MALIK (Migration)

[2019] AATA 976

MALIK (Migration) [2019] AATA 976 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abdul Moiz Khan Malik
Ms Mehreen Ishrat
Miss Amatul Muhaymin Manha Khan
Miss Aaira Khan

CASE NUMBER:  1812986

HOME AFFAIRS REFERENCE(S):           BCC2018/374706

MEMBER:John Cipolla

DATE:4 January 2019

PLACE OF DECISION:  Sydney

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 04 January 2019 at 3:21pm

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Temporary Work (Skilled)) visa –applicant failed to commence working for his sponsoring employer – primary applicant departed Australia – Subclass 457 visa was now obsolete – breach of condition 8107 – unable to secure an approved nominating business – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348

CASES
Tien & Ors v MIMA (1998) 89 FCR 80
Rani & Ors v MIMA (1997) 80 FCR 379

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 May 2018 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. The delegate cancelled the visa under s.116(b) on the basis that the applicant failed to commence working for his sponsoring employer Anderson Recruitment and Training Pty Ltd. 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. 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 other applicants’ visas were automatically cancelled as a consequence 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: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The primary visa applicant did not appear before the Tribunal as he had departed Australia as the holder of a Bridging E visa prior to the hearing and his wife appeared.  The Tribunal explained at the review hearing that it only had jurisdiction in the review with regard to the primary visa applicant and that it did not have jurisdiction with regard to the secondary visa applicants.  The Tribunal was assisted by an interpreter in the Urdu and English languages, however the applicant’s wife spoke and elected to speak to the Tribunal in English.

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(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?

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. In this instance it is condition (3)(aa)(i) attached to the applicant’s visa. This condition requires that the applicant commence working with the sponsor, Anderson Recruiting and Training Pty Ltd within 90 days of his arrival in Australia.

8. The evidence before the Tribunal indicates that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa on 4 April 2018. Recourse to the NOICC indicates that the delegate had information before them that the applicant had not commenced working with his sponsor within 90 days of his arrival in Australia.

9. The applicant provided a comprehensive response to the NOICC dated 10 April 2018. The applicant advised that he travelled to Australia to work for the sponsoring business in the position of motor mechanic. The applicant stated that he arrived in Australia on 14 April 2017 with his wife and 2 daughters in good faith to work for the Australian business and with the prospect of building a better life for his family in Australia.

10. The applicant claims that a week after he arrived in Australia he was sent to various jobs around the Sydney region to work in car repair centres. The applicant was advised that his salary would be paid to him on a monthly basis and deposited into a nominated bank account. The applicant claims that he worked for 3 months and was never paid by his sponsoring employer. The applicant claimed that he was given a range of excuses for the non-payment of his salary.

11. The applicant claims that on 1 July 2017 he informed his sponsoring employer that he needed to travel to India to visit his mother who was gravely ill and hospitalised. The applicant was given leave and he travelled to India from 12 July 2017 until 7 October 2017.

12. The applicant claimed that on 29 August 2017 he received an email from his sponsoring employer that his employment with them ceased on 10 July 2017 on the basis that the employer could no longer afford to offer the applicant work.

13. The applicant’s submission notes that he made a number of attempts to obtain unpaid wages from his sponsoring employer and to obtain ongoing work with them and that he was told that they did not have sufficient work and they did not pay the applicant’s wages that he was owed. The applicant’s submission noted that his mother-in-law visited Australia on 24 November 2017 and during her visit was diagnosed with colon cancer and underwent surgery in Sydney in December 2017 to have a tumour removed. The applicant claimed that in February 2018 he was employed by a motor mechanic with Amer Motor Mechanic as a general motor repairer, a business that undertook to sponsor him and the applicant requested the Department give him some time to allow the new employer to have a nomination approved.

14. The applicant stated in his submission to the Department that he was the subject of unscrupulous employment practices by his sponsoring employer.  The applicant also advised that on 18 November 2017 he was advised by his then migration agent that the 457 visa subclass had been abolished and that he could no longer apply for Subclass 457 visa and that he needed to wait for regulatory changes to occur. The applicant further advised the Department that his wife was pregnant with the couple’s third child and that the cancellation had an impact on his 2 young daughters and on his wife.

15. On 1 May 2018 the Department of Immigration proceeded to cancel the applicant’s visa. As a consequence the secondary visa applicants’ visas were cancelled under Section 140 of the Migration Act.

