Mirza (Migration)

[2020] AATA 4830

Mirza (Migration) [2020] AATA 4830 (17 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Arsalan Mirza
Mrs Safina Gul
Miss Zarah Mirza

CASE NUMBER:  2009184

HOME AFFAIRS REFERENCE(S):          BCC2019/2637809

MEMBER:Joanne Bakas

DATE:17 November 2020

PLACE OF DECISION:  Adelaide

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 17 November 2020 at 12:24pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – sponsor did not provide work in approved position and applicant worked with another employer – applicant complained to department about sponsor and was threatened by an employee – financial and emotional hardship if visa cancelled – members of family unit – decision under review affirmed for first applicant, no jurisdiction for other applicants

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (3), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(a)(ii)(B)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 May 2020 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 applicant became the subject of an approved nomination by their sponsor Libdy Developments Pty Ltd and was subsequently granted a Subclass 457 (Temporary Work (Skilled)) visa on 4 October 2016 to work as a Construction Estimator (ANSCO code: 312114) which had an expiry date of 4 October 2020. 

3. The delegate cancelled the visa under s.116(1)(b) on the basis that the Minister was satisfied that the applicant did not comply with a condition of their visa; in this instance condition 8107(3)(a)(ii)(B) attached to the applicant’s visa. In the assessment of the discretionary factors as to whether or not the visa should be cancelled the delegate found that the visa should be cancelled, having regard to all the circumstances. On 1 June 2020 the applicant applied for review of their visa cancellation with the Tribunal.

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.

5. 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.

6. The applicant appeared before the Tribunal on 21 September 2020 to give evidence and present arguments via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. 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

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 attached to the applicant’s visa requires at clause 8107(3)(a)(ii)(B) that the visa holder must remain employed by their sponsor for the life of the visa.

9. It is not disputed by the applicant that he never commenced work at Libdy Developments in October 2016.  His evidence included that he followed the instructions of his lawyer.  His position is that this situation is not his fault and that he was educated and qualified for the work.  Libdy Developments kept telling him that they will give him a job but after two and a half years he realised that he would not get employment with them. In the meantime he had been paying them money.  He drove for Uber in that time. At the beginning of 2019 he lodged a complaint on Border Protection’s scam web page.  It took about a month to get a reply from the Department.

10. The applicant claims that he has been very open about his situation with the Department of Home Affairs.  

11. The Tribunal is satisfied on the evidence before it that the applicant never commenced employment with their approved sponsor and commenced working for another employer who was not an associated entity of the sponsor employer and that the ground for cancellation in section 116(1)(b) exists. As this 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

12. 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 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 applicant submits that he has been in Australia since 2009, initially on a student visa.  He stated he is concerned about returning to Pakistan as the accountant for Libdy Developments threatened him in June 2019 when he happened to come across him at a mosque.  This was after the applicant had reported the employer to the Fair Work Commission. The applicant’s evidence is that the accountant is also from Pakistan and is well connected.  In Australia the applicant feels safe but in Pakistan the accountant may be able to harm him.  The applicant lodged a complaint with the police on the same day that the threat occurred.

14. The applicant submitted copies of emails to establish that he reported a threat made to him on 30 June 2019 to police and to the Fair Work Ombudsman’s office. The verbal threat, as detailed in the emails indicates the threat was due to the accountant losing his contract with Libdy Developments as a result of the applicant lodging a complaint and threatened to do something to the applicant in Pakistan. The emails submitted by the applicant also show that the applicant and employer engaged in a mediation through the Fair Work Ombudsman in about July 2019 which was ultimately unsuccessful. 

15. At the hearing the applicant was asked by the Tribunal whether he has been subject to any other threat since 30 June 2019.  The applicant stated that he has not.  He also stated he has been advised to not pick up numbers from private calls in case it is the accountant.

16. 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 occupation of Construction Estimator (ANSCO code: 312114).

    The Tribunal considered the applicant’s submissions as detailed above and accepts that a threat was made.  However, the Tribunal does not accept this threat or the evidence of the applicant as detailed above  add to a compelling need to remain in Australia in favour of not cancelling the visa. Given the passage of time since the threat, and that it is was one threat that was made when they happened to cross paths, the Tribunal does not find the threat credible. The Tribunal is not satisfied, on balance, that the applicant is at risk if he returns to Pakistan following a verbal threat made on 30 June 2019.

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

    The extent of compliance with visa conditions

18. The Tribunal acknowledges and takes into consideration that the applicant commenced working for another employer in breach of his 8107 conditions.

19. The applicant concedes he never commenced employment with the nominated sponsor and it was not until 2019, more than two years since the visa was granted, that the applicant sought advice from the Fair Work Commission. 

20. The applicant has not been able to find another sponsor.  He worked as an Uber driver until he had a meeting with Border Protection in August 2019 and was told he had no work rights.  He now has a Bridging Visa with work rights and he is working in an administrative role on a copper press.

