Islam (Migration)

Islam (Migration) [2020] AATA 5993 (24 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Jahirul Islam
CASE NUMBER:  1935718
HOME AFFAIRS REFERENCE(S):          BCC2019/2759367
MEMBER:Mark O'Loughlin
DATE:24 November 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 24 November 2020 at 2:34pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled))– breached condition 8107– employment was terminated – misconduct –decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, cl 457.223
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 December 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1) (b) of the Act on the basis that the applicant had breached condition 8307(3)(b) attached to his visa. 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 applicant appeared before the Tribunal on 29 September 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
In making its decision the Tribunal has relied on the following documents that were provided by the applicant;
a.A copy of the delegate’s decision of 13 December 2019 (dated 13 November 2019 in an apparent typographical error);
b.A statutory declaration executed by the applicant on 28 September 2020;
c.A copy of a letter from HMS Management Pty Limited dated 3 March 2019 addressed to the applicant and headed “Proposed Summary Termination of your Employment for Serious Misconduct”.
The Tribunal has not relied on any other documents in making its decision in this matter.
Does the ground for cancellation exist?
s.116(1)(b) - non-compliance with conditions
A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. Condition 8107 relevantly provides;
“(3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):
…
(b) if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days;
In his statutory declaration of 28 September 2020, the applicant stated that he was granted a subclass 457 visa on 6 January 2017 and that that visa was subject to condition 8107.
This is consistent with the delegate’s decision which states that the applicant was granted a subclass 457 visa on 6 January 2017 that was cancelled by the delegate’s decision of 13 December 2019.
The applicant agreed that during the time that he held that 457 visa his employment ceased on about 8 May 2019 and had not worked since then.
The Tribunal accepts the applicant’s evidence that he did not work between the 8 May 2019 and 13 December 2019 when the delegate cancelled his visa.
The Tribunal observes that a period of 60 consecutive days from 8 May had elapsed by the end of 9 July 2020.
The Tribunal further finds that visa condition 8107 attached to the applicant’s Subclass 457 visa until 13 December 2019.
The Tribunal therefore finds that the applicant did not comply with subclause 3 (b) of condition 8107 from 10 July 2020 until the cancellation of his visa on 13 December 2020, a period of about 5 months.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) (b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The applicant gave evidence that he came to Australia in 2007 to study an Advanced Diploma in Accounting and started working with the sponsor, HMS Management Pty Ltd at a hotel that they operate which is called Maloney’s.
When the applicant started there, he was restricted to working 40 hours per fortnight during term time because of the conditions on his Student visa.
His evidence, which the Tribunal accepts, was that he was granted a subclass 457 visa on 6 January 2017 after which he started to work 38 to 42 hours per week.
He said that in the time between starting work there and being granted his subclass 457 visa, he had moved from working as a “glassy” to barman, gaming attendant, gaming attendant, bar supervisor, and venue duty manager.
It was in this position is venue duty manager that he was nominated.
At paragraph 13 of the applicant’s statutory declaration he states that the company also indicated that they would sponsor him for a permanent visa after 2 years.
The applicant gave evidence that he was generally doing night shifts from 11 PM to 9 AM and that he would work most Friday and Saturday nights and 3 other nights.
He said that over the time he worked full-time was paid an annual salary which started at $56,000 and by the time his visa was cancelled he was being paid $59,000 a year.
The applicant gave evidence that the company owned 5 venues in the Sydney area and that he worked at all of them.
He said that he worked there for about 2 years and 4 months full-time.
The applicant said both in his statutory declaration and his evidence that because he understood he been promised sponsorship for permanent residency he worked extra, unpaid hours and worked unpopular shifts.
The applicant agreed in evidence that his statutory declaration suggests 3 main problems with the work. The first was the failure of the employer to sponsor the applicant for permanent residence, the second was a deterioration in the applicant’s health and the third was his request to be moved to the day shift.
The first thing that concerned him was that despite his request the company had not responded to his request for sponsorship for a permanent resident visa.
