Mehmood (Migration)

[2022] AATA 5172

Mehmood (Migration) [2022] AATA 5172 (14 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Assad Mehmood

REPRESENTATIVE:  Mr Tariq Ameer (MARN: 1807556)

CASE NUMBER:  2201051

HOME AFFAIRS REFERENCE(S):          BCC2021/1991977

MEMBER:Mary Sheargold

DATE:14 July 2022

PLACE OF DECISION:  Melbourne

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 14 July 2022 at 4:22pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – sponsorship cancellation and bar reversed – decision under review set aside

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 25 January 2022 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that Mr Mehmood breached his visa condition 8107(3)(b) because his sponsor, Jadoon Group Pty Ltd, had its sponsorship cancelled on 18 October 2021, but Mr Mehmood continued to work for them. 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 briefly on 27 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the director of Jadoon Group Pty Ltd, Mr Noman Khan.  The Tribunal adjourned the hearing on the basis that a related application by Jadoon Group Pty Ltd needed to be finally determined before a meaningful assessment of this application could be made.

4. Having finalised the review of Jadoon Group Pty Ltd’s application in relation to its sponsorship cancellation and bar on 14 July 2022, I have determined it is not necessary to resume the hearing with Mr Mehmood, and I will proceed to make my decision on the basis of the new evidence before me now.

5. The applicant was represented in relation to the review.

6. For the following reasons, I have concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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(3) attached to the applicant’s visa. This multi-pronged condition requires, inter alia, that Mr Mehmood only work in a position in the business of his sponsor or an associated entity (condition 8107(3)(a)(ii)(B), and that if he ceases employment, the period during which he ceases employment must not exceed 60 consecutive days (condition 8107(3)(b)).

9. The delegate was satisfied that Mr Mehmood did not obtain a new sponsorship for his Subclass 457 visa after his sponsor’s standard business sponsorship approval was cancelled by the Department.  Mr Mehmood openly acknowledges he continued working for, and continues to work for, Jadoon Group Pty Ltd on a daily basis.

10. It is apparent that Mr Mehmood would have breached condition 8107(3)(b) by continuing to work for Jadoon Group Pty Ltd after its sponsorship was cancelled, because technically he would have ceased working for his sponsor for 60 consecutive days: this is because his sponsor was no longer an eligible sponsor. 

11. Setting aside the obvious impossibility of Mr Mehmood obtaining a new sponsor for his Subclass 457 visa given applications for nomination approvals for that visa subclass closed in March 2018, on 14 July 2022, I have decided to substitute the decision cancelling Jadoon Group Pty Ltd’s sponsorship with a decision not to cancel the sponsorship.  My decision in this respect has the effect of reversing the sponsorship cancellation retrospectively. 

12. As Mr Mehmood has continued to work for his approved sponsor throughout the sponsor’s Tribunal review application process, it stands to reason that he has not in fact breached condition 8107(3)(b) at the time of my decision.  There is no evidence before me, at the time of my decision, to demonstrate that Mr Mehmood has breached any of his visa conditions.

13. For these reasons, I am not satisfied that the ground for cancellation in s 116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    Mary Sheargold
    Member