Khan (Migration)

[2022] AATA 2299

Khan (Migration) [2022] AATA 2299 (8 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Imran Khan
Mrs Mehreen Nasir
Miss Eshal Khan

CASE NUMBER:  2013249

HOME AFFAIRS REFERENCE(S):          BCC2020/966500

MEMBER:Jason Pennell

DATE:8 June 2022

PLACE OF DECISION:  Melbourne

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

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

Statement made on 8 June 2022 at 9.46am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – sponsor cancelled and barred under s 140M – consideration of discretion – unable to secure a new sponsor – beyond the applicant’s control – best interests of the child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 August 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. For the purposes of this decision, the first named review applicant will be referred to as ‘the applicant’. The second and third-named review applicants will be referred to as ‘the secondary applicants.

3. The delegate cancelled the visa under s.116(1)(g) based on the existence of grounds for cancellation prescribed in r.2.43(1)(l)(iv), namely that the sponsor of the applicant’s visa has had their standard business sponsorship agreement cancelled under s.140M of the Act. As dependants on the applicant, the secondary applicants also had their visas cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The secondary applicants’ visas were automatically cancelled because of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa.[1] As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the secondary applicants.

   [1]    Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96.

5. The applicant appeared in-person before the Tribunal on 26 April 2021 to give evidence and present arguments. The applicant was not represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g), that provides for the cancellation of a visa if the Minister is satisfied that a prescribed ground for cancelling a visa applies to the holder. 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.

Background

1. The applicant is a Pakistani citizen, born 2 September 1982, who first arrived in Australia on a Vocational Education and Training Sector (TU-572) visa on 29 March 2008. On 14 December 2018, the applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa (‘Temporary Work Visa’).[2] The applicant’s sponsor for the purposes of being awarded the visa was Optimum Tyre and Service Centre Pty LTD (‘OTSC’) (‘the sponsor’), whose nomination was approved on 17 September 2018. 

   [2]    This visa was closed to new applications from 18 March 2018 and replaced with the new Class GK Subclass 482 (Temporary Skills Shortage) visa, (see Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (F2018L00262)).

2. The applicant is currently the holder of a Bridging Visa E while the current application is considered.

3. The applicant and Mrs Mehreen Nasir (the applicant’s wife) were married in 2012 and they have a daughter, Miss Eshal (‘the applicant’s daughter’) who is approximately 7 years old. The applicant’s wife and daughter are dependent on the applicant’s income. Prior to travelling to Australia, the applicant and his wife lost their infant son in or about 2018. As a result, they suffered from deep depression and came to Australia for a better life. The applicant’s evidence was that his daughter is in school and is doing very well. The applicant’s evidence is that he and his family have complied with the visa conditions. As such, he claims that it is unfair that his visa has been cancelled as it is because of events beyond his control, being the cancellation of his sponsor. 

Does the ground for cancellation exist?

s.116(1)(g) - prescribed ground

1. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(l)(iv)) is relevant.

2. On 2 March 2020, pursuant to section 140M(1) of the Act the delegate cancelled OTSC  as a standard business sponsor and barred the sponsor from making any further applications for approval as a standard business sponsor for a period of two (2) years. OTSC lodged a review application with the Tribunal. On 3 June 2022 the Tribunal affirmed the delegates decision to cancel OTSC as a standard business sponsor barring it from making any further applications for approval as a standard business sponsor for a period of two (2) years.   

3. As a result, the applicant was advised that there appeared to be grounds to cancel his visa pursuant to section 116(1)(g) of the Act by a Notice of Intention to Consider Cancellation dated 18 June 2020 (‘NOICC’). The NOICC informed the applicant that a prescribed ground for cancelling a visa, pursuant to r.2.43(1)(l)(iv), is due to the applicant’s primary sponsor being cancelled. As such the applicant was advised that there were grounds for cancelling his visa due to the cancellation of OTSC as the applicant’s standard business sponsor.

