Mohammed (Migration)

[2020] AATA 5926

Mohammed (Migration) [2020] AATA 5926 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ziauddin Mohammed
Mrs Mohammadinishathsabera
Miss Zaina Anam Zia
Miss Roha Ziram Zia
Miss Mysha  Afaaf Zia

CASE NUMBER:  1935116

HOME AFFAIRS REFERENCE(S):          BCC2017/3704871

MEMBER:John Cipolla

DATE:29 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

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

Statement made on 29 October 2020 at 5:30pm

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa– Subclass 187 – Restaurant Manager – employment terminated within the required employment period of 2 years– cessation of employment without cause or reason by nominating employer – applicant made a genuine effort to remain employed for the required period – medical condition of child – decision under review set aside

LEGISLATION
Migration Act 1958, ss 137T,137Q,348
Migration Regulations 1994, rr 2.50AA

CASES
Drake v MIEA (1979) 24 ALR 577
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 December 2019 to cancel the first named applicant’s (hereinafter referred to as the applicant) a Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had commenced employment relevant to the employer nomination with his nominating business Harrisons On Terrigal (Harrisons) and that his employment was terminated inside a period of two years, and that it appeared no genuine effort had been made by the applicant to engage with that employment for the two years specified. The requirement for cancellation under s.137Q arises if the employment is terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the visa holder on 16 October 2019 inviting him to comment on information before the Department that the applicant’s employment with Harrisons was terminated within the specified two-year period. The applicant was invited to comment on whether he agreed the ground for cancellation existed and whether, having regard to relevant discretionary factors, his visa should be cancelled.

4. The applicant provided responses to the NOICC in submissions dated 10 and 13 November 2019. In the submissions the applicant provided a brief timeline of his time in Australia, including his entry as a student visa holder in 2009. The applicant made reference to his employment with Harrisons commencing in January 2015 on a part time managerial basis, his commencement in a full-time managerial capacity beginning in August 2016 through to his application and the grant of a Subclass 187 visa on 06 July 2016.

5. The applicant advised that he had been outside of Australia at the time of visa grant and that upon return he was informed, without any notice, that his employment with Harrison’s had been terminated. The applicant advised that he attempted to procure full time employment in the same regional area as Harrisons but due to his wife’s pregnancy in February 2017 was forced to take the first job available, which was locally in Sydney as a taxi driver. The applicant advised that his wife gave birth to twins in September 2017 and that one of the twins was born with a very serious medical condition ‘bladder exstrophy and epispadias’ which has since required significant ongoing medical attention. It was claimed by the applicant that the fact that he was the sole provider for his wife and five children put significant pressure on him to take the first job available, that this work was flexible, local and enabled him to be on hand for the care of his children. The applicant had believed this factor should be taken into account when considering whether or not to cancel his visa.

6. On 11 December 2019 the delegate proceeded to decision. The delegate had recourse to all information on the Departmental file, including the applicant’s response to the NOICC. When looking at whether the employment was commenced and terminated within the period stipulated by s137Q(2)(a), the delegate noted information before the Department indicated that a notice of termination was given 11 July 2016 and was effective 01 October 2016 and that no additional evidence had been provided of communications between the applicant and their employer regarding the termination, and that the applicant had not made an effort to inform the Department of the change in his employment status. The delegate deemed that the employment was not commenced and was terminated inside a period of two years. Regarding whether there was genuine effort to be engaged with that employment for the required period, the delegate noted that the applicant was overseas at the time of the visa grant, that he was purported to have informed his employer of a delay in return, receiving no response, and was terminated by telephone on his return to Australia. The delegate deemed that no evidence had been provided by the applicant, in contravention of existing information before the Department, demonstrating that he had made a genuine effort to engage in the stipulated employment for the required period of time.

