Imran (Migration)

Imran (Migration) [2019] AATA 2758 (20 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kazy Md Subbir Imran
Mrs Sharmin Sultana
Miss Sameeha Imran
CASE NUMBER:  1706849
HOME AFFAIRS REFERENCE(S):           BCC2016/971776
MEMBER:Karen Synon
DATE:20 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 20 June 2019 at 3:00pm
CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – validity of s 375A certificate – DIBP internal process and policy advice – ground for cancellation – non-commencement of employment – genuine effort to commence that employment – consideration of discretion – circumstances beyond applicant's control – Department’s failure to notify of visa grant – awareness of visa status – departing Australia – contact with the Department – reliance in good faith – paper-based application – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 66, 137Q, 137R, 137T, 348, 375A, 438
Migration Regulations 1994 (Cth), r 2.50AA
CASES
MZAFZ v MIBP [2016] FCA 1081
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Immigration and Border Protection on 31 March 2017 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.137Q on the basis that the applicant did not commence employment within 6 months of the grant of the visa on 27 July 2015 in the nominated position of Cook with his sponsor, Leny & Khan Pty Ltd. The applicant provided a copy of the decision record to the Tribunal when lodging the review.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicants appeared before the Tribunal on 9 October 2018 to give evidence and present arguments. The applicant’s wife was present throughout the hearing but did not give evidence. During the hearing the applicant requested a short postponement which was granted.
The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to the first named applicant (‘the applicant’). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the other applicants. The Tribunal raised this issue with the applicant at the hearing and he indicated he understood.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.137Q 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). 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).
The applicant was granted a Subclass 187 visa on 27 July 2015 on the basis of his nomination as a Cook by Leny & Khan Pty Ltd based in Castlemaine Victoria.
The primary decision records that the sponsor provided written advice to the Department of Immigration and Border Protection (‘the department’) on 7 March 2016 that the visa holder did not commence employment and that they had not been able to get in touch with him. In particular the Tribunal notes correspondence sent to the department from the sponsor’s lawyer dated 2 March 2016 and 7 March 2019 that relevantly asserted:
We act for Leny & Khan Pty Ltd the nominator of Kazy Md Subbir Imran…for a Regional Sponsored Migration Scheme (subclass 187) visa.
We are instructed that Mr Imran has failed to report to work following the grant of his visa. Accordingly, the employer considers that Mr Imran has abandoned his employment and therefore has been terminated.
And
We are instructed that Mr Imran simply never reported to work, and that the employer’s attempts to contact him have been unsuccessful…
The Notices
On 2 June 2016 the Department sent the applicant a notice of intention to consider cancellation of his (asserted) Class AN subclass 119 visa under s.137Q(1). The notice stated that the Department had received written advice from Leny & Khan Pty Ltd that he did not commence employment and they had not been able to get in touch with him and that this evidence indicates that the applicant did not commence employment with Leny & Khan Pty Ltd within 6 months from the grant of the visa. The notice set out s.137Q(1) of the Act and invited the applicant to make representations concerning the proposed cancellation. The notice stated that under s.137R of the Act the delegate must consider any representations he makes when considering whether the visa should be cancelled.
On 20 February 2017 the Department sent the applicant a second notice of intention to consider cancellation of his Regional Employer Nomination (Cass RN) subclass 187 visa under s.137Q(1). The notice repeated the information above in the first Notice sent on 2 June 2016.
Response to the Notices
On 29 June 2016, 20 February 2017 and 18 March 2017 submissions were received from the applicant’s migration agent along with a statutory declaration of the applicant dated 18 March 2017. In summary these contend:
·The applicant applied for the Regional Sponsored visa through Mr [A] an Immigration lawyer specified by his employer and was subsequently advised by his employer that all communications regarding the visa and employment must be made through Mr [A]. Mr [A] was the authorised representative and migration agent for the applicant which would cause all communication from the department to be sent to Mr [A] and not the applicant. This is of special significance because the applicant never received notice of the grant of his visa despite it being granted on 27 July 2015. Mr [A] clearly created an obligation that he would take whatever measures were necessary to monitor the application and notify the applicant when the decision was made. It is hard to understand why Mr [A] would tell the applicant on 19 August that no decision had been made on the visa when in fact the visa had been granted weeks before. Even if there was an error made in the notification process it would have been a simple matter for Mr [A] to look on his online ImmiAccount and see that the applicant’s visa had been granted. With no firm timelines for processing RSMS visa applications the applicant had no way to know when to expect a decision and in good faith depended upon the 19 August 2015 undertaking of Mr [A] to contact him when there was a visa decision. The emails provided when the applicant repeatedly asks Mr [A] about the status of his application demonstrates a pattern of good faith and genuine intent to begin employment with the employer. The applicant claims that the employer made no contact with him until after the visa cancellation notice was received and this came as a shock as he was still depending on the employment promised and agreed to by the employer. The applicant made a genuine effort to begin employment.
