Khan (Migration)

[2020] AATA 5057

Khan (Migration) [2020] AATA 5057 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haseeb Ahmed Khan

CASE NUMBER:  2004417

HOME AFFAIRS REFERENCE(S):          BCC2019/4441754

MEMBER:Mr S Norman

DATE:13 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 13 October 2020 at 4:33pm

CATCHWORDS
MIGRATION – cancellation – Subclass 457 (Temporary Work (Skilled)) visa – breached visa condition – ceased employment had exceeded 90 consecutive days – ICT Business Analyst – ANZSCO: 261111 – employment with sponsor terminated due to organisational restructure – beyond applicant’s control – hardship to parents in Australia – attempts to regularise immigration status – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 359AA
Migration Regulations 1994, Condition 8107(3)(b), PIC 4013

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 28 February 2020 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 Department decision was not lodged with the Tribunal.

2. As noted above, the delegate cancelled the visa under s.116(1)(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 8 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. 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) of the Act. 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.

6. The applicant lodged numerous evidence and submissions. Though not all evidence and submissions were expressly referred to herein, all has been considered prior to finalising this decision.

   Does the ground for cancellation exist?

7. 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.

8. On 21 July 2016, the applicant had been granted a Temporary Work (Skilled) (Subclass 457) visa (nominated occupation – ICT Business Analyst – ANZSCO: 261111).

9. The following was then put to the applicant by the method prescribed in s.359AA. By email from the applicant’s sponsor (AUREC Pty Ltd) dated 12 August 2019, the Department was notified the applicant had ceased work with the sponsor from 15 July 2019.[1] On 4 February 2020, the Department issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Subclass 457 visa. The applicant was advised that consideration was being given to cancelling his visa, under s.116(1)(b) of the Act. That was because it appeared he had not complied with condition 8107(3)(b) which had attached to his visa (the period during which he had ceased employment had exceeded 90 consecutive days). The condition stated:

   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 90 consecutive days  

   [1] PDF – p.2 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database).

10. After then granting an extension of time within which the applicant could respond to the NOICC, no further material response was received by the Department within the prescribed period. The delegate continued that the applicant did not have a new sponsor, and the applicant had ceased employment with his former sponsor around seven months prior to the delegate’s decision. The delegate believed this to have been sufficient time to rectify the non-compliance. The delegate then found there existed grounds to cancel the applicant’s Subclass 457 visa under s.116(1)(b), as the applicant had failed to comply with condition 8107(3)(b).

11. At hearing, the applicant accepted that he had ceased employment with his former sponsor on 15 July 2019 and that he was not the subject of a further nomination. Based on the evidence before the Tribunal, I accept the applicant breached condition 8107(3)(b) which had attached to his Subclass 457 visa.

12. For this reason, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act, 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

13. 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’.

14. In their decision, the delegate noted the applicant had arrived in Australia on 4 February 2008 as the holder of a Student (subclass 572) visa for the purpose of study in the Vocational Education and Training sector. This visa was granted 17 December 2007. Additionally, the applicant had held the following visas whilst residing in Australia:

15. As noted above, the applicant was then granted the Subclass 457 visa on 21 July 2016; for the purpose of enabling him to work in Australia for an approved sponsor in a skilled occupation which could not be filled from within the Australian workforce. However, that purpose ceased on 15 July 2019, on which day the applicant ceased working for his former sponsor.

16. In their decision, the delegate noted the applicant had applied for a Student visa on 21 October 2019 in order to study within the Vocational Education and Training sector (with a Subclass 500 Student visa), and this ‘may have been an attempt to rectify his non-compliance with condition 8107’ (and with which the Tribunal agrees). However, this visa application had been refused on 13 December 2019, as the applicant had been determined to have failed to satisfy the genuine temporary entrant criteria.

17. In agent submissions lodged 2 October 2020, it was also claimed the applicant proposed to submit an Onshore Carer Visa or a Skilled visa application and would not be able to do so if the decision is affirmed. If affirmed, he would then have to wait for ‘between 5 to 6 years to process these visa applications’ and possibly offshore.

18. That being said, the purpose for which the Subclass 457 visa was granted ended 90 days after the applicant had ceased employment with his former sponsor, and this is (ie) the period within which he had to obtain another sponsor and apply for a new visa. Alternatively, the applicant could depart Australia and lodge an application for a further visa abroad.

19. There is no evidence to indicate the original intention of the applicant was not for the purpose of working for his former sponsor. However, the evidence provided to the Tribunal indicated his current intention was not for the purpose for which his Subclass 457 visa was granted.