7. Having found the grounds for cancellation were made out, the delegate proceeded to consider relevant discretionary factors. When looking at the purpose of the applicant’s travel to Australia, the delegate noted the applicant’s history as a student, the arrival of his wife and children in 2012, the grant of his Subclass 187  visa in 2016, subsequent employment as a taxi driver and deemed that the likely purpose was to migrate permanently, thus lending some weight against cancellation. When looking at the extent of compliance with visa conditions, the delegate noted that there were no conditions attached to the visa but that the applicant had not completed the required employment period in his nominated position, thereby giving some weight in favour of cancellation. In consideration of the degree of hardship which might result from cancellation, the delegated noted the applicant’s wife and five children, two Australian citizens, and considered that the children in particular had spent considerable portion of their lives in Australia and would be adversely affected. The delegate drew particular attention to his son Mohammed who requires ongoing and significant medical care and is on the waiting list for major surgery, and so gave significant weight to this factor against cancelling the visa. The delegate then examined the circumstances under which the grounds for cancellation arose, noting the applicant’s overseas travel, grant of the Subclass 187  visa and purported cancellation without notice, but noted that the applicant had provided no evidence to substantiate his version of events and gave this consideration some weight in favour of cancelling the visa. Regarding the behaviour of the applicant towards the Department, the delegate gave a little weight against cancellation and noted the impact on the applicant’s family with respect to what further cancellations may result from a decision to cancel the visa. With regard to any mandatory legal consequences that would result from cancellation of the visa, the delegate determined that they would be liable for detention under s189, removal under s198, and subject to s48 and PIC 4013 which would restrict their options for visa applications and gave the applicant a little positive weight on this factor.  In considering non-refoulement obligations the delegate observed that the applicant, his wife and three of his children were Indian citizens and this would not lead to a breach of non-refoulement obligations. The delegate also had regard to Australia’s international obligations, particularly with reference to the Convention on the Rights of the Child, finding that although the family unit would not be separated as a consequence of the cancellation, difficulty would result pending medical considerations for the youngest son and gave significant weight to this consideration against cancellation. Ultimately, the delegate found that the factors for cancellation outweighed all other considerations and the visa was cancelled accordingly.

8. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the other applicants.

9. The applicant appeared before the Tribunal on 14 October 2020 to give evidence and present arguments.

10. The applicants were represented in relation to the review by their registered migration agent.

    RELEVANT LAW

11. Subsection 137Q(2) of the Act states:

    Employment terminates within 2 years

    (2)  The Minister may cancel a regional sponsored employment visa held by a person if:

    (a)  the Minister is satisfied that:

    (i)  the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and

    (ii)  the employment terminated within the period (the required employment period ) of 2 years starting on the day the person commenced that employment; and

    (b)  the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.

12. The period prescribed by the regulations is defined in r.2.50AA(1):

    For section 137Q of the Act, each item in the table sets out:

    (a)  a kind of visa that is a regional sponsored employment visa; and

    (b)  the period within which a holder of a visa of that kind must commence the employment referred to in the employer nomination.

    …

2 Subclass 187 (Regional Sponsored Migration Scheme) visa If the holder was in Australia on the date of grant of the visa, 6 months from the date of grant of the visa If the holder was not in Australia on the date of grant of the visa, 6 months from the date the holder first entered Australia as the holder of the visa

1. The Tribunal will ordinarily apply lawful government policy unless there are cogent reasons against its application: Drake v MIEA (1979) 24 ALR 577 per Bowen CJ & Deane J at 590, Re Drake and MIEA (No. 2) (1979) 2 ALD 634 per Brennan J at 645. The relevant policy when cancellation is being considered under s.137Q is set out in the Department’s Procedures Advice Manual 3 (PAM3):

2. The policy guidelines make reference to the following considerations:

   ·if there are children whose interests would be affected by cancellation, or consequential cancellation under s 137T, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (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].)

   ·the circumstances leading to the grounds for cancellation

   ·the visa holder’s current and past behaviour in relation to the Department, such as the truthfulness of statements made to officers or in applications under consideration by the Department

   ·the links to the community the visa holder may have. This can include the strength of family, social, business and other ties in Australia. Strong ties to regional Australia and continued employment in that area may also be given special consideration

   ·the length of any period of employment with the sponsor, including any previous employment with the sponsor whilst the visa holder was on a temporary visa

   ·the degree of hardship that may be caused to the visa holder and any members of their family unit

   ·any other relevant matters.

3. 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

4. The applicant was nominated for his Subclass 187 visa by Harrisons on Terrigal.  His Subclass 187 visa was granted on 6 July 2016.  It is not in dispute that the applicant was employed by the nominator at the time the visa was granted.

5. The evidence before the Tribunal indicates that the applicant commenced working for Harrisons on a part time basis as a Restaurant Manager from January 2015 through to August 2015 at which time the applicant lodged an application for a Subclass 187 visa.  The applicant then commenced working for Harrisons on a full-time basis from 8 August 2015.