He said that due to his disappointment he decided to resign from the position as he wished to work for someone who would sponsor him for a permanent resident visa.
The applicant said that there were some changes in his shifts but that his employer began to manifest dissatisfaction and would criticise him for small mistakes. They made a change to his shifts but would change them with the last-minute.
He said that this began to have a mental impact on him, and he noticed some spots around his mouth in about October 2018.
The applicant provided a copy of a letter from Punnoose Sam, a homeopathic practitioner who says that he is treating the applicant for vitiligo, and that the applicant’s condition could be corrected by adequate exposure to “safe sun UV rays” and vitamin D and E.
The Tribunal does not rely on the opinion of a homeopathic practitioner and notes that the letter, although it is described as a “letter for work” is undated. However, the Tribunal accepts that the applicant may have believed that it was desirable for him to expose himself to sunlight.
There is no evidence that moving to dayshift would achieve that or help the applicant’s apparent medical condition and this is not suggested by the homeopathic practitioner.
The Tribunal does not find that the applicant’s night shifts caused or contributed to a deterioration in his health.
The Tribunal does accept that the applicant sought to move to dayshift and that this may have been prompted by a belief that he held about his health, whether or not that belief was justified.
The applicant gave evidence that after he asked to be moved to the dayshift his employer started to find fault with his work. He said that he was blamed for other people’s errors but that his employer did not have any evidence that the mistakes that had been made were his mistakes.
In the applicant’s statutory declaration from about paragraph 21 and following he said that he believes that his employer was unhappy and that his immediate supervisors sought mistakes in his work.
The applicant said that the mistakes were minor mistakes made not by him by staff under his supervision and it was not reasonable for his employer to expect him to monitor every single sale.
The applicant gave evidence that he was blamed for other people’s errors.
In his declaration at paragraph 27 he said that he decided to resign from the position. This was discussed in evidence in the applicant initially said that he was forced to resign when his company told him he could not work there any longer.
On being further questioned he said that in fact he was fired. He said that his employer told him he could not continue working for them.
He said he was paid for his accrued holidays and was given 2 weeks’ pay in lieu of notice.
The applicant gave evidence that he had received an email from his employer about the termination of his employment although he had not provided that correspondence to the Tribunal.
After the hearing the applicant sent the Tribunal a copy of a letter from HMS Management Pty Ltd dated 3^rd of May 2019. The letter is addressed to the applicant and sets out 4 separate transactions that were observed to have been conducted by the applicant on 26 April 2019 that the company alleges were improperly recorded. There is also an irregularity in the waste record for that evening.
There was a further transaction on 1 May 2019 in which money was apparently taken from a customer but not rung up and the items sold were apparently described in the waste record as having been broken.
The letter states that the incidents are verified by CCTV and states that the company proposes to terminate the applicant’s employment immediately.
Company cites a clause in the applicant’s employment contract indicating that “theft, removal or damage of company property will result in immediate dismissal.”
Although not explicitly stated it is clear that the employer says that the applicant has breached that term and further that there is evidence in support of the allegations.
This is not consistent with the applicant’s evidence that the mistakes were made by other employees and that his employer had no evidence of wrongdoing by him.
The applicant also gave evidence that he was hoping to secure a further nomination from another company that was proposing to open a business in March 2020.
He said that he had been to an interview in September 2019 after he found out from a colleague that there is a possible opening.
He said that he believed that the job would probably start in February 2020 but that ultimately it was thwarted by the COVID 19 pandemic.
The applicant said that he had spent about 4 months leading up to September 29 looking for other work but that that was the only opportunity he got.
In relation to the applicant’s purpose in travelling to and staying in Australia he said that he would like to stay because he has been here for 12 years and he is more attached to this community and has more experience in the hospitality industry in this country.
The Tribunal notes the applicant’s preference to stay in Australia and finds that this is not a compelling need as contemplated by the departmental guidelines.