4. The NOICC invited the applicant to provide comments on the intention to cancel within a statutory timeframe. On 25 June 2020 the applicant provided a response to the NOICC in which he stated that as a holder of the visa he had always abided by and complied with its conditions. The applicant claimed that he had he worked diligently with his sponsor and has improved his technical and customer service skills in this position. The applicant stated that cancellation of the visa would be unfair as he had always been compliant and that it would stop his career. In addition, the applicant stated that he had chosen to come to Australia to live as it provides equal opportunity, rule of law and multiculturalism, and is a good, safe place for his family. The applicant noted he is married with a seven-year-old daughter. His daughter is in school and is happy living in Australia. His wife and child are both dependant on him. He claimed that he wanted to provide a better future for his family.  Finally, the applicant claimed that his wife had lost a child in 2018. He stated that having been granted the visa blessing which had a positive effect on their mental health. The applicant claimed that if the visa was cancelled his family would be unlawful and it will destroy the future of their lives. The applicant requests that the Tribunal exercise its discretion not to cancel his existing visa and allow him time to find a new employer.

5. On 19 August 2020, the delegate issued the applicant with a record of decision of whether to cancel under section 116 of the Act. The delegate was satisfied that there were grounds for cancelling the applicant’s visa and concluded that the visa should be cancelled.

6. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

1. 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 of Home Affairs’ (‘the Department’) Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

The purpose of the visa holder’s travel and stay in Australia

1. The applicant arrived in Australia on a Vocational Education and Training Sector (TU-572) visa on 29 March 2008.

2. On 14 December 2018, the applicant was granted a Temporary Work Visa (UC 457) valid for 4 years until 14 December 2022 to enable the applicant to work in Australia for an approved sponsor in a temporary skill shortage occupation which could not be filled within the Australian workforce.

3. The applicant’s sponsor for the purposes of being awarded the visa was OTSC, whose nomination was approved on 17 September 2018 for work as a Motor Mechanic.[3] On 2 March 2020 OTSC sponsorship was cancelled.

   [3] Motor mechanic (General) ANZCO code:321211)

4. In his response to the NOICC and in his evidence to the Tribunal, the applicant accepted that he was aware that OTSC’s sponsorship of his visa had been cancelled and that his nomination had ceased. As a result, his evidence was that he was no longer working.  The applicant’s evidence to the Tribunal was that he had not lodged or secured a new approved nomination. The applicant claimed that he had been offered employment as a Motor Mechanic but had not been able to work because he did not have a sponsor. The applicant’s evidence was that he had not been able to secure a further sponsor.  The tribunal notes that the applicant has been on a Bridging Visa E since 11 Sep 2020 which has an 8101 (no work) visa attached to it.

5. Nevertheless, the applicant provided the Tribunal with a letter from a prospective employer, Optimums Auto Care (‘OAC’) (ACN 20 625 902 221), dated 29 April 2021 that stated that they were ‘pleased to offer’ the applicant full time employment.  However, the letter does not refer to sponsoring the applicant for the purposes of his employment. In addition, OAC’s ABN number as recorded on the letter appears to be false. A search of the Australian Government Australian Business Register[4] records lists OAC’s ABN number as (ABN 20 161 794 510) and not as recorded in the letter. Coincidently, the search revealed that OTSC and OAC have the same ABN number, being (ABN 20 161 794 510).  It therefore appears to the Tribunal that OAC is a related entity to OTSC, an entity that has been barred from making any further applications for approval as a standard business sponsor for a period of two (2) years.  Therefore, as a related entity to OTSC it is unlikely that OAC will be able to become an approved sponsor for the applicant’s visa.