20. Next, the applicant breached compliance with condition 8107(3)(b) when he stopped working for his former sponsor for more than 90 consecutive days.

21. Next, as noted above the applicant did not respond to the NOICC (though as noted below, this was apparently not the fault of the applicant). However, the applicant had resided in Australia since February 2008, and as did the delegate, the Tribunal presumes he formed some personal and economic ties to Australia in that time (though the applicant held temporary visas since arriving). For this reason, the Tribunal accepts there may be limited hardship to the applicant should his visa be cancelled.

22. Further, and more importantly, in agent submissions of 2 October 2020, the applicant lodged:

    ·     Doctors report dated 12 January 2017 referring to the Ashfaq KHAN (the applicant’s father) – noting he had a three year history of bilateral knee pain; noting that his right knee is generally worse than his left knee; referring to treatment; assessing the applicant to have bilateral end stage arthritis of the knees; and noting that the “only cure for this would be a total knee replacement”

    ·     Doctor’s report dated 2 March 2020 referring to the Ashfaq KHAN – stating he had been a regular patient of his ‘clinic’; that the father had diabetes / Ischemic Heart Disease / Severe Osteo-Arthritis in both knees and severe pain; his condition requires close supervision and constant support; that he and his wife depends primarily on their son (the applicant) in order to maintain his health and well-being

    ·     Doctor’s report dated 4 March 2020 referring to the Ashfaq KHAN - referring to him as a 71-year-old gentleman with ‘eight-month’s history of burning pain, paresthesia in feet’; that he has difficulty doing domestic chores; and that treatment was ongoing. The father’s conditions were said to include (NB: other medical reports were lodged):  

    ·     Doctors report dated 1 March 2020 referring to the Razia KHAN (the applicant’s mother) - referring to her treatment for the following medical conditions:

    ·     Doctors report dated 12 March 2020 referring to the Razia KHAN - stating she had presented with anxiety and depression; that she had Adjustment Disorder with anxiety and depressed mood/and that she lives with her husband and youngest son; and that she had “struggled with” other medical conditions

23. Also lodged was a statutory declaration dated 29 February 2020 from Mobina ASHFAQ. It was stated therein:  

    I am a citizen of the United States of America and currently live in Bare, Delaware with my husband and four children …

    I have known [the applicant] since his birth on 27^th of September 1985 as [the applicant] is my youngest brother in a family of seven

24. After then referring to the applicant as inter alia dedicated, hard-working and competent, it was said the applicant was highly motivated; that he had been looking for a ICT Business Analyst positions since he left Aurec Group so he can progress with his career; and that if he were not allowed to remain in Australia the impact on the deponent and family would be ‘devastating’; that he is the only member of the family who is not an Australian citizen; that the applicant is the primary driver of his parents ensuring amongst other things that they attend all medical appointments; that his ongoing presence in Australia is “absolutely vital to the parents well-being”. The deponent also said if the applicant is not allowed to remain in Australia the parents will have no one to look after them and this will impact their health. It may also mean that the deponent would need to relocate from the United States of America and this would cause “high emotional and financial distress”. It was also said the applicant had been in Australia for 12 years; and that the deponent believed he had been contributing positively to Australian enterprises, organisations and the community.

25. A statutory declaration from Abdul Waheed Khan dated 1 March 2020, provided materially the same claims; and a statutory declaration dated 2 March 2020, and a statutory declaration from Razia Ashfaq dated 1/03/2020, provided corroborating claims. Another statutory declaration from Haseeb Ahmed KHAN (the applicant) dated “26^th 2020” (sic) referred to the applicant having been granted a Subclass 457 to work with the former sponsor; that the applicant finished working with the former sponsor on 2 August 2019 due to ‘organisational restructure’; the applicant arrived in Australia in 2008 on a Student visa; that in the last 12 years the applicant had worked in IT in a number of named organisation; that the applicant was the youngest child in a family with seven siblings; that three of the brothers are Australian Citizens and reside interstate or overseas:

    ·     Abdul Waheed KHAN - Beckenham, Western Australia

    ·     Imtiaz Ahmed KHAN - United Arab Emirates (though now in Sydney)

    ·     Ikram KHAN – Greenvale Victoria

26. The applicant also said three sisters are permanent residential citizens and live overseas with their spouses and children:

    ·     Shahana Ashfaq – Saudi Arabia

    ·     Imtiaz Ashfaq - United States of America

    ·     Farhana Ashfaq - United states of America

27. A further statutory declaration was lodged by Imtiaz Ahmed Khan (the applicant’s brother) who worked as the Director of Cyber Security at Roads & Maritime Services (Transport for NSW) dated 1 October 2020. Evidence of an award to Imtiaz Ahmed Khan from NSW Transport NSW for “strong leadership” was also lodged.