The Tribunal observes that the applicant was in breach of his visa conditions for a period of about 5 months which the Tribunal finds is a fairly substantial breach. The Tribunal notes the applicant’s evidence about a possible other opportunity but finds that this opportunity was speculative. The Tribunal finds that there is no reason to treat this breach is insignificant or other than substantial.
On that basis the Tribunal finds that the extent of the applicant’s compliance with visa conditions is insufficient to weigh against the exercise of discretion to cancel the applicant’s visa.
The applicant was asked about hardship that may arise from visa cancellation. He said that he is having difficulty paying rent and living expenses and that he has to borrow money to do so.
He says that he is no longer part of the community back home but is unsure that he would be able to make a life for himself there. He said that his skills largely relate to alcohol and gambling which are not features of society back in his home.
The applicant agreed that he has qualifications in hairdressing and in business and that before he was granted the subclass 457 visa he was intending to return to Bangladesh to open a business.
The Tribunal accepts the applicant’s evidence that since he was granted the subclass 457 visa in January 2017 he had expected to stay in Australia.
The Tribunal finds that the applicant is likely to suffer some financial hardship if his visa is cancelled and further that he will suffer some emotional hardship if he has to return as he would prefer to stay in Australia.
The applicant submitted that he will suffer hardship as he will be restricted in making further applications for Australian visas. The Tribunal accepts that this may be the case but notes that this is contemplated as an ordinary consequence of breach of visa conditions and accords it no weight against cancelling the applicant’s visa.
There is no evidence or suggestion of likely psychological hardship. The Tribunal finds that financial and emotional hardship to the applicant weighs to a small extent against the exercise of the discretion to cancel the applicant’s visa.
The applicant sought to persuade the Tribunal that the circumstances of the termination of his employment were outside of his control and that he was the innocent victim of the mistakes of other employees combined with a vindictive attitude on the part of his employers.
The Tribunal is not persuaded that this is the case. The Tribunal notes the contents of the letter of 3 May 2019 which suggest wrongdoing by the applicant in the course of his employment which is contrary to the applicant’s evidence.
The letter further suggests that there is CCTV evidence of the applicant’s misconduct which is also contrary to the applicant’s evidence that his employers had no evidence in support of their assertions.
The Tribunal finds that the applicant’s employment was terminated because of his misconduct, theft from his employer and breach of a term of his employment.
The Tribunal finds that the circumstances in which the ground of cancellation of the applicant’s visa arose were wholly within the visa holder’s control. The Tribunal accords this consideration substantial weight in favour of the exercise of its discretion to cancel the applicant’s visa.
There is no evidence of relevant past or present behaviour of the visa holder towards the department and the Tribunal does not accord this consideration any weight in favour of the exercise of its discretion to cancel the applicant’s visa.
There is no evidence that there would be consequential cancellations under section 140 and the Tribunal treats this consideration as neutral in considering the exercise of its discretion.
If the visa is cancelled the visa holder will become an unlawful noncitizen.
He will need to apply for a bridging visa or permanent visa to remain in Australia. If he is not granted a visa and does not leave voluntarily, he will become liable to detention under section 189 and removal under section 198.
Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.
There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.
The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.
The applicant asked the Tribunal to take into account the impact of the COVID 19 pandemic on the hospitality industry in which he had been employed. At paragraph 39 B of the applicant’s declaration he refers to having “decided to resign from the former employer”.
The applicant suggests that he was confident of being able to find another position and says that he had an offer to start work in February 2020 which was thwarted.
The Tribunal does not accept that the applicant decided to resign. The Tribunal is not satisfied that the applicant had skills that were in demand given that he was looking for 4 months and had only one offer that was not due to start for a further 5 months.
The Tribunal has weighed the considerations set out above together and finds that, although the applicant suggests that the grounds for cancellation arose from matters beyond his control, the Tribunal is not satisfied that that is the case.
The Tribunal has weighed the considerations against each other and finds that the grounds for cancelling the visa outweigh the reasons not to cancel the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Mark O'Loughlin
Member

[2020] AATA 5993

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction