Khan (Migration)

[2018] AATA 5498

Khan (Migration) [2018] AATA 5498 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sardar Ali Khan

CASE NUMBER:  1805028

HOME AFFAIRS REFERENCE(S):           BCC2017/4780847

MEMBER:Karen Synon

DATE:12 November 2018

PLACE OF DECISION:  Perth

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 12 November 2018 at 3:17pm

CATCHWORDS
MIGRATION – cancellation – Temporary Work (Skilled) visa – Subclass 457– sponsoring company’s sponsorship ceased –– Database Administrator – employment ceased over 90 consecutive days –   employer administrative error – fresh nomination lodged – decision under review set aside


LEGISLATION
Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 February 2018 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).

2. The delegate cancelled the visa under s.116(1)(b) on 21 February 2018 the basis that the applicant had not complied with Condition 8107(3)(b).

3. The applicant applied for review of the decision to cancel his visa on 26 February 2018 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Invitation to comment and provide information

5. On 3 October 2018, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     The information is from the Department of Home Affairs records and relates specifically to [the applicant]:

   o    You were granted a Subclass 457 visa on 16 May 2016.  It was originally valid to 16 May 2020 but was cancelled on 21 February 2018.  Your visa was sponsored by Geoffrey Nathan Consulting Inc.

   o    Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased to be employed by your approved sponsor, the period must not exceed 90 consecutive days.

   o    You ceased being employed by your sponsor on or before 25 August 2017.  On 21 February 2018, the date your visa was cancelled, you had not worked for your sponsor for more than 90 consecutive days.

   o    There is no information to indicate that you recommenced employment with your sponsor.

   o    A recent check indicates that no new relevant business nominations have been approved in respect of you since your visa was cancelled.

   In conducted this review in your case:

   ·We will first consider if there are grounds to cancel your Subclass 457 visa in accordance with s.116 of the Migration Act.

   ·If we determine that there are such grounds, we will then consider if your visa should be cancelled, taking into account all the relevant information.

   This information is relevant because it indicates that:

   ·You breached a condition of your subclass 457 visa, and there are grounds for cancelling your visa under s.116(1)(b) of the Migration Act

   §There are circumstances which may indicate that your Subclass 457 visa should be cancelled including that:

   §  Your Subclass 457 visa was granted to you for the purpose of undertaking particular employment with an approved sponsor and that purpose ceased when you stopped being employed by your sponsor.

   §  You have not secured a new approved sponsor, because no new business nomination has been approved for you.

   If we rely on this information in making or decision, we may:

   ·Determine that you breached your visa condition and therefore are there are grounds to cancel your Subclass 457 visa under s.116(1)(b) of the Migration Act.

   ·Decide that your visa should be cancelled.

   You are invited to give comments on or respond to the above information in writing.

   If we determine that there are grounds to cancel your Subclass 457 visa, it will go on to consider if your visa should be cancelled.  In making this assessment, the Tribunal will consider all relevant information, which may include, but is not limited to:

   o    The purpose of your travel to and stay in Australia

   o    The degree of hardship that may be caused by visa cancellation

   o    The circumstances in which the ground for cancellation arose

   o    Your past and present conduct towards the department

   o    Australia’s obligations under international agreements

   o    The impact of cancellation on any victims of family violence

   o    Any other relevant matters.

   Applicant’s Response

6. In response the applicant provided the following relevant statement:

   This is to state that I stopped work for Deimos Technologies on 26^th August 2017, when the previous sponsor, Geoffrey Nathan, advised they were no longer approved for sponsorship.  From September 2017, I understood that Deimos was lodging sponsorship and Nomination documents for me, to transfer my 457 visa.  When I received the notice of intent to cancel my visa in February 2018, I contacted Sam at Deimos, to see what the problem was - he told me that everything was in process but they had forgot to lodge my Nomination and would do so immediately.