16. As noted the applicant’s wife attended the Tribunal hearing with the applicant’s daughter and his brother in law.

17. As the outset of the review hearing the Tribunal advised that it did not have jurisdiction to conduct a review of the consequential cancellations of the secondary visa applicants’ visas under s.140 of the Migration Act.

18. The applicant’s wife explained that her husband had returned to India due to the ongoing ill health of his mother and evidence was provided pre hearing confirming this fact.  She further advised that her husband had departed on a Bridging E visa and had no right to re-enter Australia.

19. The Tribunal explained for the benefit of the applicant’s wife the process of merits review, and why the Tribunal did not have the power to review the consequential cancellation of her visa and her two daughter’s visas. The Tribunal outlined the respective issues in review and the prospective outcomes.

20. The Tribunal also explained that it had given consideration to her husband’s submission in response to the NOICC in which he claimed to have been the subject of unscrupulous practices by his sponsoring employer, Anderson Consulting and Training Pty Ltd and other factors that had led to the breach of condition 8107 that was attached to his Subclass 457 visa.  The Tribunal further noted that based on the evidence before it the applicant had failed to find another business to sponsor him and that the applicant had been advised of the abolition of the Subclass 457 regime by a previously engaged migration agent.

21. The Tribunal noted that even if it was to set aside the visa cancellation there was no visa to re-instate as the Subclass 457 visa was now obsolete, the applicant had failed to secure another approved sponsoring business under that visa regime and the replacement visa, the Subclass 482 visa had been in force since March 2018.

22. The Tribunal offered to contact the applicant to explain these issues in detail and collate any further evidence.  The secondary visa applicant advised that she understood her husband and families predicament and that she could convey this to her husband in India and that there was no need to call her husband.  The hearing concluded.

    Does the ground for cancellation exist?

23. 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 attached to the applicant’s visa. Of relevance in this case is 8107(3)(aa) which requires that the applicant commence work for the sponsoring employer within 90 days of arriving in Australia.

24. The evidence before the Tribunal indicates that the applicant was granted a Subclass 457 visa on 31 March 2017.  The applicant arrived in Australian on 13 April 2017.  The sponsoring employer notified the Department on 10 July 2017 that the applicant had not commenced working for the business since his arrival in Australia.

25. The applicant in response to the NOICC claims that he did in fact start work for the sponsoring employer from 14 April 2017 until 9 July 2017 and that throughout this period he was not paid by the sponsor.  The applicant further advised that on 1 July 2017 he was informed that his mother in India was ill and he travelled to India from 12 July 2017 until 7 October 2017 and he claims that his sponsoring employer granted him leave.  Whilst the applicant was outside Australia the sponsor terminated his employment with them.

26. The evidence before the Tribunal indicates that upon return to Australia the applicant claims to have made requests of his sponsoring employer to pay unpaid wages and to provide work and that he was not aware that the sponsoring employer had notified the Department that he had ceased working for them. The applicant further claims that the delay in him finding alternative employment was due to the fact that the sponsoring business had promised to re-employ him.

27. The evidence before the Tribunal indicates that between 24 November 2017 and 10 February 2018 the applicant’s mother-in-law whilst visiting Australia was diagnosed with colon cancer and underwent surgery on 1 December 2017 in Australia to have her tumour removed. The applicant claims that he was the sole carer for his mother-in-law and family during the 3 months that she recovered from surgery. The applicant claims that he commenced working for another motor mechanic business from 12 February 2018 until 10 April 2018. The applicant was told by this business that they would apply to nominate him for a temporary work visa, but this did not transpire. The applicant in his response to the NOICC indicated that a migration agent advised him in November 2017 that the 457 visa subclass have been abolished and hence he could no longer apply for such a visa on shore and he needed to wait for changes to the visa regime to occur.

28. The applicant in response to the NOICC stated that he expended all of his savings from overseas in relocating his family to Australia with an expectation that he would have full-time work in Australia for 4 years as a temporary visa holder. The applicant claims that he has no employment to return to in India and it would be difficult for him to secure work in India. The applicant also makes reference to the disruption to his daughters who are attending school in Australia and the applicant noted that his wife was pregnant with their third child. The applicant also claimed that it was always his intention to perform the occupation of motor mechanic and implored the Department of Immigration to take these factors into account in not cancelling his visa.

29. The evidence before the Tribunal indicates that the sponsoring business advised the Department that the applicant failed to commence employment with them after his arrival in Australia.  This evidence is rebutted by the applicant who claims he did commence this employment and worked for the sponsor for 3 months but did not get paid during this period.  Apart from this assertion there is no other evidence before the Tribunal which would lead it to be satisfied that there was compliance with condition 8107(3)(aa)(i) by the applicant.  Further to this the evidence indicates that since the applicant’s claimed cessation of employment with his sponsoring employer, he was not able to secure a new sponsorship in the following 17 month period.  The Tribunal accordingly finds that the applicant did not comply with condition 8107(3) attached to his Subclass 8107 visa. 