   [4] Australian Government Australian Business Register >

   In circumstances where applicant’s offer of employment does not come from an independent third party and in the absence of any evidence that the applicant has lodged or secured a new approved nomination, the Tribunal finds that the applicant is no longer working for an approved sponsor. As such, the Tribunal finds that the purpose of the applicant’s stay in Australia is no longer in line with the purposes of the Temporary visa. As such, the Tribunal gives this consideration considerable weight in favour of cancelling the visa.

Applicant’s compelling need to travel to or remain in Australia

1. The applicant’s evidence was that he came to Australia with his wife and daughter for a better life. He claimed that his wife had suffered depression after they lost their infant son in 2018. The applicant did not provide any medical evidence in relation to his wife’s condition. In addition, the applicant’s wife did not appear before the Tribunal for the purposes of giving evidence. Nevertheless, the Tribunal accepts the applicant’s evidence in relation to his wife and the death of their son.

2. While the Tribunal accepts the applicant’s evidence that he and his family had suffered emotional hardship in Pakistan and have been happy living in Australia, the applicant did not provide the Tribunal with any compelling reason for him to remain in Australia. Therefore, was no evidence that the applicant and his family could not return to Pakistan. His evidence was that his parents continue to reside in Pakistan together with his three brothers and a sister. In addition, he is a qualified motor mechanic. Therefore, in circumstances where the applicant holds qualifications as a motor mechanic and has the support of his family, in the absence of any evidence to the contrary, there appears to be no reason why the applicant is compelled to remain in Australia. As such, the Tribunal gives this consideration some weight in favour of cancelling the applicant’s visa.

The extent of compliance with visa conditions

1. There is no evidence to indicate that the applicant has been non-complaint with any condition his visa was subjected to. In fact, the evidence of the applicant was that he had complied with all the visa conditions, which the Tribunal accepts. As such, the Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

Degree of hardship that may be caused

1. The applicant claims that he has been committed to his work and has improved his skills as a mechanic. He claims that if his visa is cancelled it would affect his career in Australia. This is accepted by the Tribunal to a degree. However, the Tribunal notes that the applicant was on a temporary visa and as such he would have been required to return home (subject to being granted any further visa) to Pakistan at the expiry of the visa in December 2022. There is no reason why, as a qualified motor mechanic he would not be able to continue his career and development of his skills in Pakistan.

2. In addition, the applicant claims that his family (in particular his wife) had suffered severe depression as a result of the death of his infant son and the cancellation of his visa would course emotional hardship to the entire family as a result of having to return to Pakistan. As noted above, the applicant did not provide any evidence in relation to his wife’s condition. Therefore, while the Tribunal accepts that returning to Pakistan would cause some emotional pain to the applicant and his family, it does not accept that the degree of emotional hardship that they may suffer would be such that it would prevent them from returning to Pakistan. Accordingly, the Tribunal places no weight on this consideration in favour of the applicant.    

3. The Tribunal acknowledges that the applicant will experience difficulties in returning home due to the travel restrictions in place because of the Covid-19 pandemic. The Tribunal notes that the Government has put in place several contingency options for visa holders in Australia with limited options for returning home. These options can be accessed at the Department of Home Affairs’ website. Accordingly, the Tribunal places no weight on this consideration in favour of the applicant. 

4. Nevertheless, the Tribunal acknowledges that the applicant and his family will suffer some degree of hardship if the visa is cancelled. As a result of the applicant’s visa being cancelled the applicant will suffer some financial, emotional, and psychological hardship. However, it does not accept that they would be to the degree to prevent the applicant’s visa being cancelled. As such, the Tribunal places little weight in the applicant’s favour of not cancelling his visa.     

Circumstances in which ground of cancellation arose

1. The circumstance in which the applicant’s visa was cancelled is detailed above. That is, the ground for cancellation of the applicant visa arose because OTSC’s approved sponsorship was cancelled on 2 March 2020 pursuant to section 140M of the Act. The tribunal affirmed the delegates decision to cancel OTSC as an approved sponsor on 3 June 2022.   There was no evidence that the applicant had obtained a new approved nomination with an approved sponsor to work in the nominated occupation. In fact, the applicant’s evidence to the Tribunal was that he did not have a new sponsor.  

