Hussain (Migration)

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

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – employment ceased – position of ICT Security Specialist – genuine effort to engage in employment – business deregistered – applicant took up overseas temporary employment – employment within the same regional area – no legal advice sought to fulfil contract – strong family and social ties in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, s 137
Migration Regulations 1994, Schedule 2 cls 187.611; rr 2.50, 5.19
CASES
Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 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.
The delegate’s decision notes that Mr Hussain claims in his Statutory Declaration that:
-He could not complete the required 2 years of employment with the Company after his RSMS visa was granted due to the economic downturn of the business. Because of this economic downturn, the Company terminated his employment. He provided evidence that the Company deregistered for GST in September 2017 and then, subsequently, ASIC deregistered the legal entity itself on 16 March 2018.
-He made a genuine effort to fulfil the requirement to commence the work and remain employed with the Company for four years, two more than the required employment per the employment contract.
-He and his family arrived in Australia on Friday, 8 July 2016 and he commenced employment on Monday, 11 July 2016.
-He departed on 31 July 2016, shortly after the termination date. This should not be considered as a non-genuine effort. After the redundancy notice, he quickly returned to Saudi Arabia so that he could earn an income for him and his family.
-The main purpose of his Australian migration was for his family, especially his wife and children, to allow them to live and be part of the community and be treated equally as human beings.
-He is the sole breadwinner of his household of five and gave up his long serving employment in the biggest financial institution in the Middle East to come to Australia to work for a small company in a regional area.
-He has incurred significant costs to move his family to Australia which is estimated at approximately $12,000.
-He sought professional help after receiving the redundancy letter as he suffered from an emotional breakdown.
-He and his family returned to Australia in January 2017 after securing new employment at a local ICT consultancy firm, Green Workforce, located in Toowoomba. He makes the 3 hour return trip to Toowoomba to fulfil his new employment duties on the days when he is required to work.
-He has been employed on a casual basis approximately 20 hours per week since February 2017 to date. Evidence of the new employment provided, such as employment reference letter, payslips and bank transaction history.
-He has been looking for permanent full-time employment in his professional field since he returned.
-His wife has provided a letter addressing her concerns. The letter addresses the juxtaposing scene of their current lives here in Australia and the hypothetical situation should their visas be cancelled. She also highlights the very essence of human rights and gender equality issues, as well as the best interests of their children, should their visas be cancelled and they are required to depart.
-The children have been attending primary school here in Australia and have integrated into the Australian community.
-It is in the best interests of the couple’s three children to remain in Australia on their current visa. The children will be exposed to poor environments if their visas are cancelled and they are deported back to either Saudi Arabia or India.
-He volunteers for the community and has been awarded for his efforts.
-The cancellation of the visa would bring a significant degree of psychological, emotional and financial hardship.
Following termination of his employment, Mr Hussain and his family departed Australia on 31 July 2016. They went back to Saudi Arabia and returned to Australia in late January 2017..
The delegate considered that Mr Hussain did not provide any evidence to the Department indicating that he had attempted to source alternative employment within the regional area upon his termination: rather, he chose to leave Australia and return to Saudi Arabia with his family for an extended period. Whilst the delegate acknowledges Mr Hussain’s explanation that this was done to secure income for his family, she considers it unusual that Mr Hussain and his family decided to return to Saudi Arabia for 6 months instead of exploring employment opportunities in Toowoomba. As a result, the delegate was not satisfied that Mr Hussain had made a genuine effort to fulfil his employment obligations under the RSMS program.
Since his return to Australia, the delegate notes Mr Hussain claims that he has secured employment as a casual employee with Green Workforce, a small ICT consultancy company in Toowoomba, working in his nominated occupation but the employment is casual and does not meet the sponsorship requirements under the RSMS program which is expected to be full-time permanent employment. In addition, the delegate states it is unusual that the family has chosen to reside in Brisbane when the main income earner is required to travel significant distances – in the order of 126 km – to engage in casual work. As this has continued for more than 12 months, the delegate concludes this further demonstrates that Mr Hussain has been unable to meet his employment obligations under the RSMS program.
The delegate acknowledges Mr Hussain has attempted to secure permanent full-time employment and provided the Department with evidence of his search for permanent employment in. However, all the evidence confirms he has applied for positions in Brisbane rather than the designated regional area of Toowoomba. As such, the delegate considers this further demonstrates he has not made a genuine effort to remain engaged in regional employment.
Finally, the delegate notes Mr Hussain submitted that his primary motivation in applying for the visa and making the decision to migrate his family was due to concerns for his wife and children in relation to their civil liberties in Saudi Arabia. The delegate observes that this raises some concerns as the RSMS visa program is not intended for this purpose.
By way of concluding comment, the delegate acknowledges Mr Hussain’s employment was terminated for reasons beyond his control. However, having considered the reasons raised by Mr Hussain as to why his visa should not be cancelled the delegate noted that Mr Hussain’s family resides in Brisbane and that he has been unable to meet the employment obligations of the RSMS visa. Based on this evidence, the delegate concludes Mr Hussain has not made genuine efforts to live and reside in a regional area as expected under the RSMS visa program and concludes that, therefore, there is ground for cancellation of the visa under s.137Q(2) of the Act.
Having been satisfied that there is a ground for cancellation, the delegate then considered whether there are any relevant considerations that might support not cancelling Mr Hussain’s visa. The delegate considered evidence provided by Mr Hussain addressing matters as outlined in the Department’s Procedural Instruction Visa cancellation – Cancellation of regional sponsored employment visas and concluded that, having considered the reasons that Mr Hussain raised as to why his visa should not be cancelled, these reasons did not outweigh the reasons to cancel his visa. Therefore, the delegate decided to cancel Mr Hussain’s Subclass 187 visa.
Documentation lodged before the hearing
Shortly after lodging the application for review, Mr Hussain’s representative provided a submission addressing the law and policy in the context of Mr Hussain’s circumstances. He also submits that the delegate erred in her decision by incorrectly interpreting the legislation rendering the decision ultra vires.
The representative also states that:
·on 6 January 2015, the Company lodged a RSMS employer nomination for Mr Hussain for a position of ICT Security Specialist at its Toowoomba office.
·Mr Hussain lodged a Subclass 187 RSMS visa on 27 June 2015 which was granted on 5 February 2016.
·Mr Hussain had a successful career in his occupation as an ICT Security Consultant at the Global Head Office of Al-Rajhi Bank in Saudi Arabia, one of the biggest banks in the Middle East.
·To migrate to Australia, Mr Hussain had resigned from his long serving and secure employment where he had worked for over 6 years.
·Mr Hussain and his family arrived in Australia on Friday, 8 July 2016 and he commenced his employment with the Company on Monday, 11 July 2016: that is, within the first 6 months as required under s.137Q(1) of the Act and r.2.50AA of the Regulations.
·Mr Hussain’s genuine effort and intention to complete the required two-year employment were made irrelevant as the Company terminated his employment 3 working days after Mr Hussain commenced claiming they are experiencing a serious downturn in business activity.
·The delegate acknowledged termination of Mr Hussain’s employment was outside his control.
In addition, the representative submits that there is no evidence to suggest that there was any foul play or intentional sabotage by Mr Hussain that affected the Company’s business downturn as confirmed by the Company Director’s termination letter of 14 July 2016 where he states “termination is not due to any non-compliance from your side”. Further, public records through ASIC and ABR show that the Company was deregistered for GST in September 2017 and then, subsequently, it was deregistered from 16 March 2018. As such, the Company’s business was genuinely experiencing a significant downturn and, ultimately, legal and financial closure.
The representative refers to immigration policy which states:
A visa holder may be able to satisfy the delegate that they have made a genuine effort if the failure to commence or complete the two-year employment period was because of a situation beyond the visa holder’s control. Examples include:
·the position was not filled or did not remain viable due to a serious downturn in business activity or
·financial loss, bankruptcy or closure of the business.
Having regard to this policy, the representative submits the facts and events impacting the Company are clearly outside Mr Hussain’s control. It was due to the termination of the Company’s business that it was not possible for Mr Hussain to continue his employment for the required two-year employment period. He concludes that the circumstances in which the ground for cancellation arose were patently beyond Mr Hussain’s control.
Further, the representative states that the delegate failed to give appropriate weight to this fact which should have been the primary consideration when considering whether Mr Hussain has made a genuine effort to be engaged in employment with the Company. In his opinion, the delegate clearly failed to follow Departmental procedure which contains specific instructions on circumstances that Mr Hussain has faced as the Company’s business closed down.
By way of final comment, the representative notes that cancellation of Mr Hussain’s Subclass 187 visa has already bought a significant degree of psychological, emotional and financial hardship to Mr Hussain and his family, all of whom depend on him. He adds that Mr Hussain is a man of integrity, has no history of visa infractions and the Department agrees that he has been very co-operative with the authorities.
Hearing
As noted above, Mr Hussain appeared before the Tribunal on 21 December 2018 to give evidence and present arguments. Mr Hussain’s wife, Ms Viqar Syeda, and his young children attended the hearing but his wife was unable to give evidence as she was caring for the couple’s children. Mr Hussain’s representative also attended the hearing. At Mr Hussain’s request, the Tribunal arranged for an interpreter in the Urdu and English languages to assist Ms Syeda in anticipation of her giving evidence. However, as she did not give evidence, the interpreter’s services were not required. For clarity, the Tribunal notes Mr Hussain did not use the interpreter at all.
At the hearing, the representative provided a copy of an earlier NOICC issued by the Department dated 22 February 2018 that suggests Mr Hussain did not commence employment with the Company. This earlier NOICC was superseded by the NOICC dated 22 March 2018 issued under s.137R of the Act and which led to the delegate’s decision to cancel Mr Hussain’s visa on 14 May 2018. The representative also provided a copy of the decision made by the Tribunal (differently constituted) in Yoon (Migration) [2018] AATA 3621 (24 August 2018) (Yoon’s case). In that case, the Tribunal set aside cancellation of a Subclass 187 RSMS visa in circumstances where an applicant was, 4 months after commencing employment with their nominator, made redundant owing to economic conditions following the mining downturn in Western Australia.
Mr Hussain’s evidence
At the outset, the Tribunal discussed with Mr Hussain the terms of his contract of employment with the Company dated 11 December 2014. Relevantly, the contract states that the commencement date is ’Within one month after the visa approval date’ and is expressed to be ‘Fulltime for a fixed term of four (4) years’.
Mr Hussain told the Tribunal that he was not expecting the nomination and visa approval process to take so long. He added that 3 things happened in December 2014: he signed the contract with the Company; he was promoted at the Al-Rajhi Bank in Saudi Arabia from being an Information Security Consultant to Information Senior Supervisor; and, his youngest son was born. At the time he accepted the offer of employment and signed the contract with the Company in mid-December 2014, he was not aware that his duties with the Al-Rajhi Bank would increase. Mr Hussain added that he was overwhelmed with the new baby as well as his promotion and, when he called the Company about his promotion and increased role with the Al-Rajhi Bank, he was told that he could commence employment later because the contract with the customer in Toowoomba was not going to start until July 2016. Mr Hussain told the Tribunal there was no written variation of the contract of employment confirming the oral arrangement regarding a later start date.