·The applicant has been in Australia since 2008 and has a daughter born in Australia. He has become incorporated into the Australian community and has a strong motivation to begin employment with the employer in order to meet the terms of his contract and abide by the terms of his visa. While waiting during 2015 and 2016 the applicant has undertaken casual employment in order to provide for his wife and daughter and has always abided by all conditions of all visas. After receiving notification that the employment promised by Leny & Khan was no longer available the applicant undertook an urgent search for a regional appointment to replace the employment that his sponsor did not provide and was offered a position at Coles supermarket in the regional area of Corio. This demonstrates good faith and a genuine intention to work in a regional area. When the applicant and his family visited Bangladesh they all became ill because the food quality is not as good as in Australia and the applicant maintains concern for the health and safety of his family in Bangladesh given the high levels of pollution and adulterated food there. Further the quality and availability of childcare and educational options available to children of Australian permanent residents would not be available in Bangladesh and Australia’s obligations regarding the best interests of the child weigh heavily as a primary consideration toward not cancelling the visa.
·The applicant was a victim of circumstances beyond his control and did not intentionally breach the terms of his visa. The failure by Mr [A] or his employer to notify the applicant of the grant of the visa is at the heart of this case and represents clear and compelling reasons why the applicant’s visa should not be cancelled. The applicant should not be responsible for knowing his visa status when there is no specified processing times available. The applicant had every reason to trust and rely on the professional services and obligations of Mr [A], or, at a minimum, to make a notification when the visa was granted and the employer was ready to begin employment of the applicant.
·In light of the substantial error made by the department in failing to notify the applicant or his employer of the grant of the visa until over 12 months after the visa was granted the department is now pursuing cancellation procedures for not commencing work within six months of the grant of the visa. The applicant’s enquiries to his migration agent Mr [A] are direct evidence of his intention to commence employment within the six month period after the grant of visa.
·It is not reasonable to have expected the applicant to begin work during a six-month period when he was not advised of the grant of the visa. Given the failure to commence employment within six months of grant of the visa was directly and solely related to the failure of the department to notify the applicant or his employer of the visa grant for over 12 months after the grant of the visa, it was submitted that the applicant’s reliance on the department for timely notification of the visa grant was reasonable and should serve as evidence as to why the Minister should use his discretion and not cancel the applicant’s visa. There were clearly circumstances beyond the control of the applicant specifically the failure of the department to notify them of the visa grant.
Also provided was a copy of the employment contract, a letter of offer for employment at a Coles Supermarket in Corio, a statement and a statutory declaration by the applicant (the relevant content of which is covered in the summarised submissions above) and copies of correspondence between the applicant and his former lawyer [Mr A] of [Migration lawyers] (relevant aspects of which are considered below).
Written submissions to the Tribunal
Prior to the hearing a legal submission was made much of which has already been summarised above. However the following new points were made or emphasised:
·     The first time the applicant was informed that his RSMS visa was granted was on 27 July 2015 was when he received the NOICC on 2 June 2016. It was interesting that the department in its decision record does not mention this fact and that they made a gross error only notifying the applicant of the grant of his visa over a year after it had been granted. For the department to not recognise an essential relevant fact that is undisputed and for which direct evidence from a department case officer was provided, is troubling to say the least.
·     At the time the June 2016 submissions were made the applicant and representative acted under the assumption that proper and timely notification of the visa grant had been given by the department to Mr [A] and for some unknown reason Mr [A] neglected to provide timely notification of the visa grant to the applicant. After the June 2016 submission was made it appeared that no further action by the department was pending. However on 2 August 2016 the applicant received a notification from the department that he and his family had been granted RSMS visas on 27 July 2015, over a year earlier. This 2 August 2016 grant notification was the first notification by the department to the applicant that his visa had been granted over a year earlier and represents a major error by the department.