   Unfortunately my visa was cancelled before the new Nomination was lodged. I then lodged an AAT application and obtained a Bridging visa E.  I assumed my Bridging visa would still only allow me to work for Geoffrey Nathan so I moved to Sydney and lived with my brother, while I waited for Deimos to sort out the Nomination and for my AA T Hearing. I moved in with my brother as I was not working anywhere and could not afford to live in Perth with no income. I contacted Deimos many times and was always told "things are in process".

   My Agent contacted me about the information request from the AAT and I only then realised that I had permission to work on my Bridging visa E.  Deimos have advised that they will immediately re-advertise and lodge a new Nomination and I can now work for them while that is being processed.  I have been advised that Sam has been suffering from ill-health since he is a cancer patient and that was the reason for the delay in lodging the Nomination in my favour.  Deimos also assumed that I could not work for them while on a Bridging visa E.  Hence, I request that the Tribunal give consideration to my case as it has cost me all my savings over the last year, as I have not worked at all in that time.

7. Also provided in response was a letter from Sridhar Reddy, Technical Recruiter, Deimos Technologies dated 10 October 2018 which stated:

   This is to bring to your kind attention that Deimos Technologies Pty Ltd, has hired 11 consultants through Geffrey Nathan Consulting on a Labour Hire Agreement in Aug 2016.  [The applicant] was one of those consultants hired and he worked for us from Aug 2016 to Aug 2017.  We had shortlisted the best 5 consultants among the hired and notified them including the above consultant that we would sponsor them on our new SBS under Deimos Technologies.

   In December 2017 and January 2018, we got Nominations approved for the other four consultants.  In February 2018, Sardar Ali Khan received a cancellation notice, which is when we realised our mistake.  We quickly prepared the transfer of Nomination paperwork but his visa was cancelled before we could lodge.  Then the changes came from 457 To TSS in Mid March 2018.

   lodging (sic) the application I had a health issue that I am a cancer patient diagnosed and underwent surgery in 2014, I am back after my treatment on 26th of Sep, I am again scheduled for another operation next month and physiologically and physically I was not in a position to perform any job. as previous advertisements have been expired we have advertised again to lodged a fresh application.

   Deimos has advertised to lodge a fresh nomination for [the applicant] and while we were preparing for advertisements have been expired we have advertised again to lodged a fresh application.

8. In support of the submission copies of 3 advertisements for a Database Administrator were provided.  These were placed in ‘Seek’ dated 12 October 2018 and ‘Indeed’ dated 17 October 2018.

9. The applicant appeared before the Tribunal on 12 November 2018 to give evidence and present arguments. The applicant’s brother was present as a support person and to give evidence if necessary.  The applicant and witness appeared via video link from Sydney.

10. The applicant was represented in relation to the review by his registered migration agent who attended the hearing from the Member’s location in Perth.

11. 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

12. 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.

    Does the ground for cancellation exist?

13. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 was attached to the applicant’s visa. Condition 8107(3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.

14. On the basis of the information before it the Tribunal finds that the applicant was granted a subclass 457 visa on 16 May 2016 to occupy the nominated position of Database Administrator at Geoffrey Nathan Consulting Inc.

15. At the hearing the applicant gave evidence that he had been employed as a Database Administrator at Deimos Technologies (Deimos) based in Oak Street, Perth for a year from August 2917 until September 2017.  He was actually employed by Geoffrey Nathan Consulting which acted as an agent for Deimos Technologies.  The applicant explained that a year after completing his Bachelor in Engineering and Technology in India he worked for 5 years in Dubai as a Database Administrator and then his friend, who worked for Deimos, told him they were recruiting additional staff in Australia.  He had 2 Skype interviews with Sam (Sridhar Reddy) and was offered the position.  The applicant explained that while he was paid by Geoffrey Nathan Consulting and communicated via email with a woman at Nathan Consulting about his tax details he did not really understand the employment relationship and that he was being employed by them.  He thought he was employed by Deimos.  He only came to know that Geoffrey Nathan was the sponsoring agency and recruited manpower for Deimos 2 days before the cancellation when Sam told him that there was something wrong with their contract with Nathan Consulting and that Nathan Consulting’s sponsorship has been cancelled.  When told about this he was informed that Deimos would sponsor him directly.  There were 5 people Deimos said they would sponsor and 4 people got their nominations approved and have kept working for Deimos.  For some reason his nomination was overlooked but it has now been lodged.  He described Deimos as an IT company specialising in data information for international students and that 13 or 14 people worked from the same location.