In relation to the period of the employment engagement, Mr Hussain acknowledged the contract provided for a fixed term of 4 years. He said he understood the nature of that clause in the contract. The Tribunal observed that, subject to resolving the issue of whether it was a fixed term contract given not only the flexible and therefore ambiguous commencement date but also cl.8 which gives the Company the right to terminate on notice, he may have been eligible to be paid out for the whole of the term of the contract or secure specific performance of the contract. Mr Hussain responded ‘that’s good’ and added he was ‘not aware’ of that. He reflected that the fixed term provision was strategic because it meant he had 4 years of secure employment and with 4 dependents, he is the only breadwinner, it would be difficult to survive if he lost his employment. Asked about his response when, on his second day at the office, he was told his employment was terminated by the Company, Mr Hussain said he did not seek advice from an employment lawyer. During the course of the hearing, he confirmed a number of times that he did not seek advice from an employment lawyer and nor did he contact the Department to discuss the implications of the sudden termination of his employment. He said he only contacted his representative. He added that, so far as he was aware, the only condition attached to visa required him to arrive in Australia within 6 months of visa grant. The visa was granted on 5 February 2016 and, so, he and his family needed to arrive before 5 August 2016: they all arrived on 8 July 2016, that is, 5 months after grant of the visa.
The Tribunal noted the Company’s nomination was approved on 8 May 2015. Asked what would have happened had his visa been granted sometime in 2015, Mr Hussain said he would have arrived within a month. He added he only came to know of the revised July 2016 date for the customer’s work in Toowoomba after the visa was granted.
When questioned about the customer in Toowoomba, Mr Hussain said he could not tell the Tribunal the name of the customer because he had signed a confidentiality agreement with the Company and referred to cl.9.1 of the contract of employment. However, he could say it was not a bank: rather, it was a financial services business. He said that he met the customer’s IT Manager and one other person who took Minutes during the course of a meeting. Mr Hussain added that Toowoomba is a small region and saying anything about the customer would expose the customer. The Tribunal noted that Toowoomba, in its opinion, is not a small region (Toowoomba city has a population of over 130,000 and is the regional centre for the Darling Downs which has a population in the order of 250,000)[1] and it even has an international airport.[2] The Tribunal observed that the claimed lengthy delay in the customer seeking to engage the Company’s services and the Company’s signing Mr Hussain up for a fixed employment term of 4 years to deliver those services together with his reluctance to provide any information about the customer raised doubts in the mind of the Tribunal about the existence of the claimed contract with the Company’s customer. It also observed that it could refrain from publishing its decision on public interest grounds or redact information to de-identify the customer, if required.
[1]
[2] >
In response, Mr Hussain said he strategically to mitigate his risks and thought he would be safe with work for 4 years. So, when his job was taken away from him quickly after his arrival, he could not think clearly, was mentally blank and had no contingency plan. The Tribunal put to Mr Hussain that it appeared he may not have had a contingency plan because there was, in fact, no customer project in Toowoomba. Mr Hussain replied saying that when he arrived, he thought he had 4 years of employment so he did not think of doing anything else apart from working for the Company.
Having regard to the fact that in July 2016 Mr Hussain brought with him - at, no doubt, considerable cost - his wife and 3 children, the Tribunal asked if he had made arrangements in relation to accommodation in Toowoomba in anticipation of the whole family’s arrival. He told the Tribunal he did not make any arrangements because he needed to be able to have the necessary 100 point ID to show before being able to lease a property. He was going to take that step once they arrived here. Asked if he knew anyone in Toowoomba, Mr Hussain said he did not but his brother had a friend there (Mr Piroz Mona) although he did not know where his brother’s friend lives in Toowoomba. Questioned as to whether he had done any research or made any enquiries about enrolling his children at schools in Toowoomba, Mr Hussain said that he did not do this because he would have enrolled his children in the local public school based on living in whatever catchment area their accommodation was located.
Consistent with the provisions of s.359AA of the Act, the Tribunal put to Mr Hussain evidence that he and his wife had, in their Passenger Cards completed when arriving in Brisbane on 8 July 2016, indicated that they would be living at 2/22 Spencer Street, Harristown, Toowoomba and, further, they responded ‘Yes’ to the question as to whether they would be living in Australia for 12 months or more. Mr Hussain requested a short break before responding. When the hearing resumed, Mr Hussain told the Tribunal that he mentioned that address (in his Passenger Card) because it was his brother’s friend’s house and he now recalls doing that. He added that, when they arrived (in Brisbane) his brother told him not to live there (in Harristown, Toowoomba) because there wasn’t enough room at that place and another family had vacated their house in Brisbane so they were able to stay there until they were able to find a permanent place: that never happened because, 3 weeks later, the family returned to Saudi Arabia.
The Tribunal observed that, in light of his having a fixed term contract of employment for 4 years and the obligation to start work in Toowoomba on 11 July 2016 consistent with the contract and, further, having completed his Passenger Card giving an address in Toowoomba and taking up residence in a vacant house in Brisbane (at his brother’s suggestion) raises doubts regarding the genuineness of the claimed employment arrangement with the Company to work in Toowoomba. Mr Hussain said it was a case of timing being perfect as his brother’s friend in Brisbane was away on vacation and the Company had another office at the West End in Brisbane. His brother told him that he could live in his friend’s house in Brisbane while it was available and then they could figure out what to do in Toowoomba later: however, that did not happen and the family left 23 days later. They returned to Saudi Arabia and stayed there for 4 months but, despite using his acquaintances, he was not able to find work there: the family lived off savings and stayed with his sister there. They briefly returned to India before travelling to Australia again arriving on 27 January 2017.
When asked about his employment in Saudi Arabia, Mr Hussain said that he was paid on a monthly basis when working with Al-Rajhi Bank. Consistent with the provisions of s.359AA of the Act, the Tribunal put to Mr Hussain information that, as an employee of Al-Rajhi Bank who was paid on a monthly basis, Saudi Arabia’s employment law provides a minimum statutory notice period of 60 days for termination of a contract of employment.[3] In the circumstances, he could have given 2 months’ notice following approval of his Subclass 187 visa on 5 February 2016 such that he could have arrived in Australia in April 2016. The Tribunal observed that this appeared another factor relevant for its assessment of the genuineness of the arrangement with the Company. Mr Hussain said that he was required to give one months’ notice under his contract of employment but, following his promotion, it was not possible to complete a handover in that time. Further, it was agreed with the Company, that he would start later. As far as he was concerned, it was a genuine contract of employment with the Company because both the Department and the Regional Certifying Body (RCB) had confirmed it was a sustainable, secure job that lead to his visa being approved.
The Tribunal put to Mr Hussain that it appears the lack of evidence regarding efforts to look for work in Toowoomba following being advised of termination of his employment with the Company just one day after starting work with them raises doubts in the mind of the Tribunal as to whether information provided in the Passenger Card was false or misleading such that it raises issues in relation to Public Interest Criteria (PIC) 4020. Mr Hussain responded that his brother gave him the address of his friend at 2/22 Spencer Street, Harristown but later told him the place was not big enough for his family and also told him that he was aware a family had gone away from Brisbane for 3 weeks so there was accommodation there (in the short-term). Asked whether he intended to move to Toowoomba, Mr Hussain replied yes but added he couldn’t do so then because of the size of his family and he did not have the 100 points ID to secure a leased property.
[3] >
Questioned by the Tribunal about whether he visited Toowoomba when in Australia in July 2016, Mr Hussain said that he and his boss drove up to Toowoomba to meet the customer on Monday, 11 July 2016. The Tribunal observed that this was the first time he had provided this advice about visiting Toowoomba during his 3 week stay in Australia. The Tribunal referred to his Statutory Declaration sworn 10 March 2018 lodged with the Department in response to its NOICC in which Mr Hussain states:
“7. When we first arrived in Australia on Friday, 8 July 2016, and (sic) I immediately went to work on the following Monday the (sic) 11 July 2016. My first day involved in (sic) reviewing a few security policies of their own internal system, but not the ones that we had discussed during our technical interview.
8. On the very next day, 12 July 2016, the employer had advised me that they had lost all the security contract and they did not have any work for me to do. They advised me that they decided to close down their Toowoomba office. At first I thought my termination and redundancy was a joke, however I realised that they truly had no work for me to do.”
Mr Hussain acknowledged that he neglected to mention in his Statutory Declaration lodged with the Department that he went to Toowoomba on Monday, 11 July 2016. He added that we (he and his boss) came back later that afternoon. It was when he went to the office the next day, on 12 July 2016, that he was advised that the contract had been lost.
Asked why the contract with the customer in Toowoomba had been lost, Mr Hussain said he had no idea. The Tribunal observed that, in its opinion, it would be rare for the owner of a business to make the 1½ hour drive to Toowoomba, meet with a prospective customer - in the circumstances of this case, a customer whose work had been lined up since lodgement of the Company’s nomination on 6 January 2015 – and yet not discuss aspects of the project that he had been nominated to deliver on behalf of the Company consistent with the Company’s nomination and his employment contract. He replied that they said nothing (at the meeting on Monday, 11 July 2016). The Tribunal observed, again, that Mr Hussain’s inability to respond to the Tribunal’s observations raised further doubts regarding the genuineness of the claimed proposal to deliver services to a business in Toowoomba in the financial service sector.
Questioned as to whether he endeavoured to find work in Toowoomba after termination of his employment, Mr Hussain said he did not try. He added he did not make any effort because he did not want to stay any longer as he had no job. The representative referred the Tribunal to the decision of the Tribunal (differently constituted) in Yoon’s case. He noted that, whilst he accepts another AAT decision is not a precedent, it nonetheless is relevant to the circumstances of this case. The Tribunal acknowledged the representative’s observations. Mr Hussain continued. He said that, as he understood it, he had 2 obligations arising from grant of the visa: first, work with his nominator; and second, arrive within 6 months of grant of the visa. He added that, if he had a legal obligation to stay in Toowoomba, he would have done so: as it was, he was blank. He confirmed again that he did not seek advice from the Department and nor did he seek advice from an employment lawyer. He added he read the document (that is, the visa grant notice) which said he had been granted the visa on the basis of nomination by the Company to work for the Company in Toowoomba as an ICT Security Specialist.
The Tribunal then asked Mr Hussain regarding his efforts to find employment in Toowoomba following his most recent arrival in Australia on 21 January 2017. He said he kept applying for jobs online before he arrived and managed to secure a casual job with Green Workforce. He started with that business in February 2017. They had some clients in Toowoomba and Ipswich that he was able to serve by working remotely, going on a quarterly basis for specific tasks or otherwise, as required. He no longer works with Green Workforce having finished up with them on 23 November 2018.
Regarding current employment opportunities, Mr Hussain said that he has been applying online for jobs and has been receiving offers from all over. Most recently, he was offered a permanent full-time position as an ICT Cyber Security Specialist with Energy Australia. However, he was not able to accept the offer because his permanent residence visa has been cancelled and, pending a resolution of his visa situation by the Tribunal, he could not accept such an offer. Mr Hussain said he has also received another recent offer to work in the Brisbane CBD with a large business. That offer of full-time employment too did not proceed because of his pending visa situation. The Tribunal notes that Mr Hussain holds a Bridging E visa with unrestricted work rights. Mr Hussain said, pending the Tribunal’s decision, he has been doing some odd jobs including delivery of food and other items including flowers which he typically delivers to hospitals on a weekly basis. He added that he needed to supplement his income from Green Workforce as that was not enough to cover his family’s expenses. Reflectively, he stated his goal now is to work with a large company again (like the bank in Saudi Arabia) doing work as an ICT Cyber Security Specialist after his experience of working for with a small business such as the Company.
The balance of Mr Hussain’s evidence addressed the Tribunal’s discretion in the event that it finds the grounds for the cancellation of his Subclass 187 visa are made out. Mr Hussain’s evidence in this regard is discussed below.
The way of concluding comments, the representative submitted that Mr Hussain was genuinely made redundant by the Company when it terminated his employment and, in the circumstances of this case, he should be seen as a victim having brought all his family to Australia. The representative posed the question as to why Mr Hussain would bring all his family and spent thousands of dollars in the process. He reminded the Tribunal that the delegate had made a mistake in saying that Mr Hussain was required to stay in Toowoomba and work there.
Ms Syeda’s evidence
As noted above, Ms Syeda declined to give oral evidence as she was looking after her children. However, the representative referred the Tribunal to Ms Syeda’s letter of 24 March 2018 lodged with the Department in response to the NOICC. A summary of the content of that letter is set out below at para [109]
Documentation lodged after the hearing
On 19 February 2019, the representative provided a further submission. The representative refers to the decision in Yoon’s case and states that, at para [18] of that decision, the Tribunal (differently constituted) interpreted whether “the employment” referred to in s.137Q(2) of the Act is the employment referred to in the relevant employer nomination, in this case, the nomination made by the Company. In addition, the representative notes the earlier Tribunal’s comment that there is no requirement that a genuine effort be engaged in for further employment within the designated regional area (emphasis added). This Tribunal accepts both of these submissions.
The representative also extracts text from the delegate’s decision and highlights reference to comments which are inconsistent with the Tribunal’s opinion that making a genuine effort to be engaged in further employment within the designated regional area - in this case, Toowoomba - is not a requirement of s.137Q(2) of the Act. Text extracted from the
delegate’s decision (with highlighted text underlined) is as follows:
The visa holder has not provided any evidence that he had attempted to source alternative employment within the regional area upon his termination, but rather he chose to depart Australia and return to Saudi Arabia with his family for an extended period.
..
Due to this, I remain unsatisfied that the visa holder may genuine efforts to fulfil his employment obligations under the RSMS visa program.
..
However I note all the roles that the visa holder has applied for are located in Brisbane and not in the designated regional area. I consider that this further demonstrates that the visa holder has not made genuine efforts to remain engaged in regional employment.
…
When considering that the visa holder’s family resides in the Brisbane metropolitan area and the visa has holder has been unable to meet the employment obligations of the RSMS visa, I consider each of these factors indicate that the visa holder has not made genuine efforts to live and reside in the region a regional area as expected under the RSMS visa program.
The Tribunal accepts the representative’s observations and comments in relation to the delegate’s decision regarding the need to continue to work in the Toowoomba region.
The representative then addressed the issues raised at the hearing. He notes the Tribunal expressed concern regarding the “genuineness” of the employment arrangement and its observation that it appears to be a scam. He submits that the current review before the Tribunal is for a decision to cancel a visa under s.137Q(2) of the Act and this does not concern the genuine nature of the employment. In the representative’s opinion, the genuine nature of the employment was successfully assessed by both the Minister and a RCB that were specified by the Minister, in this case, the Chamber of Commerce and Industry Queensland (CCIQ). The representative notes CCIQ’s website[4] states:
[4] a Regional Certifying Body (RCB) for Queensland, CCIQ provides advice to the Department of Home Affairs (Home Affairs) on RSMS Direct Entry stream employer nomination applications, using local area knowledge to advise the Department in relation to the genuine need for the nominated position and terms and conditions of employment in accordance with certain specified requirements.
As such, the representative submits that the genuineness of the employment engagement has been tested twice by 2 different authorities, one of whom has local area knowledge. It is also relevant, in the representative’s opinion, that CCIQ’s Toowoomba charter is located at 353 Ruthven Street - that is, a 250 m or 3 minute walk from the where the Company was located at 217 Margaret Street - and, hence, it is more than reasonable to accept that CCIQ would have known that both the Company’s business and the nature of Mr Hussain’s employment with the Company was genuine. The representative attached a copy of the Form 1404 RSMS – Regional Certifying Body advice signed by a representative of CCIQ on 6 January 2015. This was required for approval of the Company’s nomination in relation to the position offered to Mr Hussain. As noted above, the Department approved the Company’s nomination on 8 May 2015. The representative requests the Tribunal cease considering irrelevant factors and focus instead on assessing whether Mr Hussain has made a genuine effort to be engaged in employment with the Company.