·     While conceding that a lack of timely notification of the grant of the visa does not change the terms of validity of the grant visa, the issue regarding notification is central to the applicant’s case. How could the applicant have been expected to commence work at the employer within six months of the grant of the visa when the employer’s migration agent continued to incorrectly advise the applicant that the visa had not been granted even weeks after it had been granted?
·     The applicant had every reasonable expectation to depend on the professional and timely service of the department to notify him when his visa was granted so that he could begin work with his employer. The department’s erratic and unpredictable visa processing times further contribute to the unpredictability of visa grant dates, leaving vulnerable applicants at the mercy of, and dependent on, the department for proper and timely notification of visa grants. Indeed it is not unusual for RSMS visa processing times to stretch to 2 years or more, leaving applicants waiting month after month for any word from the department. Enquiries by applicants to the department are routinely ignored with no response or are responded to with cut-and-paste responses that essentially say the visa is currently processing and the department will advise them if and when any action is needed. No status updates or expected completion times for processing are provided by the department.
·     Clearly there was a serious error made by the department in this case given the delay in notification was over 12 months.
·     The applicant had no legal obligation to begin work for the employer until the visa was granted and by the employer’s own dictate the applicant was to seek migration advice regarding the start date of his visa only from the migration agent the employer selected, Mr [A]. Mr [A] and the employer had a responsibility to advise the applicant when his employment was to begin. There is no evidence that Mr [A] or the employer made any notification to the applicant on or around the grant date of the visa or even within the first six months after the visa was granted. The notification by the employer to the department that they had not been able to “get in touch” with the applicant was made on 7 March 2016, over seven months after the visa was granted.
·     The applicant did not commence employment within six months of the visa grant because he did not know that the visa had been granted on 27 July 2015 until he received the first NOICC letter on 2 June 2016, almost a year later.
·     As demonstrated in the emails provided the applicant regularly questioned Mr [A] as to whether his visa was granted and these demonstrate that the applicant was making a specific, substantial effort to learn when the visa would be granted so he could begin work for the employer.
·     The department’s Policy and Procedures Manual (PAM3) highlights that “as a general rule, a visa should not be cancelled if the circumstances in which the grant cancellation arose were beyond the control of the visa holder”. In this case there were factors beyond the applicant’s control namely: the department’s error in never notifying Mr [A], the employer or the applicant of the visa grant until almost a year after the visa had been granted; neither Mr [A] or the employer, the only two parties able to communicate with the department, never advised the applicant that the visa had been granted; and the visa application was a paper application (as required at the time) which meant there was no online system where the applicant could independently determine the status of his pending visa application.
·     The applicant has now lived in Australia for over 10 years and built a life in Australia with his wife and child and become fully integrated into the Australian community. The applicant’s wife suffers from [Medical Condition 1] and had to have [surgery] in [Singapore]. [As the] applicant’s four-year-old daughter also [has the same medical condition], regular medical monitoring is required for both the applicant’s wife and his daughter. The applicant’s wife is also suffering [Medical Condition 2] related to the unpredictability of the visa cancellation situation and the department’s admitted failure to notify the applicant of the visa grant led to the visa cancellation and a resulting decline in the mental health of the applicant’s wife. The overall uncertainly the applicant’s family faces involves other significant quality-of-life issues including that the applicant was not able to attend his father’s funeral in 2017. The applicant is in the middle of constructing a home with money inherited from his father and if the visa remains cancelled he will lose the savings he has invested in this house before the house construction is complete. The financial consequences of the department’s error compound hardships already created.
Also provided was: a further statement from the applicant (again the relevant content of which is covered elsewhere in this decision); a medical letter confirming the applicant’s wife surgery in Singapore in [year] when she was aged [age]; a letter dated 3 October 2018 signed by an [associate professor] from [Medical Centre 1] in Melbourne regarding the applicant’s wife’s health condition and confirming a referral for the applicant’s daughter for a [consultation]; a letter from [Medical Centre 2] dated 9 August 2018 confirming the applicant’s wife [has specified medical condition], that her [diagnosis] developed at age [age] and advising the monitoring of their daughter; and a letter from a psychologist who is treating the applicant’s wife for her [Medical Condition 2].