6. The evidence before the Tribunal indicates that the applicant travelled to visit his family in India on 22 June 2016 and that he was expecting to return to Australia on 2 August 2016. The applicant was notified about the grant of his Subclass 187 visa on 6 July 2016, whilst he was in India. The applicant extended his stay in India after the grant of the visa in order to make arrangements to travel to Australia with his family as he was required to enter Australia by 2 September 2016. The applicant arrived with his family in Australia on 29 August 2016. The applicant claims that he kept his employer appraised of these arrangements.

7. The applicant attempted to continue with his employment on 31 August 2016 with Harrisons, upon returning to Australia, but was advised that his employment has been terminated, some 5 days after the grant of his visa. The applicant claims that the first he knew about the termination of his employment was when he attempted to resume his position on 31 August 2016. The applicant claims that his employer refused to allow him to resume duties, that his employer gave him no reasons for the cessation of his employment and that despite his best efforts to argue for the retention of his position the request was refused.

8. The applicant provided evidence to both the Department and the Tribunal which indicates that the applicants sponsoring employer had an unsatisfactory history of employer and employee relations. To corroborate this the applicant provided copies of media reports. The applicant submitted a copy of a Daily Telegraph article dated 11 April 2019 which indicates that the proprietor of Harrisons had a public slanging match with his head chef in front of shocked diners that culminated in the chef being sacked. The applicant provided evidence to the Tribunal that the restaurant has since ceased trading.

9. At hearing before the Tribunal, the applicant gave evidence that he was advised 7 months after he commenced employment with Harrisons that they were happy with his skills as a Restaurant Manager and they were willing to sponsor him for the Subclass 187 visa.  The applicant confirmed that at the time he returned to India he had been given permission to do so by his employer for a period of 6 weeks and confirmed that the visa grant occurred whilst he was in India, so he sought additional time to tie up loose ends in India and make arrangements to travel back to Australia with his wife and children. 

10. The applicant advised that when he was told by the owner of Harrisons that he could not re-commence employment when he returned to Australia, he questioned the decision noting he had a wife and family to support and this put him in a vulnerable position. The applicant stated that he made a number of visits to his sponsoring employer in order to commence his employment with Harrisons, but his advances were rejected by the business owner.

11. The applicant asserts that it is inexplicable that the sponsoring employer would terminate his employment on 11 July 2016 (advising it would take effect from 1 October 2016) some 5 days after the grant of the Subclass 187 visa. The applicant states that he held the belief that his employment after the visa grant would continue for at least two years as he had been the subject of ongoing employment with Harrisons since January 2015 and that this employment would continue after the grant of the 187 visa, as he would be covered by the new contract of employment.

12. The applicant states that he made a concerted effort to commence the employment with the nominating employer after the grant of the Subclass 187 visa, but the employer was unreasonable, would not enter into any discussion and did not provide any reason for the cessation of employment. The applicant further argues that later media reports about clashes with the owner of Harrisons and key staff confirm the challenges that he faced. One such article provided noted that “in a screaming match that would make Gordon Ramsay proud, the owner of a Central Coast restaurant sacked his head chef and at least one staff member in front of shocked diners on Sunday.” The article goes on to say that “during our meal we heard loud yelling and countless swear words being dropped within the kitchen.” (Central Coast Gosford Express Advocate 11 April 2019). The same article noted that “a police spokesman said officers attended and found the altercation stemmed from a dispute between staff and the owner over staffing levels and working conditions.”

13. The applicant advised at hearing that he then made a concerted effort to find work on the Central Coast as a Restaurant Manager after his termination from Harrisons and that he responded to advertisements and sent out his resume to a large number of hospitality businesses on the Central Coast, to no avail. The applicant stated that as he had a wife and young family to support, in order to support them he had to take whatever work he could, after his attempts to find work as a Restaurant Manager did not yield results.  To this end the applicant took work as a Taxi Driver. 

14. The applicant also provided evidence that his wife fell pregnant with twins within 4 months of the family arriving back in Australia. The pregnancy was very complicated the babies were born 7 weeks early and spent an extended period in neo-natal intensive care. The applicant also advised that his baby son was born with bladder exstrophy which will require multiple surgeries and significant medical oversight. The applicant stated that his wife’s complicated pregnancy and the health issues impacting upon the twins, compromised his ability to find and indeed sustain work in the hospitality sector on the Central Coast and that this led to him having to remain in Sydney where he had flexible work as a taxi driver.

