Latif (Migration)

[2021] AATA 2331

Latif (Migration) [2021] AATA 2331 (6 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arshad Latif

CASE NUMBER:  2010277

HOME AFFAIRS REFERENCE(S):          BCC2019/6668421

MEMBER:Joanne Bakas

DATE:6 April 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 06 April 2021 at 2:13pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled))– cancellation and barring of sponsorship for a three-year period– applicant no longer undertakes the occupation of Cook –  breached condition 8107– applicant ceased employment for more than 60 consecutive days – applicant has not been able to secure another approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 June 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).

2. The delegate cancelled the visa under s.116(1)(g) of the Act on the basis that a prescribed ground for cancelling as detailed at reg 2.43(1)(l)(iv) of the Migration Regulations 1994 (the Regulations) applies to the visa applicant. GARAJ PTY LTD trading as Fusion Restaurant was the standard business sponsor who nominated the applicant in the most recently approved nomination for the visa. On 11 December 2019 a delegate of the Minister made a decision under s.140M(1) of the Act to cancel the approval of the person as a standard business sponsor and to bar the sponsor for three years from making future applications for approval as a standard business sponsor and temporary activities sponsor.

3. 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. The applicant appeared before the Tribunal on 9 March 2021 via audio and video conference on MS Teams to give evidence and present arguments.

5. 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

6. 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). 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?

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

7. 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, as detailed above.

8. The ground of cancellation was not disputed by the applicant.  Rather his submissions at the hearing included that his visa should not be cancelled as the circumstances giving rise to the cancellation were not his fault.

9. The Tribunal is satisfied on the evidence before it that the GARAJ PTY LTD, as the standard business sponsor of the applicant, did have their approval as a standard business sponsor cancelled on 11 December 2019 and that they are barred from making future applications to sponsor for three years by the delegate of the Minister under s.140(M)(1) of the Act. As a result, as prescribed by reg.2.43 para (1)(l)(iv) of the Regulations, this gives rise to a prescribed ground for cancelling the applicant’s visa under s.116(g).

10. 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

11. 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’ which are discussed under the headings below.

12. At the hearing the applicant’s submissions included the following:

    a.The cancellation reason was not his fault.

    b.He does not have anything back in his country to do.

    c.His wife and children are back home in Pakistan and they look to him for financial support.

    d.He is currently driving a taxi to earn some money.

    e.He has tried to find another sponsor but at the time his visa had already been cancelled and he was not able to.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

13. The Tribunal notes that the applicant’s visa was granted on 13 December 2016 with an expiry date of 13 December 2020.  His visa cancellation date was 17 June 2020.

14. The applicant’s submissions included that his employer had promised him that after this visa expired, a renewal would be applied for.  As such he expected he would be able to stay in Australia.

15. The Tribunal is cognisant of the circumstances that the applicant was granted the visa for the purpose of being able to temporarily fill a skill shortage in a particular area and to work in Australia for an approved sponsor in a skilled occupation for which he was specifically nominated and which could not be filled from within the Australian workforce.  As noted in the decision of the delegate, provided by the applicant, the approved nomination for the applicant’s most recent Temporary Work (Skilled) (subclass 457) visa was approved for him to work for the sponsor in the nominated occupation of Cook (ANSCO code: 351411).

16. The Tribunal also accepts the applicant’s evidence that he has not been able to secure a new sponsor or to apply for another visa in line with a valid purpose for wishing to remain in Australia, or alternatively, to arrange to depart Australia.

17. While the Tribunal accepts the applicant’s evidence that the cancellation and barring of sponsorship for a three-year period of GARAJ PTY LTD was not his fault, the Tribunal places substantial weight on the purpose of the applicant’s stay in Australia no longer existing as he no longer undertakes the occupation of Cook. This weighs substantially in favour of cancelling the visa.

    The extent of compliance with visa conditions

18. One of the visa conditions (8107(3)(b)) allows the applicant 60 days from ceasing employment with the sponsor in which to pursue and secure a new sponsor or to apply for another visa in line with a valid purpose for wishing to remain in Australia, or alternatively, to arrange to depart Australia. The applicant stated at the hearing that he has not been able to find another sponsor.  There is otherwise no evidence before me that he has had any other nominations lodged by employers since his employment with his sponsor ceased.  The cessation of employment with his sponsor means that his ongoing stay with no sponsor is not in line with the purpose of the visa.  During the 60 day period, a person continues to hold the visa for an extended period to continue searching for another sponsor, or alternatively to await the outcome of an appeal by a potential sponsor to this Tribunal.

19. The Tribunal gives this consideration some weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the department

20. The applicant stated that he never received the notice of intention to cancel his visa as his employer had set up his email for correspondence and had not provided him with the password.  His employer told him in March 2020 that he needs to find another job as the employer had some issues and had to close the restaurant. He did not correspond directly with the department until he went to a migration agent and his employer gave him the password.

21. There is otherwise no evidence before the Tribunal regarding a lack of co-operation with the department.

22. The Tribunal gives this consideration a little weight in favour of not cancelling the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. The applicant’s submissions included that he has three children aged 21, 16 and 14 and a wife who all live in Pakistan and look to him to provide financial assistance. He also stated that Pakistan is a developing country, that everything is still closed down due to COVID-19 and that he could not even earn $10 a day there, should he have to return.  This would put financial pressure on him and his family.

24. He has a brother who is retired and lives in Pakistan and another brother who lives in the Unites States of America and who has helped him financially. This brother paid for his AAT application.

25. He does not have any family in Australia and is on his own here.

26. The Tribunal accepts the applicant’s evidence that if his visa is cancelled, he would be adversely impacted financially. 

27. The Tribunal accepts that the applicant would suffer some hardship if the visa is cancelled and places a little weight in the applicant’s favour on the hardship that may be caused by cancellation of the visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.

28. The Tribunal accepts the applicant’s submissions that the ground for visa cancellation was outside his control and not his fault.   

29. The Tribunal gives this consideration some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

30. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s.140 of the Act, as other family members are not in Australia.  As such, this is not a relevant consideration to this case.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

31. In circumstances where the visa is cancelled, the applicant will no longer have suitable visa status to allow him to remain in Australia. He will thus become an unlawful non-citizen liable for detention under s.189 of the Act and removal under s.198 of the Act.

32. The applicant would also be subject to s.48 of the Act which would limit the potential to lodge further visa applications onshore in Australia.

33. As such, the Tribunal gives this consideration a little weight against cancelling the visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

34. The Tribunal finds no information before it to indicate that visa cancellation would impact Australia's international obligations or would be in breach of Australia's non-refoulement obligations.  As such, the Tribunal attributes some weight in favour of cancelling the visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

35. As the visa subject to cancellation is not a permanent visa, this is not a relevant consideration to this case

    Any other relevant matters

36. There are no other relevant matters evident or raised by the applicant.

37. In considering the circumstances as a whole, the Tribunal is satisfied on balance, that the factors in favour of cancelling the visa outweigh those in favour of not cancelling the visa.

38. The Tribunal, accordingly, concludes that the visa should be cancelled.

    DECISION

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

    Joanne Bakas
    Member