Failure to notify of the visa grant
Correspondence on the department file dated 20 August 2016 relevantly states:
The 187 visa grant notification letter, that was sent to [the applicant] on 2 August 2016, was not a re-notification. Department records indicate that the 187 visa grant notification letter was not generated by our system at the time the visas were granted to [the applicant] and his family on 27 July 2015.
In this respect the Tribunal notes s.66 of the Act and particularly s.66(4) states that failure to give notification of a decision (in this case the grant of the visa) does not affect the validity of the decision:
66 Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c) unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.[1]
(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
The hearing
[1] Tribunal’s emphasis.

At the hearing the Tribunal discussed with the applicant the concerns raised by the evidence before it. It explained the provisions of s.137Q, providing grounds for cancellation in certain circumstances. It explained that the Tribunal does not have jurisdiction in relation to the secondary applicants’ visa cancellation as these are consequential. It also advised that there is a s.375A certificate on the Department's file.
During the hearing the applicant explained that he came to Australia on 12 April 2008 on a TU 573 student visa. He enrolled to do a Bachelor of Business in Accounting but could not commence it because he did not have the required IELTS result so withdrew from this course. He then completed a Certificate III and Certificate IV in Commercial Cookery and a Diploma and Advanced Diploma of Hospitality Management. He never had a student visa cancelled and completed his study in 2012. While studying he worked as a cook at the Blue Train at Southgate for 2 to 2 ½ years. He started there in 2008 and finished in 2010. He also worked at a Coles supermarket on and off between 2010 and 2016. His next employment as a cook was in Nhulunbuy in the Northern Territory where he worked at a resort called the Walkabout Lodge. He commenced there in approximately 2011 and worked for a few months. He left because although they said they were happy to sponsor him they did not and told him they did not realise the process of sponsoring someone. In 2012 he went to work in Coonawarra at a BP service station with a road side café. His wife went to Coonawarra with him. He left there after a few months because they were supposed to sponsor him for a 187 visa but withdrew the offer and instead offered him a 457 visa for 4 years. After this he went back to work as a customer service assistant at Coles Ardeer store. He was granted a 485 visa on 31 July 2013 which was valid until 31 January 2015. He worked part time for a few months as a cook at a café in Yarraville. He then worked at the Tuckerbox diner in Gundegai, New South Wales for 4 or 5 months in 2013/2014. He left because his wife, who was in Melbourne, was pregnant. Also they told him they would sponsor him on a 187 visa but did not; only offering him a 457 visa.
Asked about the offer of employment at Coles in Corio the applicant said when he realised after receiving the cancellation letter what was happening he asked his representative what to do, and in the meantime he had found a regional job opportunity as a Duty Manager at Coles Corio. Because this was some time ago the job is no longer on offer. The applicant is now working at the Mercy Hospital in Werribee as an administrative officer. He staffs the reception and provides clerical and administrative assistance. He commenced this position in 2017 and works on a casual basis approximately 24 hours a week. He now has unlimited work rights but has been unable to find full-time work. His wife also works part-time at Coles in Ardeer and they support themselves with their two part-time jobs.
The applicant has no family in Australia other than his wife. His family lives in Bangladesh although his mother was in Australia as a visitor at the time of the hearing. His father has passed away and he has one married brother living in Pakistan. His wife’s mother, father and two sisters and brother live in Bangladesh. The applicant has a cousin of his dad living in Sydney.
He saw the job with Leny & Khan advertised on a website called bendigo.news.com.au in March 2014. At the time he was looking at all the regional newspapers. It was for the position of Cook at the Albion Hotel at Castlemaine. He applied via email and after a few days was called for an interview. He was interviewed by Leny who manages everything but the owner is recorded on the paperwork as Harjot Kaur. She was also at the interview. The interview was in April 2014 in the restaurant. As the advertisement said they were happy to sponsor someone, he asked them if they would sponsor him on a 187 visa and they said yes, the offer is still available. He did a one-day trial but they said they had lots of other people to interview and would contact him if he was successful. After a few weeks they called him on his mobile (he always kept the same mobile number) and told him he was successful. They said they would hire someone to do the legal part of the paperwork. They were undergoing renovations which they expected to take 4 to 5 months and in the meantime he was holding a 485 visa. They used “Aussie” migration who lodged the nomination which was first refused. So they withdrew his 187 application and then applied for another 187 nomination. This was refused again and his 187 visa application was also refused in 2014. For the third attempt they hired a lawyer [Mr A], from [Migration lawyers], to lodge the application. They organised a meeting in 2015 in his Melbourne office and the lawyer asked him and the employer questions and told the employer that once the nomination was done he would notify the employer and the employer would let him know.