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

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

22. The applicant submits that he will be killed if he is returned to Pakistan as the accountant for Libdy Developments ‘has links everywhere in Pakistan’. The applicant lives with his wife and daughter and they have no other family in Australia.  He does, however, have family in Pakistan. 

23. He has been struggling financially and his mother visited last year and brought $8,000 for financial assistance and his wife brought another $8,000 back from Pakistan in April or May 2019 from her father.  The applicant’s wife is not working as she looks after their daughter.

24. Before the COVID-19 pandemic, he was planning on finding another sponsor or a Subclass 491 visa. 

25. He is worried about his wife and daughter.  He does not feel secure going to Pakistan.

26. As stated above, at the hearing the applicant was asked by the Tribunal whether he has been subject to any other threat since 30 June 2019.  The applicant stated that he has not.  He also stated he has been advised to not pick up numbers from private calls in case it is the accountant.

27. A new accountant at Libdy Developments made an offer to him through the Fair Work Ombudsman mediation but the applicant rejected the offer.  There was ultimately no resolution.

28. He would like to stay in Australia and has lived in Australia since 2009.

29. As detailed above, the Tribunal is not satisfied that the applicant is at risk if he returns to Pakistan following an alleged verbal threat made on 30 June 2019. Much of the applicant’s submissions were centred on this issue.

30. However, given the length of time the applicant has resided in Australia the Tribunal accepts there would be a degree of financial and emotional hardship that will be experienced by the applicant and his family as a result of a visa cancellation.

31. The Tribunal gives this consideration some weight in favour of not cancelling the visa.    

    Circumstances in which ground of cancellation arose

32. The applicant submits that the ground for cancellation arose because his employer did not provide him with the given employment. He would have been happy to work for the employer but was not given an opportunity. He waited until more than two years prior to seeking support from government agencies regarding his situation.

33. Since his visa was granted, the applicant has stated he has worked as an Uber driver which has been a breach of his visa conditions, as detailed above.

34. The Tribunal accepts that the employer not providing employment to the applicant appears to have been beyond his control.   However, the applicant waited some two years before seeking assistance from relevant government authorities. At the hearing the applicant stated that he was expecting the job to commence but drove for Uber in the meantime.

35. The Tribunal considered whether these circumstances would amount to extenuating circumstances beyond the applicant’s control and finds that it most probably was.  However, given the length of time the applicant waited before taking any action regarding this employment situation, the Tribunal finds that these circumstances weigh somewhat in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the department

36. The delegate’s decision details that there is no evidence that suggests the applicant has been uncooperative with the department and the Tribunal has had regard to the fact that he responded to the Notice of Intention to Consider Cancellation.

37. In addition, the applicant submits that he has been assisting the department in their investigations regarding this employer and has provided copies of some emails in support of this contention of no employment enabled.

38. These circumstances weigh somewhat in favour of not cancelling the visa.

    Whether there would be consequential cancellations under s.140

39. If the applicant’s visa is cancelled, his wife’s visa will also be consequentially cancelled as will his daughter’s, being claimed members of the same family unit. 

40. The Tribunal affords this consideration a little weight against cancelling the visa.

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

41. In circumstances where the visa is cancelled, the applicant and his dependents will no longer have suitable visa status to allow them 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.

42. 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.

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

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

44. In considering whether to exercise its discretion to cancel the applicant's visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia's responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

45. As noted by the delegate, the applicant’s daughter was granted a visa because she is a member of the family unit of the primary visa holder. If a decision is made to cancel the applicant’s visa, the child’s visa will consequentially be cancelled as a result. The delegate notes that this will keep the family’s status aligned and is therefore, unlikely to result in a separation of the family unit. The Tribunal’s view is in accord with this.

46. The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration.

47. The applicant’s daughter is two years old.  In the event of a visa cancellation outcome, it is unlikely to cause the breakup of the visa holder’s family unit or separation of any family members.  Given the child’s age, the Tribunal does not consider that the applicant’s daughter would experience hardship readjusting to life outside of Australia, if required to depart. The Tribunal is satisfied that it is in the best interest of the applicant’s child to remain with her family whether that is in Australia or elsewhere, and there is no reason to suggest that this is not possible or likely should the family be required to leave Australia.

48. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR would not be affected by the cancellation of the applicant's visa as the family would not be separated because of the cancellation.

49. In regard to the threat of harm expressed by the applicant, as detailed above, the Tribunal has not found this threat credible. The Tribunal finds that the applicant’s claimed fear as a result of a verbal threat he received on 30 June 2019 to be not well-founded.

50. The Tribunal finds that there is 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.  

51. The Tribunal has considered the circumstances of this case would not lead to a breach of any other international obligations Australia may have. In weighing up these considerations, including the best interests of the child as a primary consideration, the Tribunal attributes some weight in favour of cancelling the visa.

    Any other relevant matters

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

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

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

55. The Tribunal has no jurisdiction with respect to the other applicants.

    Joanne Bakas
    Member