Mohammed (Migration)

[2022] AATA 3647

Mohammed (Migration) [2022] AATA 3647 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ismail Mohammed

REPRESENTATIVE:  Mr Tariq Ameer (MARN: 1807556)

CASE NUMBER:  2201525

HOME AFFAIRS REFERENCE(S):          BCC2021/1991970

MEMBER:Noelle Hossen

DATE:8 September 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 08 September 2022 at 11:24am

CATCHWORDS
MIGRATION – cancellation –Temporary Skill Shortage (Class GK) visa – Subclass 482–– breached condition 8607 – beyond his control – Department had cancelled the approved sponsorship – sponsor was reinstated as an approved sponsor – decision under review set aside  

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 1 February 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage 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 because it appeared that he did not comply with condition 8607. 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 Tribunal made the Decision to deal with this case on the papers.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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)(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?

   s 116(1)(b) - non-compliance with conditions

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 condition 8607attached to the applicant’s visa. This condition requires that if the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

8. On the 2 March 2021 Jadoon Group Pty Ltd received approval to nominate the visa holder to work in the occupation of Motor Mechanic (Australia and New Zealand Standard Classification of Occupations (ANZSCO) code 321211.

9. On the 18 October 2021, a delegate from the Australian Border Force (ABF) cancelled the approval of Jadoon Group Pty Ltd as a standard business sponsor under Section 140M of the Act and barred the business for 2 years from making applications for approval as a standard business sponsor. The Decision took effect on the 18 October 2021.

10. Therefore, as a result of the cancellation of Jadoon Group Pty Ltd.’s sponsorship approval on the 18 October 2021, the applicant was no longer employed on the same date, with the sponsor under the Temporary Skill Shortage visa program.

11. The Notice of Intention to Consider Cancellation was issued on the 11 January 2022 from the Department, so a period of 60 days had passed since the applicant was employed by Jadoon Group Pty Ltd. The applicant at that time had not sought to obtain a new nomination by an approved sponsor or that he had applied for a new visa to remain in Australia.

12. The notice was sent on the 11 January 2021 and the applicant’s migration agent responded via email on the 17 January 2021 and the migration agent agreed that the applicant did not comply with visa condition 8607.The applicant’s migration agent did set out some mitigating circumstances but agreed that the applicant had breached the condition.

13. 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 visa should be cancelled.

    Consideration of discretion

14. 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

15. The applicant arrived in Australia and held a Student Visa (Subclass 572). The applicant graduated and was granted a Graduate Visa (subclass 485) on the 13 December 2018.

16. The applicant continued to work in his field as a motor mechanic. On the 14 July 2022 the sponsor was approved by a Decision of the AAT allowing the applicant to resume employment with the approved sponsor. The Tribunal places significant weight on those facts in favour of the applicant’s case.

    the extent of compliance with visa conditions:

17. The applicant had continued to comply with his obligations under the Visa and there is no evidence before the Tribunal that the applicant has not done so. He is now being sponsored by Jadoon Group Pty Ltd. The Tribunal places a lot of weight on those facts in favour of the applicant’s case.

    the degree of hardship that may be caused (financial, psychological, emotional or other hardship):

18. The applicant has been in Australia since 2016 and if the visa is cancelled will lose the opportunity to remain in Australia. He will no longer hold a valid visa and will become an unlawful citizen.

19. If the Visa is cancelled the applicant will have no legal ability to work in Australia and this may cause the applicant financial hardship.

20. The Tribunal places some weight on those facts in favour of the applicant’s case.

    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. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control which the ground of cancellation arose has been remedied:

21. The circumstances were simply that the Department had cancelled the approved sponsorship of Jadoon Group Pty Ltd. The circumstances were indeed out of the control of the applicant.

22. The applicant had indicated that the approved sponsor was appealing the Decision.

23. The sponsor was successful in the appeal and was reinstated as an approved sponsor. The situation has been remedied so the Tribunal is satisfied that the Visa should not be cancelled.

    past and present behaviour of the visa holder towards the department:

24. There is no evidence of any adverse matters concerning the applicant’s behaviour towards the Department.

    whether there would be consequential cancellations under s 140:

25. The circumstances of this case are that there were no consequential cancellations under Section 140 of the Act.

    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:

26. If the visa was cancelled the applicant would become an unlawful citizen and could be liable for detention. The applicant would have limited options in applying for further visas in Australia. The Tribunal places some weight on those facts in favour of not cancelling the visa.

27. 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 (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

28. There is no information available to indicate that the visa cancellation will result in breach of any of Australia’s international obligations.

29. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    decision

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Noelle Hossen
    Member