In conclusion, the representative states that, due to termination of the Company’s business, it was not possible for Mr Hussain to continue his employment for the 2 year required employment period. He observes that the delegate failed to give appropriate weight to this fact, which should have been the primary consideration when considering whether Mr Hussain has made a genuine effort. The representative submits the delegate clearly has failed to follow Departmental procedure which contains specific instructions on circumstances that Mr Hussain faced as, subsequently, the Company’s business closed down.
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]
As a matter of statutory construction, the phrase “the employment” in s.137Q(2)(a)(i) of the Act, in combination with the phrase “that employment” in s.137Q(2)(a)(ii) and s.137Q(2)(b) of the Act, suggests each reference to “employment” in s.137Q(2) of the Act is a reference to the employment to which the relevant employer nomination relates. This interpretation is reflected in the Department’s current Procedural Instructions – Visa Cancellation Regional Sponsored Employment Visa - Genuine Effort:
“In assessing whether the visa holder has made a genuine effort, the factors a delegate may need to consider include:
·the visa holder’s reasons and/or circumstances leading to, the failure to commence work or to complete the two-year employment period (including any family or personal considerations);
·the possibility that the visa holder, in collusion with the employer, did not commence work within the six month period or resigned shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia;
·in the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment and the explanations given by the employer and the visa holder for the termination;
·under policy, periods of more than 12 months may generally be accepted as representing a genuine effort. However, a visa holder can be found to have made a genuine effort if employed under 12 months. Officers must consider the individual merits of each case when determining whether there has been a genuine effort; and,
·any other matter which is relevant to the commencement or cessation of the employment.
The s.137Q cancellation power is unlikely to be used where a visa holder fails to commence employment within the 6 month period or fails to complete the 2-year employment because of the situation beyond the visa holder’s control. Examples include:
·the position was not filled or did not remain viable due to a serious downturn in business activity or
·financial loss, bankruptcy or closure of the business.”
The representative submits that Mr Hussain has made a genuine effort to complete the two-year employment with the Company but that the situation leading to his termination was beyond his control. He submits that, as identified in policy, it is clear the position of ICT Security Specialist ANZSCO 262112 based in Toowoomba did not remain viable following advice from the customer in Toowoomba that it did not wish to proceed with the Company’s services and, ultimately, this led to closure of the business in Toowoomba and, in due course, its deregistration with ASIC.
It became evident during the course of the hearing that there were some concerns about Mr Hussain’s credibility and whether he has made a genuine effort to be engaged by the Company in the employment as an ICT Security Specialist in Toowoomba. By way of summary, although the Tribunal accepts that he entered into the contract of employment dated 11 December 2014 to undertake work as an ICT Security Specialist with the Company in Toowoomba, it is not satisfied that he has made a genuine effort to be engaged in that employment. It also has some concerns regarding the genuineness of the contractual arrangement. Overall, the Tribunal did not find Mr Hussain’s evidence to be consistent, plausible or convincing. The Tribunal’s concerns are discussed below.
First, Mr Hussain was employed by the Company for only one day before he was advised his employment would be terminated. He presented to work on Monday, 11 July 2016 and was told the next day, Tuesday, 12 July 2016, that his employment would be terminated. His termination letter is dated 14 July 2016.
In his letter to the Department dated 1 March 2018 lodged in response to the NOICC, the Company’s ex-director Fakruddin Mohammed states that:
“unfortunately, the ICT security Department of Toowoomba branch had to be shut down due to loss of project s in mid–2016 as result of which Mr Mehamood Hussain’s services were no longer required”.
It is not clear to the Tribunal whether the Company had just one project, or multiple projects, in Toowoomba. Even assuming there was only one project engaging the Company’s services in Toowoomba, it appears that no effort was made to market the Company’s services to other potential information technology customers in the region. No evidence was provided to the Tribunal to the contrary. The fact that Mr Hussain says he was able to apply online before arriving in Australia, thereby secure casual employment with Green Workforce which commenced following his arrival in January 2017 and provide evidence of such employment confirms that there was a demand for at least some ICT services in the Toowoomba region.
This suggests to the Tribunal that the arrangement with the Company may have been to facilitate grant of a visa to Mr Hussain and that the prompt termination of his services following his arrival in Australia was part of the plan.
Second, Mr Hussain has changed his evidence in relation to activities undertaken by him during his first day in the office on 11 July 2016.
In his Statutory Declaration lodged with the Department, Mr Hussain states that he “immediately” went to work on Monday, 11 July 2016 and that his first day “involved in (sic) reviewing a few security policies of their own internal system, but not of the ones we had discussed during our technical interview”. However, inconsistent with this, he told the Tribunal that he and his boss went to Toowoomba to meet with the finance industry customer whose work was the whole basis the Company lodged its nomination with the Department supported by the RCB’s certification.
Mr Hussain acknowledged that he did not disclose this information to the Department. In the Tribunal’s opinion, this inconsistent evidence reflects poorly on his credibility.
Third, Mr Hussain was not able to advise the Tribunal as to the reason why the project in Toowoomba did not proceed.
If, as claimed by Mr Hussain during the course of the hearing, he and his boss visited the office of the customer in Toowoomba on 11 July 2016, it is reasonable to expect that the parties would have discussed a range of topics including the nature of the work proposed to be undertaken by Mr Hussain, how the work might impact current services offered by the customer, the timelines for commencement and completion of work to be undertaken. Yet, Mr Hussain in his evidence to the Tribunal said that he had ‘no idea’ why the customer did not wish to proceed with the project.
Even if he was not provided with any information directly from the Company regarding the reasons for the Toowoomba based customer’s termination of its services, the Tribunal is of the view that he would have been able to glean some information from the 2 customer representatives who he claims he and his boss met with on 11 July 2016. While speculative, the Tribunal notes it would have been open to Mr Hussain to approach the customer direct for an ICT position in-house. In this regard, the Tribunal notes there is no restraint of trade provision in his contract of employment with the Company precluding such an approach. However, this may not have been possible if, for example, the customer had informed the Company at its claimed meeting with Mr Hussain and his boss on 11 July 2016 that, owing to the 18 month delay since the time of the parties’ initial discussions (which prompted the Company to lodge its nomination with the Department on 6 January 2015) it had sourced an alternative ICT security service provider.
The Tribunal finds that Mr Hussain’s claimed ignorance of the reasons for termination of the Toowoomba based customer’s services to be unconvincing and implausible given he claims to have met with 2 representatives of the business the day before the Company informed him the business was not going to use the Company’s ICT security services.
Fourth, Mr Hussain refused to give the Tribunal any information in relation to the identity of the customer in Toowoomba. This would have given some assurance to the Tribunal that the arrangement to nominate Mr Hussain for permanent residence was a genuine.
The Tribunal accepts that the Department and the RCB are required to form an opinion as to whether there is a genuine need for the nominator to employ the nominee as a paid employee to work in the position under the nominator’s direct control: r.5.19(h)(ii)(B) and r.5.19(h)(ii)(F) of the Regulations respectively. However, the Tribunal that is not bound by the findings of the Department or the certification of the RCB in this regard.
As noted above, the Tribunal accepts that there was a contract of employment made between Mr Hussain and the Company. The Company offered him a fixed term engagement for 4 years in the role of ICT Security Specialist based in Toowoomba at the agreed salary of $55,000 per annum plus superannuation. Mr Hussain accepted the offer on 11 December 2014. The Tribunal accepts that consideration for the contract is evident in Mr Hussain resigning his long-term position with Al-Rajhi Bank in Riyadh as an IT Security Consultant and, at considerable personal expense, relocating his family to Australia. He was also paid $390 on termination of the engagement.
Whilst the Tribunal accepts that the contract of employment was valid and that it contains a confidentiality clause precluding Mr Hussain from disclosing confidential information relating to the Company’s business, it does not accept that, in the circumstances of this case, this clause precludes him from advising the Tribunal of the name of the customer, the names of the persons who he claims he and his boss met with in Toowoomba on 11 July 2016, details of the nature of the customer’s business such as the number of employees working with the customer and whether the office in Toowoomba is that organisation’s ICT headquarters. In any event, as the Company has ceased to operate, there is no party who would be able to bring a cause of action in relation to breach of the confidentiality clause in the contract.
The Tribunal noted during the course of the hearing that it could, in the public interest and for confidentiality reasons, make a Direction under s.378(1) of the Act that commercial-in-confidence information referred to in identified paragraphs of its decision and which refer to the customer not be published.
Mr Hussain did not release the name of the Company’s claimed customer in Toowoomba or provide any information in relation to the customer other than it in the financial service business but it is not a bank.
In the circumstances, the Tribunal finds Mr Hussain’s failure to disclose information about the claimed customer casts doubts on his credibility and raises concerns regarding the genuineness of the arrangement that led to the Company lodging its nomination with the Department in the first place.
Fifth, the Tribunal observes that, during the course of the hearing, Mr Hussain confirmed his family remained in Brisbane throughout the 3 weeks following their arrival in July 2016. He had made no attempt to take his wife and his children to see their new home town of Toowoomba and show his 2 eldest children where they might be attending school when the Queensland schools resumed on Monday, 11 July 2016 after the two-week winter holiday break.
Mr Hussain’s evident concern for his family and how he believes they now fit into Australian society as outlined in his Statutory Declaration lodged with the Department in response to its NOICC does not sit comfortably with his failure to take his family to see their new home town of Toowoomba and consider where he and his wife might enrol their children in school.
This suggests to the Tribunal that it may have always been intended that the family would come to Australia only for a 3 week period merely to meet the requirement that Mr Hussain must enter within 6 months of grant of his Subclass 187 visa as required by in cl.187.611 of Schedule 2 to the Regulations and r.2.50AA of the Regulations.
Sixth, the Tribunal has concerns that Mr Hussain failed to obtain employment law advice or contact the Department after receiving notice of the termination of his employment with the Company within just one day of starting his employment with the Company.
Mr Hussain told the Tribunal that getting a 4 year fixed term contract of employment was part of a strategic plan. It meant he would have full-time employment for 4 years for a fixed term. This was attractive because, with his 4 dependents, it would be difficult to survive if he lost his job. However, he admitted that he did not seek employment law advice. The Tribunal notes such advice would have canvassed whether the contract with the Company was, in fact, a fixed term contract with the possibility that he may have been able to seek an order for specific performance or damages for breach of contract.
Furthermore, Mr Hussain told the Tribunal he did not seek advice from the Department regarding consequences following termination of his employment: rather, he just contacted his representative. He justified this to the Tribunal on the basis that there was no condition attached to his Subclass 187 visa that he had to do this. The Tribunal acknowledges that, if the applicant is outside Australia when the visa is granted, the only condition imposed on Subclass 187 visa holders is that their first entry must be made before the date specified by the Minister, that is, within 6 months of grant of the visa: cl.187.611(a) of Schedule 2 to the Regulations and r.2.50AA of the Regulations. His representative did not recommend he contact an employment lawyer.
The Tribunal acknowledges that Mr Hussain told the Tribunal he was mentally blank and had no contingency plan when his employment was terminated. It also acknowledges he has provided a letter from Dr Munza Ashraf dated 22 February 2018 in response to the Department’s NOICC confirming that he has been a patient of the practice since July 2016. Dr Ashraf states that Mr Hussain presented then with unexplained tiredness for which he was investigated and no organic cause was identified. His tiredness was attributed to anxiety and reactive depression that he faced as a consequence of employment loss and failure to find work in his field of expertise in education. Having sought the assistance of one professional, albeit in the medical field, the Tribunal is somewhat surprised that he did not seek further advice, even on recommendation from his medical practitioner or his representative, from a lawyer regarding the appropriateness of seeking damages for early termination of his 4 year fixed term contract of employment or, in the alternative, specific performance of the contract.
In the context of having moved his family from Saudi Arabia to Australia, the Tribunal considers it reasonable that an affected person - who, like Mr Hussain has years of experience working in the commercial world - would reach out for professional advice from appropriately qualified persons, in this case, an employment lawyer or contact the Department to discuss the implications for the family’s ability to remain in Australia. As an educated person he would be aware that he has rights under a contract. After all, it was he who had insisted that the contract be for a fixed term of 4 years. The representative referred the Tribunal to cl. 9 of Mr Hussain’s Statutory Declaration (lodged in response to the NOICC) where he states that, rather than seek legal advice, he went back to Saudi Arabia where he was familiar with the work environment and tried to find work because he was the only breadwinner for the family. The Tribunal notes this is merely one of a number of factors that it has taken into account regarding its assessment of whether Mr Hussain has made a genuine effort to be engaged in the employment the subject of the Company’s nomination lodged with the Department on 5 January 2015.

Seventh, the Tribunal has concerns in relation to Mr Hussain’s explanation for the fact that, on his Passenger Card when arriving in Australia within the 6 months of grant of the Subclass 187 visa, he gave his address as 2/22 Spencer Street, Toowoomba yet he did not take his family to Toowoomba and stay at this address upon their arrival on 8 July 2016. Rather, the family opted to stay in Brisbane.
The Tribunal accepts Mr Hussain’s advice that his brother had arranged for suitable alternative accommodation in Brisbane when a friend of his left for 3 weeks holidays. However, in light of the fact that Mr Hussain and his family had arrived in Australia with a view to him taking up employment in Toowoomba, it appears somewhat unusual that the family should choose to remain in Brisbane. This, too, is merely another factor raising doubts in the mind of the Tribunal regarding the genuineness of the employment arrangement for Mr Hussain to work in Toowoomba with the Company.
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.
For the reasons outlined above, the Tribunal is satisfied that the ground for cancellation in s.137Q(2) of the Act is established. As the power to cancel under s.137Q of the Act is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.
Should the visa be cancelled?
There are no matters specified in the Act or Regulations that must be considered in relation to the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by Mr Hussain and his representative, as well as matters in the Department’s Procedures Advice Manual ‘PAM3: Act - Visa cancellation instructions - Regional sponsored employment visas – Decision not to Cancel’. Policy states that, even in circumstances where the grounds for cancellation exist, there may be factors that should be considered when assessing whether to exercise the discretion to cancel the visa under s.137Q of the Act. The factors listed in policy which can be considered are set out below.
The tribunal observes that whilst it may be guided by policy, is not bound to follow it.[6] In the circumstances of this application, the Tribunal accepts that it is a relevant consideration and has had regard to policy in the context of Mr Hussain’s individual circumstances.
[6] Re Drake and MIEA (No.2), Re (Drake No.2) (1979) 2 ALD 634, Brennan J at p.644
The circumstances leading to the grounds for cancellation
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.
The Tribunal has set out above its views regarding the circumstances leading to the ground for cancellation in this case. While the Tribunal has not made a finding that the employment agreement between Mr Hussain and the Company was a sham arrangement to enable him and his family to obtain permanent residence, it has doubts whether the parties had a genuine intention that Mr Hussain would work for the Company in Toowoomba in the role of ICT Security Specialist ANZSCO 262112 for the required 2 years. As such, the Tribunal does not accept the situation Mr Hussain found himself in was beyond his control. His failure to secure employment law advice following notice of termination of the contract just one day after starting with the Company and with the benefit of a claimed visit to the customer’s office in Toowoomba the day prior to receiving that oral advice raises doubts in the mind of the Tribunal regarding the genuineness of the arrangement.
The Tribunal gives this factor weight in favour of cancelling his visa.
Current and past behaviour of the visa holder to the Department including truthfulness of statements made to officers or in applications under consideration
The delegate considered that there was no evidence Mr Hussain was uncooperative with the Department.
During the course of the hearing, the Tribunal formed the opinion that it did not accept Mr Hussain’s explanation of events leading up to termination of his employment with the Company. As such, the Tribunal considers that Mr Hussain may not have given an accurate account of the arrangement between himself and the Company to the Department in his visa application.
Furthermore, as discussed with Mr Hussain during the course of the hearing, it formed the opinion that he may have provided false or misleading information in his Passenger Card when entering Australia for the first time on 8 July 2016 by providing details of his intended residence at 2/22 Spencer Street, Harristown. Instead, he and his family remained in Brisbane, albeit on his brother’s recommendation because one of his brother’s friends had gone on holidays for 3 weeks. No evidence was provided to the Tribunal to confirm this arrangement. As noted above, this suggests to the Tribunal that Mr Hussain did not intend to take up residence in Toowoomba to start work with the Company.