The applicant was very stressed at this time because his 485 expired on 31 January 2015. He kept calling his employer and went to Castlemaine. One time he waited until midnight and Leny was angry and told him not to worry and if he had any queries to go to see the lawyer [Mr A]. He had believed in them but, by this time, had lost his option to find someone else to sponsor him.
The Tribunal asked the applicant’s representative about his assertion in the submission dated 18 March 2017 to the Department that it had never notified the applicant or his employer that the visa had been granted and asked how he knew it had not notified the employer. The applicant’s representative conceded this was an assumption.
The Tribunal explained that one of the major issues that weighed against the applicant in the department’s cancellation decision was the fact that he appeared to have been aware that he had been granted permanent residency when he contacted the department about an application for citizenship, applied for citizenship and because he travelled overseas without a bridging visa, all of which strongly suggests he was aware that he held a permanent visa. In particular the department noted in its decision “there appears to be no reason why the visa holder would depart Australia if he did not know he held permanent residency and if he was holding a bridging visa which did not allow him to travel”. The Tribunal invited the applicant to address this. He responded that he left Australia in October 2015 without a visa because his father was very sick and he was emotionally involved. He said he went to the department a week before he departed, told them his dad was very sick, showed his passport and asked if he could travel to Bangladesh. He was told he could go but was not told he had permanent residency.
In relation to the issue raised in the decision about why, given he had previously had no problems telephoning the department to enquire about the progress of his 187 visa application as he had done so on both 19 August 2013 and 21 January 2014, the applicant said it was because he had been given a clear direction that he should go only to [Mr A] to enquire about any progress and he did not think they would like it if he made enquiries directly to the department.
In relation to his call to the Sydney service centre on 31 August 2015, after he been granted permanent residency, about his eligibility for Australian citizenship, the applicant said he was thinking that his friends had come to Australia after him and had already been granted their citizenship and he wanted to know what was happening with him. As there had been a lot of miscommunication and misunderstanding before, he wanted to understand the process. The applicant confirmed that on none of those occasions, when he rang the Department to enquire about the citizenship process, after he had been granted the 187 visa, on 31 August 2015, 11 November 2015 and 5 January 2016, was told he had been granted permanent residency. He was only told about the process of citizenship at that time and he called three times because he did not understand exactly what was happening during what he assumed was a gap in his visa between when he believed his 485 visa ceased on 31 January 2015 and when the department records it as having ceased on 20 February 2015 and whether it would treat this period as him being without a visa. He said he applied for citizenship on 27 July 2016 after he received the proposed cancellation letter. It was only at that time that he realised that he had been issued with a permanent visa. At no stage before he received the Notice of Proposed Cancellation (NOICC) letter did he have any understanding that he had been granted permanent residency.
The Tribunal advised that since he was not disputing that he never started work at Leny & Khan Pty Ltd in the 6-month period after he was granted the visa, the Tribunal must proceed to consider if the visa should be cancelled.
The Tribunal then took evidence regarding the consideration of discretion that it might undertake in the event that it finds there is a ground for cancellation. The applicant submitted that it was not fair to cancel his visa after all his efforts to stay in the country. He has never broken any law and is law-abiding. He has never breached any visa conditions; this happened because he did not know that he had been granted the visa and, in the past, he always fulfilled the requirements of any visa he was holding. He made a genuine effort to qualify for permanent residency including travelling to Western Australia and the Northern Territory for work. His daughter was born here and will commence kindergarten next year. His family’s future depends on his visa not being cancelled. The applicant believes there was a communication breakdown and he never intended to breach any condition of his visa. His wife has a critical physical condition and her life will be impacted. When he took his daughter back to Bangladesh she became very ill and he does not think she can live there. The applicant wanted to go to Bangladesh to see his father on his deathbed in December 2017 but could not due to his visa cancellation. He has sacrificed a lot to stay in this country. His father died in December 2017. The applicant lives in Wyndham Vale and always rented but in 2015 they bought land in Wyndham Vale which they are building on. He begged the Tribunal not to ruin his life or his daughter’s life and said they will not have a place to live in Bangladesh and his life will be ruined. Invited to do so the applicant’s wife declined to give evidence.
