MALIK (Migration)

[2018] AATA 4948

MALIK (Migration) [2018] AATA 4948 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hafiz Muhammad Jasim MALIK

CASE NUMBER:  1813361

HOME AFFAIRS REFERENCE(S):           BCC2018/396541

MEMBER:Mr S Norman

DATE:31 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2018 at 1:32pm

CATCHWORDS

MIGRATION – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled) –  employment requirements – substantial gap since sponsorship ceased – business closed – no relevant business nomination has been approved – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8 condition 8107

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 applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act). The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant breached condition 8107(3)(b). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The Department delegate’s decision was lodged with the Tribunal.[1]

   [1] Tribunal – from folio 5.

2. The applicant was represented in relation to the review by his registered migration agent.

3. By s.359A letter of 11 October 2018 (dispatched by email to the authorised recipient), the Tribunal wrote to the applicant and requested comment (discussed below). That letter requested comment in writing by 25 October 2018. The applicant was also advised that if they did not respond within the period allowed, they would:

   lose any entitlement [they] might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.

4. Section 360 of the Act states inter alia the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments”. However, section 359C(2) of the Act provides that if a person fails to respond to a s.359A letter, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information. On 26 October 2018, the (tertiary educated) applicant lodged a late response to the above s.359A letter (discussed below).

5. The Tribunal also gave consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act in order to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. I have also had regard to the decision in Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment (something that was not requested in this case), and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

   [2] [2002] FCA 617

   [3] [2012] FMCA 28

   [4] [2013] HCA 18 (8 May 2013)

   [5] [2014] FCAFC 1 (4 February 2014)

   [6] [2014] FCA 915 (28 August 2014)

6. However, the applicant was assisted by a migration agent and was made aware of the circumstances his visa was cancelled at the time of the Department delegate’s decision on 1 May 2018. Even with his migration agent’s assistance, the applicant failed to respond to the Tribunal’s s.359A letter within the time allowed. In these circumstances, the Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time to provide evidence and submissions.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Does the ground for cancellation exist?

9. 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 condition 8107 attached to the applicant’s visa. Most importantly, condition 8107(3)((b) stated:

   …if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days …

10. The applicant was granted a Temporary Work (Skilled) – class UC subclass 457 visa on 26 August 2016 (due to expire on 26 August 2020). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 4 April 2018,[7] the applicant was advised it appeared he had not complied with ‘condition 8107 paragraph 3’ (which was attached to his visa). The applicant was advised the standard business sponsor who had nominated him in the most recently approved nomination for the visa was Anderson Recruitment and Training P/L (the sponsor). That nomination was approved on 26 August 2016. Department records dated 1 June 2017, indicated the applicant had ceased employment with the sponsor, effective 10 May 2017. This meant the applicant was in breach of condition 8107(3)(b), as he appeared to have ceased employment with the sponsor for a period exceeding 90 consecutive days. The applicant was then advised that if correct, his visa may be cancelled under s.116(1(b) of the Act. The applicant was advised he must respond in writing within five days of having being taken to have received the NOICC letter.

    [7] Department – from folio 13.

11. By migration agent email dated 20 April 2018,[8] it was claimed the applicant was law-abiding, however due to compelling reasons beyond his control he was unable to adhere to condition 8107(3)(b). The agent then submitted:

    ·though the applicant performed his position to a ‘very high standard’, the sponsor closed down and left the applicant unemployed ‘for no reason’

    ·the applicant had ‘incessantly looked for employment since that date’, and this had been a difficult task but that he had ‘found an employer’

    ·the prospective employer was lodging a new nomination “very soon” and the applicant wants to contribute to another Australian business

    ·the applicant had suffered serious financial issues since he lost his position in “May” and cancelling his visa would increase his debt and add to his “already present emotional stress” and his circumstances are “very dire”

    ·the applicant had been of great benefit to Australia as an accountant

    ·the applicant is committed to adhere to all visa conditions

    [8] Department – from folio 22.

12. As noted above, by s.359A letter of 11 October 2018 (dispatched by email to the authorised recipient), the Tribunal wrote to the applicant and requested comment. The letter advised the applicant:

    ·he was granted a subclass 457 Visa on 26 August 2016. That visa was cancelled on 1 May 2018. His visa was sponsored by Anderson Recruitment and Training P/L

    ·the subclass 457 visa was subject to condition 8107, which required (in part), that the applicant must not cease to be employed by his approved sponsor, and that if he ceased employment, the period must not exceed 90 days

    ·that the applicant ceased his employment with his sponsor on or before 10 May 2017. Further, that on 1 May 2018, the applicant had not worked for his sponsor for more than 90 consecutive days

    ·that there was no information to indicate the applicant had recommenced work with his sponsor

    ·that a recent check had indicated that no relevant business nominations had been approved in respect of the applicant since his visa was cancelled.

13. The applicant was then advised that this information was relevant because it indicated:

    · the applicant had breached a condition of his subclass 457 visa and there are grounds for cancelling the visa under s.116(1)(b) of the Act

    ·    There are circumstances which may indicate the subclass 457 Visa should be cancelled including:

    ·the subclass 457 Visa was granted to the applicant for the purpose of undertaking particular employment with an approved sponsor and that purpose ceased when the applicant stopped being employed by the sponsor

    ·the applicant had not secured a new approved employer sponsor, because no new business nomination had been approved for him and if the Tribunal was to set aside the cancellation of his visa, and the visa was reinstated, he would immediately be in breach of condition 8107.

14. The applicant was then advised that if the Tribunal relied on this information, we may:

    · determine he had breached his visa condition and therefore there were grounds to cancel the subclass 457 Visa under s.116(1)(b) of the Act

    ·    decide that the visa should be cancelled.