100. The Tribunal gives this factor some weight in favour of cancelling the visa.
Length of any period of employment with the sponsor including any previous employment with the sponsor whilst the visa holder was on a temporary visa
101. Mr Hussain worked with the Company for only one day before he was informed that his employment would be terminated. He received formal notice of termination 3 days later on 14 July 2016. As noted above, the Tribunal has doubts about the genuineness of the employment arrangement between Mr Hussain and the Company.
102. The Tribunal gives this factor some weight having regard to the very brief period of claimed employment with the Company.
Links to the community including strength of family, social, business or other ties in Australia, strength of ties to regional Australia and continued employment in that area
103. Mr Hussain and his family have remained in Australia since their arrival on 27 January 2017, that is, nearly 3 years. They have continued to live in the Brisbane suburb of West End.
104. In response to the NOICC, the representative provided the Department with evidence of the family’s links to the community as follows:
·enrolment of daughter Alviya at West End State School in Year 6 in 2017 as confirmed by her school report, class photograph and photographs with school friends;
·School Achievement Awards issued to Alviya Hussain;
·enrolment of son Ahmed at West End State School in Year 4 in 2017 as confirmed by his school report;
·letters from son Ahmed Hussain, daughter Alviya Hussain, wife Ms Syeda and brother Mohammed Hussain; and,
·Certificate of Appreciation to Mr Hussain from West End State School for Volunteer Contribution 2017.