2. The applicant acknowledged that he had not lodged nor secured a new approved nomination. The applicant’s evidence to the Tribunal was that he had been offered work but had been not been able to take it because he did not have a sponsor. The letter dated 29 April 2021 provided by the applicant indicates that his offer of employment comes from an entity related OTSC. As such the Tribunal as concerns about the applicant’s evidence about offers of work from other potential employers independent of OTSC. As such, the Tribunal considers that the applicant is no longer working in the nominated occupation for an approved sponsor.

3. The Tribunal accepts the applicant’s claim that he has complied with all his visa conditions and that the cancellation of his visa was beyond his control. However, the applicant’s evidence was that he was aware that he was granted the visa on the basis that he had an approved sponsor. In such circumstances it reasonable to expect that he would have realised that the cancellation of the sponsor would affect his ability to continue holding the Temporary Work Visa.  There is no evidence of him having obtained a new sponsor.

4. Accordingly, the Tribunal places no weight on this consideration in favour of the applicant. 

Past and present behaviour of the visa holder towards the department

1. There is no evidence which suggests that the applicant has been uncooperative with the Department. The Tribunal give the little weight in relation to this consideration in the applicant’s favour.

Whether there would be consequential cancellations under s.140

1. The applicant has the secondary applicants as dependants whose visas will automatically be cancelled under section 140 of the Act. The cancellation of the applicant’s visa will not result in the separation of the applicant’s family unit. Therefore, the Tribunal gives little weight in relation to the consideration in the applicant’s favour of not cancelling the visa.

Mandatory legal consequences

1. If the applicant’s visa is cancelled, then the applicant will become an unlawful non-citizen and may be liable to being placed in immigration detention under section 189 of the Act if he does not voluntarily depart Australia. In addition, under section 48 of the Act he would have limited options of applying for further visas while in Australia. The Tribunal notes however, that cancellation under these grounds does not cause the applicant to be affected by the Public Interest Criteria 4013 and will not face an exclusion period because of his cancellation. The applicant may be able to apply for a bridging visa to finalise any outstanding issues. The Tribunal therefore gives this consideration little weight in favour of the applicant. 

Any international obligations

1. The applicant’s daughter is aged 7 years and is currently living with the applicant and her mother as part of the family unit.

1. Article 3.1 of the Convention of Rights of the Child (CRC) states:

   ‘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 interest of the child shall be a primary consideration.’

2. The Tribunal must consider the best interests of the applicant’s daughter as a primary consideration in determining whether or not to cancel the applicant’s visa. The applicant has stressed how well his daughter is doing in her school and how happy she is in Australia.

3. However, if a decision is made to cancel the applicant’s visa, his daughter will not be separated from the applicant and will continue with the applicant and her mother. There is nothing to suggest because of being returned to Pakistan the applicant’s daughter will suffer any harm. 

4. The Tribunal accepts that if a decision is made to cancel the applicant’s visa and his daughter is required to return to Pakistan with the applicant and her mother then this would likely cause her some emotional hardship. No doubt the separation of school friends and social contacts will cause her some hardship. However, she will not be separated from her family and in fact will more than likely be reunited with her extended family in Pakistan. The Tribunal acknowledges that generally a child’s best interests are better served when they have both parents involved in their lives. Therefore, in circumstances where the applicant’s daughter will remain with her parents, the Tribunal gives this consideration little no weight to these matters in the applicant’s favour.

Any other relevant matters

1. There are no other matters of relevance to consider in this decision. Accordingly, the Tribunal places no weight on this consideration in favour of the applicant.

2. Therefore, having considered all the circumstances, the Tribunal concludes that the visa should be cancelled.

DECISION

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

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

Jason Pennell
Senior Member