30. 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

31. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

32. The Tribunal has first considered the purpose of the applicant’s travel to and stay in Australia. The applicant arrived in Australia as the holder of a Subclass 457 visa on 13 April 2017 to work for his then sponsoring business, Anderson Consulting and Training Pty Ltd, in NSW in the position of motor mechanic. The evidence indicates that this visa was valid for 4 years until 31 March 2021. The applicant in response to the NOICC advised that he worked for his sponsoring employer from 14 April 2017 to 9 July 2017. The applicant claims to have worked in several locations for the sponsoring business and that in the 3 months that he worked for the sponsoring business he was not paid. The applicant then departed Australia on 12 July 2017 until 7 October 2017 at which time he returned to India to be with his ailing mother. Upon the applicant’s return he made attempts to secure employment with his sponsor and other employers and was not able to obtain any employment until February 2018 with another motor mechanic business who employed him for just under 2 months. There is no evidence before the Tribunal that indicates that the applicant was able to secure an approved nominating business after he ceased employment with his sponsoring employer on 9 July 2017.

33. The Tribunal notes that the applicant’s visa had been granted until 2021 and given the length of time still to run on that visa it would be difficult to set the cancellation aside without an approved nomination in place as the conditions attached to the 457 visa, and the protections for temporary workers in Australia, requires there to be an approved sponsor for whom the applicant can work in accordance with approved terms and conditions of employment, which would need to be satisfied as part of the nomination approval.

34. The Tribunal has had regard to the submission made by the applicant in response to the NOICC. The Tribunal considers that the purpose for which the applicant was granted his Subclass 457 visa was to work in the occupation of motor mechanic for Anderson Consulting and Training and that purpose ended on 9 July 2017 when the applicant ceased working for that company and left Australia to visit his sick mother for 3 months. The Tribunal acknowledges that the applicant made efforts to find another sponsor.  However, it has been 17 months since the applicant ceased working for his approved sponsor and to date the applicant has not been able to secure another approved nomination under the 457 visa programme.

35. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for his approved sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa. 

36. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(b) the applicant has complied with visa conditions. The Tribunal is also satisfied on the evidence before it that the applicant has been cooperative with the Department. 

37. The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose on the basis that the applicant failed to commence work for his sponsoring employer within 90 days of his arrival in Australia and apart from the applicants assertions that he did commence work for his sponsoring employer, work for which he was never paid there is nothing to negate the findings made that grounded the cancellation of the applicant’s 457 visa.  The Tribunal considers that the applicant did make efforts to secure another nomination after he ceased employment with the sponsor, and while this weighs in favour of the applicant, it is outweighed by the fact that that the applicant has not been able to secure another nomination despite having tried to do so for 17 months.

38. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. The Tribunal notes that the applicant expended money on relocating his family from India to Australia. However the applicant was granted a temporary visa of 4 years duration which contained a number of conditions. The evidence before the Tribunal indicates that the applicant failed to comply with condition 8107(3) . The applicant in his response to the NOICC states that it will be difficult for him to find work in India. The evidence before the Tribunal indicates that the applicant has qualifications as a motor mechanic and there is no evidence before the Tribunal which would lead it to conclude that the applicant would not be able to re-establish himself in India.

39. The Tribunal acknowledges and accepts that the applicant and his family may experience some hardship if the visa is cancelled. The Tribunal accepts that the applicant may experience financial hardship, however the Tribunal notes that the applicant according to his evidence has been unemployed in Australia since July 2017 a period of 17 months.  Given the relatively short period of time the applicant and his family have been in Australia the Tribunal considers that the applicant will be able to overcome that hardship and re-establish himself in his home country.

40. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant has departed Australia on a Bridging E visa. If the visa is cancelled the applicant will be affected by s.48 of the Act and will have limited options for applying for a substantive visas onshore without the intervention of the Minister.

1. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation. 

2. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant has made an effort to secure a nomination with an approved sponsor. The Tribunal also acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant has generally complied with visa conditions and has been cooperative with the Department. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor 17 months ago. As indicated above, the applicant can, should he wish to do so, make an application offshore for a Subclass 482 visa should a nomination in relation to him be approved in future.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

4. 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.

   John Cipolla
   Senior Member