No updated information has been provided to the Tribunal apart from Mr Hussain’s oral evidence at the hearing. In light of Ms Syeda’s inability to give evidence at the hearing, the Tribunal was referred to her letter lodged with the Department in response to the NOICC.
105. Based on available evidence, the Tribunal is satisfied that Mr Hussain and his family have strong family and social ties in Brisbane, particularly, to the local West End community where his children have attended school and where his brother lives. These ties are discussed further below in the Tribunal’s consideration of the hardship the applicants would face if the Tribunal affirms the delegate’s decision to cancel their Subclass 187 visas. The Tribunal gives these factors some weight in favour of not cancelling the visa.
106. Mr Hussain told the Tribunal that he discontinued working with Green Workforce in February 2018. In the circumstances, he no longer has any ties with the Toowoomba regional area. The Tribunal gives this factor some weight in favour of cancelling the visa.
Degree of hardship that may be caused to the visa holder and any members of their family unit, especially any obligations under the UN Convention on the Rights of the Child if any child in Australia is affected
107. As noted above, the applicants have lived in Australia for nearly 3 years. During that time, Mr Hussain’s 11-year old son Ahmed and his 14-year old daughter Alviya had been attending school. His wife has stayed home to look after the children.
108. When questioned during the course of the hearing about the hardship that might be caused to Mr Hussain and his family should the Tribunal affirm the decision of the delegate to cancel his visa, Mr Hussain referred the Tribunal to his Statutory Declaration lodged in response to the NOICC in which he states:
·To take up the offer of employment in Australia, he finalised his resignation with the biggest bank in the Middle East, pulled his young kids from their school and packed up their home of almost a decade. He spent over $15,000 to sort this out. This represented a significant part of his savings.
·Following termination of his employment with the Company he was completely mentally shipwrecked - he was completely ashamed as head of the family because he was responsible for, literally, bringing them to the other side of the world;
·With his brother’s support, he sought medical help. Despite encouraging support from his brother, out of desperation, he decided to return to Saudi Arabia immediately with his family to win back his old employment. He needed to leave and go back to the environment that he was familiar with, because of his family.
·Despite desperate attempts, he failed to secure employment either in Saudi Arabia or India. After 6 months of continuous searching, he was able to find employment with Green Workforce. He was very sceptical and mentally unprepared to take another chance but his brother stepped up and met with the company at their office in Toowoomba to ensure that nothing like what had happened would happen again. After arriving in Australia, he began casual work with Green Workforce and took on a few other casual jobs to ensure he was making enough money to support his family.
·When he received the Department’s NOICC, he broke down again. Since January 2017, he has been working incredibly hard to send his children to school and finally settle in Australia. When he read the NOICC he was shattered, even more so than when he was made redundant by the Company because it was not all his fault.
·He had already been suffering from mental stress since July 2016 due to the loss of his employment (with the Company) when he received the NOICC which worsened his condition of heightened anxiety for which he is seeking medical advice from a specialist.
·All he could think about was his children and his wife. He has never seen them this happy. Never have they been this free. They are safe here. His wife is no longer subject to any social and legal restrictions as she was back in India and Saudi Arabia. As permanent residents, they have been truly accepted and worked so hard to integrate and live like the locals, as residents of Australia.
·His 3 children, especially his daughter who is now in her teens, feel privileged to be here. They have, with pride, embraced the Australian culture. The family sees that the rights of women and children are personified here. His daughter can express her views freely, take part in sport and wear which she likes. He hopes his children can grow up to be respectable, independent and law-abiding residents of Australia.