The representative submitted that the decision will come down to the Tribunal’s discretion as it is not in contention that the applicant did not commence work within six months after being granted the visa. He highlighted the multiple attempts the applicant had made all over Australia to find a sponsor in a regional area and noted that the applicant had no reason to sabotage his employment and everything to lose. The question of when his former lawyer found out the applicant had been granted the visa is an interesting question and will likely be explored at OMARA[2] as this lawyer had a positive obligation to advise the applicant of the visa grant as the employer had advised him to do. The applicant did not ask the department about the visa grant because he did not want to disturb the chain of communication. There was a gross error made by the department in not notifying the applicant of the visa grant and this was not rectified until a year later yet this was not even mentioned in the decision record.
[2] Office of the Migration Agents Registration Authority.
The representative explained the applicant’s concern about the gap in his 485 visa validity. The department asserted (in an email sent to the applicant on 19 February 2015 and provided to the Tribunal during the hearing)[3] that his 485 visa would expire on 20 February 2015 when in fact it expired on 31 January 2015 and the applicant’s telephone calls to the department were to try to resolve the issue of how it would deal with that gap should he apply for citizenship because if there was a gap then the four-year clock on residency for citizenship would restart. The representative also asserted that had the applicant asked about his 187 visa, as the department inferred, it would have been contained in the records of the calls and in the decision record.
375A certificate
[3] At tribunal folio 37.
The department file contains a Certificate issued under s.375A which purports to cover department folio numbers 1-2, 50-52, 68 and 107-108. The Certificate dated 10 April 2017 states that disclosure, other than to the Administrative Appeals Tribunal, would be contrary to the public interest because of ”DIBP internal process” and “DIBP internal process and policy advise”. The Federal Court decision of MZAFZ v MIBP [2016] FCA 1081, Beach J, VID 461 of 2016, considered a s.438 certificate with similar wording. In light of this decision, the Tribunal finds that the certificate is not valid, as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal has not taken account of information in these folios. The Tribunal provided the applicant with a copy of this certificate. Invited to comment the applicant asked a question of clarification and then, after consulting with his representative, declined to comment further.
Does the ground for cancellation exist - employment not commenced
Under s.137Q(1) the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the Regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in r.2.50AA.
The employment referred to in the related employer nomination is a position as a Cook in the business operated by LENY & KHAN PTY LTD, in Castlemaine, Victoria.
The prescribed period, for a Subclass 187 (Regional Sponsored Migration Scheme) visa is defined in r.2.50AA as “six months from the date of the grant of the visa”. As noted above the failure of the department to notify the applicant of the grant of the visa does not affect the validity of the decision or therefore the commencement of the conditions attached to it including the condition to commence the relevant employment within 6 months.
In this case it is not disputed that the applicant did not commence employment in his nominated occupation of Cook for LENY & KHAN PTY LTD based in Castlemaine Victoria. Further the Tribunal, based on the evidence before it, is not satisfied that the applicant made a genuine effort to commence that employment within that period although notes that this arose due to the fact that the applicant was never advised of his visa grant; an issue that is explored more fully in the following paragraphs.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.137Q(1) exists. As the power to cancel under s.137Q 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 the applicant, and matters in the Department’s Procedures Advice Manual ‘PAM3: Act - visa cancellation instructions - Regional sponsored employment visas’.
