1 March 2018 confirming that its IT Security Department in Toowoomba ‘had to be shut down due to loss of project s (sic) in mid-2016 as a result of which Mr Mehamood Hussain’s services were no longer work required’. Other documentation provided by the representative to the Department included:·Employment Contract made between the Company and Mr Hussain dated 11 December 2014;·Employment Termination letter dated 14 July 2016 signed by a Director of the Company and Mr Hussain;·ASIC extract confirming the Company was deregistered on 16 March 2018;·estimation of Flight Tickets from Riyadh to Brisbane;·letters from Medical Practitioners:a)Dr Munza Ashraf dated 22 February 2018; and, b)Dr De Worboys , Clinical Psychologist, dated 23 February 2018 and 2 March 2018;·evidence of Mr Hussain’s casual employment with Green Workforce Pty Ltd (Green Workforce) in Toowoomba:a)Certificate of Appreciation dated 1 November 2017;b)Employment Reference Letter dated 23 February 2018; c)Mr Hussain’s ANZ Bank Statements confirming payment of salary;d)PAYG Payment Summary for year ended 30 June 2017; and,e)payslips from 30 January 2017 – 18 February 2018;·Mr Hussain’s job applications for work in Brisbane from 13 January 2017 to 21 February 2018; ·letters from family members including:a)9 year old son Ahmed Hussain;b)12 year old daughter Alviya Hussain;c)Viquar Unissa Syeda, Mr Hussain’s wife; and,d)Mohammed Hussain, Mr Hussain’s brother;·Semester 1 2017 Report from West End State School and class photos for Ahmed Hussain and Alviya Hussain together with School Awards issued to Alviya Hussain;·Rights of Child between Australia, India and Saudi Arabia;·Certificate of Appreciation to Mr Hussain from West End State School for Volunteer Contribution 2017; and, ·Statutory Declaration of Mr Hussain sworn 10 March 2018.

Decision

Reasons for decision

As observed by the Tribunal during the course of the hearing, when it obtained the Passenger Card completed by Mr Hussain and his wife prior to their arrival in Australia, it had assumed that this provided strong evidence of the genuineness of the proposed employment arrangement in Toowoomba. It was only during the course of the hearing that it became evident Mr Hussain did not know the address in Toowoomba which he and his wife had inserted on their Passenger Cards. The Tribunal notes in passing that, had Mr Hussain and his wife included a Brisbane address on their Passenger Cards when making their first arrival in Australia following grant of their Subclass 187 visas, this would likely have prompted immigration officials to make enquiries of them before clearing them to enter Australia. Conclusion Overall and having regard cumulatively to the considerations outlined above, the Tribunal is not satisfied that Mr Hussain has made a genuine effort to be engaged in the employment referred to in the Company’s related employer’s nomination for the required 2 year period. The clear impression emerging from the cumulative evidence considered by the Tribunal is that the employment agreement between Mr Hussain and the Company may not have been genuine: rather, it may have been merely an arrangement to assist Mr Hussain (and his family) achieve a migration outcome. The Tribunal makes no findings in this regard as it found Mr Hussain to be someone who may have naïvely engaged with the Company with a view to his migrating to Australia, encouraged by both the Department and the RCB’s assessment of the opportunity to work with the Company as being genuine. In passing, the Tribunal rejects the representative’s submission that the genuine nature of the employment has already been successfully assessed by 2 different authorities: namely, the Department and the RCB, in this case, the CCIQ. Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31, certification by a RCB is not sufficient or determinative in relation to whether the nominator meets, relevantly, r.5.19(4)(ii)(B) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the RCB, it must reach its own conclusions about the matters the subject of the RCB’s advice. In the circumstances of this case, that has not been necessary. The Tribunal also does not accept the representative’s submission that it was not possible for Mr Hussain to continue his employment for the required 2 year period. Whilst the Tribunal acknowledges that, subsequently on 16 March 2018 the Company was deregistered by ASIC and it would therefore not have been possible for Mr Hussain to continue with employment with the Company for the full 2 year period, it is nonetheless evident that the Company was at least continuing to operate in Brisbane for some months beyond 14 July 2016 when Mr Hussain’s employment was terminated.

Ratio Decidendi

Legal Principle Established

The representative requested Tribunal set aside the decision under review and substitute it with a decision not to cancel the visa by accepting that making a genuine effort to be engaged in a further employment arrangement within a designated regional area is not a requirement of s.137Q(2) of the Act. For these reasons, the Tribunal should not be satisfied that the relevant ground for cancellation in s.137Q exists and it follows that the power to cancel Mr Hussain’s visa does not arise.Consideration of whether the ground for cancellation exists - employment terminates within 2 years As noted above, under s.137Q(2) of the Act, the Minister may cancel a Subclass 187 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 of the Regulations); 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 (emphasis added). There is no dispute that Mr Hussain commenced employment with the Company on 11 July 2016 when he presented to the Company’s Brisbane office. Based on his Statutory Declaration provided to the Department in response to the NOICC, he spent the day working in the office reviewing a few security policies of the Company’s internal system. Based on oral evidence at the hearing, he told the Tribunal that he and the boss went to Toowoomba where they met with 2 representatives from the customer with whom he would be undertaking his ICT Security Specialist work. Further, there is no dispute that Mr Hussain was verbally advised the next day, 12 July 2016, that his employment with the Company would be terminated arising from the fact that the customer in Toowoomba no longer wished to engage the Company’s services and, as a result, Mr Hussain had been made redundant. He received formal notice of termination of his employment on 14 July 2016. This with consistent with the Company’s contract termination letter dated 14 July 2016 provided to the Department in response to its NOICC. The termination letter, signed by both the Company and Mr Hussain, is dated 14 July 2016 and states that the IT Security Department in Toowoomba has closed and that termination of Mr Hussain’s employment is effective 13 July 2016. In his Statutory Declaration provided to the Department, Mr Hussain notes that the Company paid him $390, gave him a pay slip and a PAYG Payment Summary when it handed him his termination letter. Accordingly, the issue for the Tribunal’s consideration is whether Mr Hussain has satisfied the Minister that he has made a genuine effort to be engaged in that employment for the required 2 year period. The Tribunal accepts the submission made by Mr Hussain’s representative regarding the errors in the delegate’s decision (as highlighted in the extracts above from the delegate’s decision at para [46]) that it is not necessary for the Subclass 187 visa holder to remain in the relevant regional area and seek employment within that area. The Tribunal prefers the approach as articulated in Yoon’s case which adopted the earlier decision in Parekh (Migration) [2018] AATA 2713 (23 May 2018). In Parekh, the Tribunal was called upon to interpret s.137Q(2) and to determine whether the “employment” referred to in s.137Q(2)(b) is the employment referred to in the relevant employer nomination.[5][5] Parekh (Migration) [2018] AATA 2713 at [67]