109. During the course of the hearing, Mr Hussain told the Tribunal that he continues to have mental problems arising from the termination of his employment which, subsequently, led to cancellation of his visa. He reiterated comments in his Statutory Declaration that his children have already settled down here and, if their visas are cancelled, it is not just his career but the lives of his wife and children which will be affected: it will be difficult for them to settle down anywhere else. Mr Hussain added that his wife wants to study aged care nursing because that appears a good career in Australia. He explained that she has not done this to date because of her commitments in looking after the couple’s children.
110. In her letter dated 4 March 2018 lodged with the Department in response to the NOICC, Ms Syeda states that the family disposed of assets in India and her husband resigned from his job in Saudi Arabia on the understanding that they had secured a permanent visa in Australia. She states that the family has been struggling to be strong after her husband lost his job here, their savings are exhausted and her husband is now working on a part-time basis to make ends meet. She opines it has been difficult for her husband to adjust to part-time work given his professional expertise in the area of cyber security as it is not commensurate with his skills and, as a result, he is battling with heightened anxiety and seeking medical aid. The couple hope their children have a bright future here, especially their daughter who can go to school on her own bicycle and be part of any extracurricular activities that she likes: this was not possible where they came from, especially for a girl who is now in here teens. As a woman, she feels empowered that she can travel anywhere on her own and feel safe. Ms Syeda confirmed she intends to study aged care when her youngest child goes to school. Further, Ms Syeda observes receipt of the NOICC struck them as a calamity and they felt devastated. Although their children see themselves as Australians, they felt disowned as a result. Their time in Australia has been the happiest time of their lives. The couple do not have the means to provide such a life and education to their children in India. In conclusion, Ms Syeda states cancellation of the visa will have adverse effects on the couple’s children’s lives as they have made friends here, enjoy school and the way of life here: to take that away from them will leave them absolutely dejected. Her husband’s family only includes his father (who has survived multiple heart attacks) and who looks after his disabled son (Mr Hussain’s brother).
111. In her handwritten letter to the Minister (then) 12-year old daughter Alviya states that she has graduated from West End State School and is now studying at Brisbane State High School, one of the best schools in Australia (and, the top-ranked government high school in Queensland).[7] In 2017, she received a Certificate of Achievement from Queensland Premier, the Hon Annastacia Palaszczuk MP, for completing the 2017 Premier’s Reading Challenge. When she grows up she wants to be a Cyber Security Engineer. In Australia, she can take part in many activities she likes such as sport and music and she can also wear clothes of her choice. She could not have done any of that in Saudi Arabia or India. Here, she can go to school on her own. Alviya states she likes riding her bicycle, is learning swimming and loves going to beaches. Her family celebrated Australia Day on 26 January and had a BBQ. The family is going to the Gold Coast to watch the Commonwealth Games (in April 2018). Alviya is hopeful that, in Australia, all her dreams will come true. Being here has made her feel strong and safe: there is no restriction on her for being a girl. She is happy to have parents who always support her and is grateful they brought her to Australia. Alviya feels living and growing up in Australia is the best chance to realise her dreams to the fullest and she wants to grow up to be a successful and independent person.
[7] Mr Hussain’s son Ahmed also provided a handwritten letter. He says his teacher at West End State School once called him a mathematics genius. He is very happy to be in the school because he gets to swim and play sports as well as have a chance to learn music. When he was in India and Saudi Arabia he could not take part in sport or other activities because there were no facilities. Ahmed gets to school on his bicycle. His favourite sports are cricket and touch football. His favourite cricketers are David Warner and Steve Smith: his dream is to play cricket for the Australian national team. Ahmed states that he loves Australia and is very happy studying here and is always excited to take part in sport. He loves the beaches and also the police, because they protect children. He wants to become a very good Australian and make his family and teachers proud of him.
113. Mohammed Hussain states his brother gave up his job in Saudi Arabia only to work and migrate to Australia. He adds there is no reason why he would intentionally or inadvertently breached visa conditions. With 3 young children, his bother has integrated into the Australian culture. He is a man of integrity and discipline who would never go against the law. Cancellation of the family’s visas will cause great distress to their respective families: his brother, who is already suffering from heightened anxiety will be shipwrecked, his brother’s children’s dreams will never come true and his brother’s wife will lose hope.