28. Also lodged was an email dated 9 July 2020 to MR Imtiaz Khan (the applicant’s brother) & Mrs Uzma Hamed referring to a Kindergarten Selective Test for 2020, for Aleena Imtiaz, and email dated 5 August 2020 from Al Nooi Muslim School Selective Test for Saturday, 8 August 2020. Also lodged was a doctor’s letter dated 29 September 2020 noting that MR Imtiaz Khan’s wife was pregnant.

29. The Doctor’s evidence which had been lodged was detailed and indicated lengthy treatment for the applicant’s father and mother for a range of conditions and over a lengthy period of time. All the medical evidence corroborated the claim the applicant contributed substantially to their quality of life in Sydney (the applicant confirmed at hearing that he lived with his parents in Sydney). After discussing same at hearing, and given only one of the applicant’s siblings resided in Sydney (a brother whose wife was pregnant and had two other children), the Tribunal also accepts the applicant is the chief, if not sole, carer for his parents within his family.

30. Therefore, and based on the accepted evidence, the Tribunal is satisfied the cancellation of the applicant’s visa would cause significant hardship to him and his family in Australia.

31. Next, the circumstances within which the ground for cancellation arose, were that the applicant breached condition 8107(3)(b) after having ceased work with his former sponsor for a period of 90 consecutive days.

32. When discussed at hearing, the applicant explained that he ceased employment due to cost cutting measures taken by his former sponsor (something referred to as a ‘organisational restructure’ above). The employment cessation letter from the applicant’s former sponsor dated 26 June 2019, also thanked him and congratulated him for a ‘job well done’. The Tribunal therefore accepts that the cessation of the applicant’s employment, after some 12 years residence in Australia without any known prior visa concerns, was the subject of circumstances beyond his control.

33. Next, apart from the applicant failing (through human error – explained below) to respond to the NOICC, there is no evidence he had not co-operated with the Department or the Tribunal. In agent submissions of 2 October 2020, the applicant lodged:

    ·     Agent submissions dated 2 October 2020, where it was said the applicant currently resides in Australia on a Bridging Visa E.  It was also said that between August 2019 to 10 February 2020, the applicant unsuccessfully but actively sought out a new position by applying for jobs on Seek and Linked Rich recruitment websites. A substantial amount of evidence of the applicant’s efforts to secure employment in the claimed period, and in accordance with the purpose of his cancelled visa was also lodged

    ·     Agent submissions dated 2 October 2020, stating amongst other things, that the applicant had approached their firm on 14 February 2020 to request an extension of time to respond to the NOICC, and this was emailed to the Department (delegate’s decision dated 28 February 2020); that on the same day as the delegate’s decision, the Department issued an email to the agent saying they would investigate the case; that on 2 March 2020 the Department noted the agent email had gone to the wrong email address (referring to ‘.com’ rather than ‘.gov’ – being ‘human error’ on the part of the agent); the Department said (words to the effect) the cancellation would stand

    ·     In the same agent letter it was said that in the 12 years the applicant had resided in Australia he had never disengaged from the Department and had demonstrated compliance with immigration laws

34. That being said, the evidence before the Tribunal indicated the applicant had engaged in substantial effort to remedy his visa status after the cessation of his employment with his former sponsor on 15 July 2019.  

35. Next, the Tribunal has no evidence there would be any consequential cancellations should the applicant’s visa be cancelled. Next, there is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

36. Next, if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

37. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia. However, the Tribunal understands that cancellation of the visa under these grounds will not incur any penalty under PIC 4013 to prevent the applicant from applying from overseas for a new visa once he had established his eligibility for one.

38. After then considering the evidence, the Tribunal is concerned that the purpose for which the applicant was granted his Subclass 457 visa had clearly ceased. However, when then considering the applicant’s materially unblemished visa record, his reasonable attempts to regularise his migration status after ceasing work with his former sponsor, and given the significant hardship that may be caused to him and his family (particularly his parents in Australia) if his visa was cancelled, the Tribunal has decided not to exercise the discretion to cancel the applicant’s visa in this case.

39. Be that as it may, and as noted at hearing, it will be in the applicant’s interest to attempt to regularise his migration status as soon as possible after receiving this decision.

40. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    decision

41. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.  

    Mr S Norman
    Member