In turning its mind to this discretion not to cancel the visa, the Tribunal has carefully considered all the information before it in relation to the circumstances in which the ground for cancellation arose. In doing so it is mindful of the department’s policy guidelines which indicate that as a general rule, a visa should not be cancelled when the circumstances in which the cancellation arose were beyond the applicant’s control. In this case it is not disputed by the department that it failed to advise the applicant that he had been granted a 187 visa on 27 July 2015 and only advised him of the visa grant on 2 August 2016 over 12 months later. Indeed this notification was only made after the department had already sent the applicant a NOICC letter dated 2 June 2016.[4] This is clearly stated in correspondence sent to the applicant’s current representative (a copy of which was provided to the Tribunal) that “department records indicate that the 187 visa grant notification letter was not generated by our system at the time the visa was granted to the applicant and his family on 27 July 2015”. The Tribunal notes consideration on the department file at folios 80 to 83 (which are not subject to any Certificate) as to whether it should proceed with the cancellation given this notification omission. It appears that the decision of the department to progress to a cancellation relied heavily on the fact that it considers the onus to be on the applicant to find out about his visa status and that he had made a number of telephone calls to the department regarding his visa status and had applied for citizenship. The Tribunal explored these issues fully during the hearing and these issues were also the subject of written submissions.
[4] This letter was subsequently replaced with one dated 20 February 2017 when the first letter was found to be incorrect insofar as it purports to give notice of a proposed cancellation the applicant’s Class AN 119 visa.
Therefore, while cognisant that the Tribunal is not reviewing the department’s decision but is conducting a de novo decision, it nonetheless sees value in considering the various assumptions and assertions on which the department made its decision. In arriving at its own decision in determining whether the breach which occurred was beyond the applicant’s control, the Tribunal has therefore had regard to the factors raised in the primary decision as follows:
There appears to be no reason why the visa holder would depart Australia if he did not know he had permanent residency and if he was holding a bridging visa which did not allow him to travel…[t]herefore this information seems to indicate that the visa holder knew he been granted the RSMS Direct Entry 187 visa.
The applicant explained at the hearing that he was emotionally distressed at this time as his father was extremely ill (his father died in December 2017). He attended an immigration office, provided his passport and asked if he could travel. He was told yes. The applicant claims that he was not advised, during this visit, that he was the holder of a permanent residency visa. The Tribunal found this evidence to be sincere.
More information held by the department suggests the visa holder had a history of contacting the department regarding previous applications and progress of the application before the department. On 4 December 2014, the visa holder had submitted a previous application for an RSMS Direct entry (RN 187) visa, which was refused on 23 January 2015 due to a nomination not being approved. Given this prior behaviour, there is no valid reason why the visa holder would not have followed up on his subsequent Permanent Resident’s RSMS Direct Entry (RN 187) visa application. This is especially the case, given that the visa holder had previously done so for all other applications even when he had a Migration Agent Representing him. Department systems show the following interactions with the visa holder:
·19 August 2013 - the visa holder called the Sydney Service Centre information on 187 application
·21 January 2014 - the visa holder contacted Melbourne Service Centre regarding a change of address for…
·18 February 2014 - the visa holder again called regarding the Change of address form
·31 August 2015 - the visa holder called Sydney Service Centre regarding his family’s eligibility for Citizenship
·11 November 2015 - visa holder again called the Sydney Service Centre regarding Citizenship eligibility
·05 January 2016 - the visa holder called the Sydney Service Centre to check for a third time if he was eligible to apply for Citizenship

The applicant provided a consistent explanation for his changed approach to contacting the department about the progress of his visa application. As noted by the department the applicant had previously been nominated for a 187 visa by Leny & Khan Pty Ltd and this had been refused. In fact it had been refused twice. On the first two occasions both the employer and the applicant were represented by the migration agency Aussie Migration and Education Consultants. However after the first two nominations were refused the sponsor decided to engage a migration lawyer for the third attempt and engaged [Mr A] of [Migration lawyers]. The applicant notes that the applicant provided to the department copies of correspondence which Mr [A] sent the applicant clearly directing him to only communicate with him regarding his visa status.[5] One such email is dated 8 July 2015 where the applicant seeks advice from Mr [A] as to whether there is an update regarding his visa. Mr [A] responded that he would let him know if there is anything to report. This was actually after the visa had been granted. In earlier correspondence dated 29 January 2015 Mr [A] relevantly wrote “it is unnecessary to contact me several times a day unless you have important information to convey – the fact that your visa is expiring shortly or that you are worried that the application is problematic, are matters of which I am already aware, and do not take lightly. Bear in mind that each time you contact me it costs your employer, over $40 at a minimum, you are making it difficult for me to keep his costs down…[p]lease allow me to do my job”. The fact that Mr [A] was so emphatic about the applicant only contacting him when necessary and that he would communicate information about his visa status meant the applicant was reticent to “break the chain of communication” by contacting the department directly after the matter had been put into Mr [A]’s hands. The Tribunal found this explanation to be satisfactory, especially when viewed together with the correspondence between Mr [A] and the applicant.