114. The Tribunal acknowledges that Mr Hussain and his family would experience a degree of hardship if the visas are cancelled. It accepts Mr Hussain family expended considerable financial resources in coming to Australia in July 2016, returning to Saudi Arabia just 3 weeks later and then coming back to Australia in January 2017. It also accepts that Mr Hussain resigned his longstanding position in Saudi Arabia on the basis that his permanent residence Subclass 187 visa had been approved. The Tribunal does not accept that he would be unable to find work in his respective field either in Saudi Arabia or India.
115. Based on evidence provided, the Tribunal accepts that Mr Hussain suffers from anxiety issues which both medical practitioner Dr Ashraf and Clinical Psychologist Dr Worboys attribute as consequences of employment loss and failure to find work in his field of expertise and education. Dr Worboys also notes Mr Hussain feels a sense of heightened anxiety and uncertainty about his immigration issues. The Tribunal is not aware of any evidence to suggest that Mr Hussain would be unable to access necessary health services outside Australia should he be required to do so for health related issues.
116. The Tribunal accepts that his 2 eldest children are currently attending school in Australia and that they have settled into the Australian way of life including being engaged in sports such as bike riding and cricket as well as music and going to the beach. In addition, the Tribunal accepts that Mr Hussain’s youngest child would be due to start primary school in January 2020. The Tribunal also accepts that daughter Alviya is currently enrolled in the Queensland’s most prestigious and highest achieving government state high school: this arises because she happens to live in West End which is included in the catchment area of Brisbane State High School.
117. The Tribunal acknowledges that Article 3 of the Convention on the Rights of the Child (CROC) provides that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. While the Tribunal accepts that Mr Hussain’s children would experience some disruption in leaving Australia, their respective schools and their school friends by relocating to either Saudi Arabia or India as well as starting and settling into new schools and communities there, the Tribunal considers that they would have the support of their parents, they would be part of the Hussain family unit and that this would provide them with emotional and language support to the extent required. Therefore, the Tribunal does not consider such a prospect contravenes Article 3 of the CROC.
118. In relation to Mr Hussain’s wife expression of her interest in undertaking future study in aged care nursing, the Tribunal is not aware of any evidence to suggest that she would not be able to pursue such studies in Saudi Arabia or in India. The Tribunal also acknowledges Mr Hussein’s wife’s claims of hardship regarding human rights and gender equality issues in Saudi Arabia and India. Her comments are echoed by her daughter Alviya who feels she can wear whatever she wants to wear and do whatever she wants to do in Australia.
119. The Tribunal give some weight to consideration of the impact on the disruption to Mr Hussain’s children’s educational development in favour of not cancelling the visa.
Other relevant matters
120. As noted above, policy sets out the factors which can be included for consideration when determining whether to exercise the discretion to cancel an applicant’s visa under s.137Q of the Act. Relevant to the circumstances of this case, the Tribunal considers it also appropriate to note Mr Hussain resigned from his long-standing and secure position with Al-Rajhi Bank in Riyadh and that, prior to the hearing, Mr Hussain was offered 2 permanent roles as an ICT Cyber Security Specialist. He had to turn down the offer of permanent full-time employment with Energy Australia simply because of his uncertain visa status in Australia.
121. The Tribunal considers this to be a highly relevant factor as the Tribunal recognises cyber security has become an emerging issue for government agencies, both Federal and State / Territory agencies including regulatory agencies, as well as businesses across Australia in the recent past whether in the legal sector, accounting or banking finance sector to name but a few which have acknowledged the threat posed by failing to deal proactively with cyber security issues.[8] In addition, the Tribunal notes that Mr Hussain is now 45 years of age and, as observed by him during the course of the hearing, he is too old to apply for a Subclass 189 Skilled Independent visa.
[8] The Tribunal considers both of these factors relevant in its assessment of whether this is an appropriate case in which to exercise its discretion not to cancel Mr Hussain’s visa.
Conclusion
123. Balancing all of the relevant considerations, the Tribunal has placed weight on the evidence supporting the need for Mr Hussain to remain in Australia to afford him the opportunity to take up full-time offers of employment such as that from Energy Australia in the role of ICT Cyber Security Specialist. As noted above, cyber security has increasingly become an emerging issue for government agencies and businesses in Australia in the recent past. In addition, the Tribunal has had regard to the fact that Mr Hussain is now 45 years of age and therefore cannot apply for a Subclass 189 Skilled Independent visa yet he clearly has skills and experience which would be of value to Australia. Further, cancellation of Mr Hussain’s visa and consequence cancellation of his family members would disrupt his children’s schooling at a time which is critical to their educational development. Therefore, overall, the Tribunal considers that the factors in favour of the exercise of discretion to cancel the visa are outweighed by those for not cancelling his visa.
124. Having regard to the findings above and the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
125. 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.
Katie Malyon

Member
Attachment - Extracts from the Migration Act 1958 and the Migration Regulations 1994
s.137Q Cancellation of regional sponsored employment visas

Employment does not commence
(1) The Minister may cancel a regional sponsored employment visa held by a person if:
(a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and
(b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.

Employment terminates within 2 years
(2) The Minister may cancel a regional sponsored employment visa held by a person if:
(a) the Minister is satisfied that:
(i) the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and

(ii) the employment terminated within the period (the required employment period ) of 2 years starting on the day the person commenced that employment; and

(b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.

Regional sponsored employment visa
(3) In this section:
"regional sponsored employment visa" means a visa of a kind that:
(a) is included in a class of visas that has the words "Employer Nomination" in its title; and

(b) is prescribed by the regulations for the purposes of this definition.

…
r.2.50AA Cancellation of regional sponsored employment visas

For section 137Q of the Act, each item in the table sets out:
(a) a kind of visa that is a regional sponsored employment visa; and
(b) the period within which a holder of a visa of that kind must commence the employment referred to in the employer nomination.

Item Visa Period

1 Subclass 119 (Regional Sponsored Migration Scheme) visa 6 months from the date the holder first entered Australia as the holder of the visa

2 Subclass 187 (Regional Sponsored Migration Scheme) visa
If the holder was in Australia on the date of grant of the visa, 6 months from the date of grant of the visa

If the holder was not in Australia on the date of grant of the visa, 6 months from the date the holder first entered Australia as the holder of the visa

3 Subclass 857 (Regional Sponsored Migration Scheme) visa 6 months from the date of grant of the visa
oOOo

[2019] AATA 6596

29 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Item	Visa	Period
1	Subclass 119 (Regional Sponsored Migration Scheme) visa	6 months from the date the holder first entered Australia as the holder of the visa
2	Subclass 187 (Regional Sponsored Migration Scheme) visa	If the holder was in Australia on the date of grant of the visa, 6 months from the date of grant of the visa If the holder was not in Australia on the date of grant of the visa, 6 months from the date the holder first entered Australia as the holder of the visa
3	Subclass 857 (Regional Sponsored Migration Scheme) visa	6 months from the date of grant of the visa