15. The letter also invited the applicant to provide evidence and submissions which may assist it to determine whether the visa should be cancelled (the applicant was also advised that he was not limited to the suggestions provided in the letter). The Tribunal invited the applicant to comment in writing by 25 October 2018. As noted above, the applicant lodged a response on 26 October 2018. However, he did not dispute that there were grounds to cancel the visa.

16. Based on the information before it, the Tribunal is satisfied 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

17. 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’.

18. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant arrived in Australia as the holder of a Student (subclass 573) visa. On 26 August 2016, he was granted a Temporary Work (subclass 457) visa onshore. He was granted the Temporary Work visa for the purposes of working for an approved sponsor in a skilled occupation which he was specifically nominated to work in. He ceased this employment on or around 10 May 2017. In his email submissions lodged with the Tribunal on 26 October 2018,[9] the applicant said he had paid $30,000 for job placement fees and an additional $7,000 as a bond. It was said the applicant believed the fees were “really high” but nonetheless had agreed given he was unaware of the “Australian recruitment process”. No corroborating evidence was lodged.

    [9] Tribunal – from folio 48.

19. In his earlier response to the NOICC, it was claimed the applicant wished to work as an accountant in Australia and had found a new employer who would sponsor him. As noted above, the applicant’s agent also provided evidence that inter alia the applicant had been of great benefit to Australia and he would lodge a new nomination “very soon”. However, the Temporary Work visa program was designed to enable employers to sponsor overseas workers to work in Australia on a temporary basis. The applicant had not worked for an approved sponsor for almost 12 months at the time of the delegate’s decision. Further, based on the checks made by the Tribunal (at the date of the s.359A letter of 11 October 2018), no relevant business nominations had been approved in respect of the applicant since his visa was cancelled. The Tribunal is not satisfied the applicant’s present intention in staying in Australia, is for the purpose intended for the Temporary Work visa.

20. Regarding the extent of compliance with visa conditions, around 11 months had passed since the applicant had ceased being employed by his approved sponsor at the time of the delegate’s decision; and around 16 months had passed as at the date of the Tribunal decision (as noted above, the Tribunal has not identified any sponsor nominations in relation to the applicant). The Tribunal believes this breach to be significant.

21. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, in the response to the NOICC it was claimed the applicant had suffered financial loss as a result of losing his employment; and that he was forced to support himself through loans from friends while looking for work. It was also claimed that he was under emotional stress. It was also noted the applicant had resided in Australia since February 2012, and he may have developed some ties in Australia. The Tribunal accepts this may be correct.

22. In his email submissions lodged with the Tribunal on 26 October 2018,[10] it was claimed the applicant and his family “will suffer a great deal of hardship if the case is affirmed”. It was claimed his father is sick and that he has been supporting his father financially for “quite some time”. It was claimed the father had no income due to his age and health and that medical and medication bills needed to be paid (medical documents lodged[11]). The Tribunal accepts the applicant’s family may benefit by any monies he earns in Australia. However, the applicant has remained in breach of his visa conditions for around 16 months at the time of the Tribunal decision. Further, the Tribunal understands the applicant’s father would have access to all medical assistance and services that are provided to citizens of Pakistan. The Tribunal understands that health services in Pakistan are generally free, but that the quality of healthcare may suffer from a lack of funding.  However, the medical evidence lodged indicates the father is being treated by doctors in Pakistan, and as an accountant, the applicant would presumably be able to find work commensurate with his skills in Pakistan.

    [10] Tribunal – from folio 48.

    [11] Tribunal – from folio 38.

23. Next, it was claimed the fact the applicant lost his employment with the sponsor was completely out of his control (given the sponsor’s business ceased). In his email submissions lodged with the Tribunal on 26 October 2018,[12] it was claimed that two months after commencing with his sponsor’s business, the business had closed down. It was claimed the applicant was then ignored by the business and he had requested his “money back” as he had been promised a four-year contract. No monies were refunded. He said his sponsor had not advised the Department of the fees they charged the applicant for his four-year contract. The Tribunal has no corroborating evidence about the claimed fees charged by the applicant sponsor.

    [12] Tribunal – from folio 48.

24. However, the Tribunal notes the applicant should have been aware of the condition attached to his visa and that he needed to ensure he was not unemployed for 90 consecutive days (this information is provided in the letter granting the applicant his visa). Further, at the time of the Tribunal decision, around 16 months had elapsed since the applicant had ceased employment with his nominating sponsor. Accordingly, the Tribunal is satisfied the applicant has had ample time to remedy his circumstances and had not done so, or had not been able to do so.  

25. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal.  The Tribunal has no evidence that any other persons’ visa would or may be impacted if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the (Pakistani citizen) applicant’s visa is cancelled.

26. Next, if the applicant’s visa is cancelled he would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I do not accept the applicant would be subject to indefinite detention. He may also retain his Bridging visa (temporarily) in order to remain in the community to organise his affairs prior to departing.

27. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013, meaning he could not be granted a temporary visa for three years from the date of cancellation. 

28. Next, it was claimed the applicant had made a contribution to the Australian economy by working as an accountant for the period he was employed by his sponsor. However, that employment ceased over 16 months prior to the Tribunal decision. 

29. In summary, the Tribunal accepts the applicant (and/or his family) may be benefitted by the applicant remaining in Australia. However, the Tribunal is satisfied the applicant has had ample opportunity to remedy his visa breach. That he has not remedied the breach (or not been able to have remedied the breach) in the past 16 months (since he ceased his employment with his sponsor), is one of the main reasons the Tribunal is satisfied it should exercise the discretion to cancel the visa in this case.

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

    DECISION

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

    Mr S Norman
    Member