16. The applicant is now living in Sydney with his brother until this problem can be sorted because he could not afford to keep living in Perth with no job.  He came to Australia “to seek greener pastures” and has a wife and 2 children (aged 4 and 8) in India.  He needs to work to provide for them and he would like to bring them to Australia.

17. Notwithstanding the somewhat confused circumstances of his cancellation, the applicant agreed that he ceased employment with Geoffrey Nathan Consulting Inc on 25 August 2017 and he has not been employed on a 457 visa in the period since then; a period exceeding 90 consecutive days.

18. 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 power to cancel the visa should be exercised.

    Consideration of discretion

19. 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 purpose of the applicant’s travel to and stay in Australia

20. The applicant gave evidence that he originally came to Australia to work for Deimos and that he was recruited from a similar position in Dubai.  He has not worked for any other company and indeed did not realise until recently that he could apply for work rights while his visa cancellation was on review. Given that a new nomination has been lodged by Deimos Technologies Pty Ltd in respect of the applicant and placing weight on the letter from Sridhar (Sam) Reddy that the company wants to re-employ the applicant and it was an oversight that this had not already happened, the Tribunal is of the view that the applicant’s purpose of travel to and stay in Australia is still a valid one.

    The degree of hardship that may be caused by visa cancellation

21. The applicant provided a submission stating that his visa cancellation has cost him all his savings and gave oral evidence that he supports his wife and 2 children in India and he would like to gain residency and bring his wife and children here.  However, as explained to the applicant at the hearing, a 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that the applicant would be able to remain in Australia on a permanent basis.  As the Tribunal notes that the applicant voluntarily left full time employment in Dubai to take up a temporary position in Australia, it gives this factor little weight.

    The circumstances in which the ground for cancellation arose

22. The Tribunal accepts that the circumstances in which this cancellation arose are quite unusual as the company for which he was working, Deimos was and is keen to have the applicant continue working with it as a Database Administrator.  That Deimos used a third party contractor to employ their staff, Nathan Consulting, whose sponsorship ceased, appears to have been outside the applicant’s control and that of his direct employer.

    The applicant’s past and present behaviour towards the Department

23. There is no information before the Tribunal to suggest that the applicant has not complied with his visa conditions.  The primary decision notes the applicant has been cooperative.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

24. The applicant’s visa was cancelled on 21 February 2108 and he now holds a Bridging visa E.  There is no evidence before the Tribunal that cancellation would result in him being subject to detention, or that indefinite detention is a possible consequence of cancellation.

    Whether any international obligations would be breached as a result of the cancellation

25. There is no evidence before the Tribunal regarding this matter.

26. There are no consequential cancellations under s.140.

27. In summary, the Tribunal accepts that the applicant’s proposed sponsor, Deimos Technologies Pty Ltd has a need for the applicant’s skills in its Australian operations, as evidenced by its lodgment of a nomination in respect of him.  The fact that this was the company for which the applicant worked prior to his visa cancellation and that it is for the same substantive occupation, further strengthens the Tribunal’s view that Deimos Technologies has a genuine need for the applicant’s skills in its workforce.  The cancellation arose in unusual circumstances and not because either the applicant or Deimos determined that the applicant’s skills and experience were no longer required.  The Tribunal explained to the applicant at the hearing that his eventual re-employment at Deimos Technologies would be consequential upon the department’s decision in relation to the lodged nomination and his subsequent visa application.

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

    DECISION

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

    Karen Synon
    Member