15. It is not in dispute that the applicant ceased his employment on 31 August 2016.

16. The Tribunal finds that the applicant’s employment terminated within the period of 2 years from the commencement of the employment referred to in the relevant employer nomination. Accordingly, the Tribunal finds that s.137Q(2)(a) of the Act is met.

17. The applicant provided the following documents to the Tribunal:

    ·A pre-hearing submission from the applicant dated 7 October 2020;

    ·A statutory declaration from the applicant dated 12 November 2019;

    ·A discharge referral note, from Royal North Shore Hospital pertaining to the applicants wife’s emergency caesarean section;

    ·A medical report from Royal North Shore Hospital pertaining to the premature birth and medical complications of the applicant’s twins dated 13 September 2019 along with a neonatal discharge summary;

    ·Medical evidence pertaining to the applicant’s Australian citizen son Mohammed from Prince of Wales Children’s Hospital Randwick dated 11 November 2019;

    ·A letter dated 6 October 2020 from a Consultant Physician, Dr Ashish Jiwane, a paediatric surgeon and urologist at Prince of Wales Children’s Hospital Randwick advising that due to the applicant’s Australian citizen son, Mohammed’s ongoing medical issues with his bladder, he needs to live close to a major teaching hospital with a multi-disciplinary team and paediatric urologist for the first few years of his life;

    ·Various newspaper articles pertaining to Harrisons on Terrigal.

1. The applicant as noted claims that he had worked for his nominating employer for an extended period of time. The applicant then took leave with consent, had signed a new contract of employment which was to take effect upon grant of the Subclass 187 visa, and that he took leave prior to visa grant, with his employer’s consent. The leave was to enable the applicant to visit his family in India, namely his wife and children. As it turned out the Subclass 187 visa was granted to the applicant whilst offshore in India on 6 July 2016. The applicant then extended his stay in India to enable him to organise for his family to accompany him back to Australia. The applicant claims this was with the consent of his employer. 

2. The applicant then returned to Australia and was ready to re-commence his role of Restaurant Manager for Harrisons on 31 August 2016, but his employer advised his employment had been terminated, and despite his best endeavours to understand why, and to commence employment, these attempts were thwarted. The applicant did not receive any explanation of the grounds of termination. The applicant has claimed that his nominating employer was erratic and unpredictable and to corroborate this has provided newspaper articles which appear to support the applicant’s assertions in this respect.

3. The evidence indicates that the applicant was sent a termination notice, 5 days after visa grant, on 11 July 2016, which advised that he was terminated with his last day at work being 1 October 2016. The applicant claims and the Tribunal accepts that as he was overseas, he did not receive this letter.

4. The evidence indicates that the applicant also sought legal advice about his predicament through a migration agent and was advised to do his best to find work on the Central Coast of NSW in a similar occupation. The applicant has advised in his evidence and the Tribunal accepts that the applicant made a concerted effort to do so but this did not yield success.  The applicant had a wife and young children to support and his wife within 4 months of the family’s arrival back in Australia, fell pregnant with twins, a pregnancy that was complicated and difficult.  The applicant then had to deal with the premature birth of his twins, with his twin son Mohammed having significant and ongoing medical issues.  This necessitated the applicant having to engage with major paediatric hospitals, in order to rectify these medical issues and the Tribunal accepts the medical advice that the applicant has been required to remain in Sydney, close to a major children’s hospital, until his son is better.

5. Given the evidence provided, the Tribunal accepts that the applicant ceased his employment due to the cessation of his employment without cause or reason by his nominating employer. The Tribunal finds that the applicant “has made a genuine effort to be engaged in that employment for the required employment period”. Accordingly, the Tribunal finds that s.137Q(2)(b) of the Act is not met.

6. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.137Q(2) exists. It follows that the power to cancel the applicant's visa does not arise.

7. If the Tribunal was required to consider the relevant considerations pertaining to whether or not the visa should be cancelled, significant weight in favour of not cancelling the visa would be apportioned to the fact that there are two Australian citizen infant children of the applicant whose interests would be substantially affected by cancellation or consequential cancellation under s 137T, particularly his son Mohammed, who suffers with substantial and ongoing medical problems that have been able to be adeptly managed in Australia  . The policy considerations in this respect are deemed to be a primary consideration as to whether or not the visa should be cancelled.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

   John Cipolla

   
   

   Senior Member