[5] At Department folios 19 to 25.
The Tribunal raised with the applicant the instances when he had contacted the department about his citizenship. Again the Tribunal was satisfied with his explanation. The applicant said that he phoned the department on 31 August 2015, 11 November 2015 and 5 January 2016 to understand the citizenship process and particularly because he was concerned about his eligibility for citizenship, should his permanent residency be granted, given that there appeared to be a gap in his visa history during the period from 31 January 2015 to 20 February 2015. The applicant gave the Tribunal a copy of correspondence dated 19 February 2015 provided to him from the department via Mr [A] which suggests that the applicant’s 485 visa would expire on 20 February 2015 and, at that time, a Bridging Visa A would be granted. However the applicant maintained concerns because his understanding (which movement records suggest was correct) was that his 485 visa would expire on 31 January 2015. The applicant was concerned about a gap if his visa expired on 31 January 2015 and he was not issued with a bridging visa until the date the department advised which was 20 February 2015. In particular he was concerned that his four-year continuous residency status would be jeopardised. The applicant maintains that at no time during any of these three telephone conversations was he advised that he had been granted permanent residency and the representative submitted that, had there been a record that he had been advised of this, it would certainly have been recorded in the primary decision.
On 27 July 2016 the visa holder lodged an application for Conferral of Citizenship – General Eligibility Web which is still pending an outcome.
The applicant applied for Conferral of Citizenship on 27 July 2016 after he was sent the first NOICC dated 2 June 2016 and his evidence, which the Tribunal accepts, is that he only became aware that he been granted a permanent visa when he received this correspondence.
Based on the history above with the department it is evident the visa holder had no issue with contacting the Service Centre for updates on the progress of his application. The visa holder was represented by Migration Agent for his RN 187 visa application which was refused yet the visa holder made enquiries himself about the progress of the application. The onus is on a non-citizen to appraise themselves of their visa status at any particular time.
As noted above the Tribunal accepts that a non-citizen does maintain responsibility for ensuring they understand any visa granted and the conditions attached to this. However, in this case, the department’s error in failing to notify the applicant, his lawyer or, it appears, his sponsor, of the visa grant until over 12 months after it had been granted, was an error of such a magnitude that it was unreasonable for the applicant to have known he had been granted a visa. As pointed out in his representative’s submission there are no firm time guidelines for processing RSMS applications and some applications can take 2 years or more and, as instructed, the applicant relied in good faith that Mr [A] would notify him if and when the visa was granted. In these circumstances the Tribunal considers it unreasonable to expect the applicant to commence employment within 6 months on a visa he did not know had been grated until 12 months later. He could not start work during a period in which he had no knowledge that his visa had been granted. For the reasons detailed above the applicant had confined his enquires about the progress of his 187 visa to Mr [A] as instructed. Further, as this was a paper-based application, the applicant had no access to any electronic record of its progress.
In the circumstances of this case the Tribunal has determined to exercise its discretion not to cancel the visa on the basis that the applicant did not commence employment within a period of 6 months due to circumstances outside of his control, namely the department’s failure to notify him or his lawyer of the visa grant. In doing so the Tribunal also notes the significant health issues faced by the applicant’s wife and potentially their daughter and also notes the applicant’s efforts to find regional employment which included him seeking out work and living in areas as disparate as the Northern Territory, Western Australia and New South Wales. It finds that these efforts suggest a person who was doggedly determined to secure permanent residency in Australia. As such the Tribunal accepts the representations made by the applicant’s lawyer that the applicant had everything to gain and nothing to lose by commencing employment for Leny & Khan Pty Ltd as soon as he knew he was able to do so.
In the circumstances of this case, the Tribunal is of the view that the circumstances in which the ground for cancellation arose were beyond the applicant’s control and that the degree of hardship would be such that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Karen Synon

Member

[2019] AATA 2758

20 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Reliance

Natural Justice

Jurisdiction

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