Mohammed (Migration)

Mohammed (Migration) [2019] AATA 3242 (4 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mustafa Hussain Mohammed
CASE NUMBER:  1824684
HOME AFFAIRS REFERENCE(S):          BCC2018/1036297
MEMBER:Amanda Mendes Da Costa
DATE:4 March 2019
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 04 March 2019 at 12:41pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant working outside his nominated occupation of Cook – supplementary work as taxi driver – sponsor underpaid market salary rates – employer’s Business Sponsorship cancelled and barred – family financial hardship – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 2 cl 457.221; Schedule 8; Condition 8107; r 2.79
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 August 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)(aa) on the basis that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist. 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 applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ilyas Mohammed.
The applicant was represented in relation to the review by his registered migration agent.
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
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)(aa). 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?
A visa may be cancelled under s.116(1)(aa) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.
The applicant was nominated for a Subclass 457 visa by a standard business sponsor, Raaz Pty Ltd, to work in the occupation of Cook (ANZSCO code 351411). The nomination was approved on 6 March 2012, and on 8 March 2012 the applicant was granted the visa to work in the nominated occupation for the sponsor. The visa was subject to condition 8107(3)(a)(i) of Schedule 8 to the Migration Regulations 1994 (the Regulations) which required the applicant to work only in the occupation listed in the most recently approved nomination for him.
The applicant was granted a further Subclass 457 visa on 10 December 2017 whilst living in Australia. At the time the visa was granted, cl.457.221 of Schedule 2 to the Regulations required that if the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and with any subsequent bridging visa.
On 29 June 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation of his visa (NOICC). The NOICC alleged that he had breached condition 8107(3)(a)(i) of his first Subclass 457 visa by working outside his nominated occupation of Cook with his sponsor, and so he had failed to meet the requirements of cl.457.221. The Department noted that information available to it indicated that between 8 March 2012 and 25 April 2015 the applicant was working as a taxi driver.
The Department therefore found that the decision to grant the applicant’s visa was based wholly or partly on the existence of a particular fact or circumstance, that is, his compliance with the conditions of his previous Subclass 457 visa, and that fact or circumstance did not exist.
The applicant provided the Department with a written response to the NOICC on 13 July 2018. In that he conceded that he had breached condition 8107 on his previous Subclass 457 visa by working as a taxi driver between 8 March 2012 and 25 July 2014, in addition to his full-time work for his sponsor in the nominated occupation of Cook.
In his response, the applicant provided the following information about the circumstances of failure to comply with condition 8107:
·The applicant worked in a full-time capacity as a Cook with his sponsor whilst driving a taxi on a part-time basis until 25 July 2014, when he voluntarily ceased driving a taxi. The applicant had not operated a taxi since that time and his taxi driver’s licence has expired.
·The applicant’s work as a taxi driver was secondary to his employment as a Cook with Raaz Pty Ltd, which was a genuine position. He remained employed by his sponsor during the period that he was working as a taxi driver.
·The only reason the applicant undertook work as a taxi driver was because Raaz Pty Ltd only paid him $10.00 per hour rather than the $34.00 per hour it was obliged to pay pursuant to the applicant’s employment contract. In order to conceal its breach of its obligation under r.2.79 of the Regulations to pay market salary rates, Raaz Pty Ltd paid the applicant the full amount due under his contract and then required the applicant to return the majority of the wage payment to his employer in cash. In addition to this behaviour, Raaz Pty Ltd often failed to pay the applicant for multiple pay periods.
·Although the applicant was a loyal and diligent employee, his employer did not reciprocate this loyalty.
·The employer’s failure to comply with the provisions of r.2.79 resulted in emotional and financial hardship to the applicant, who was supporting his wife who had moved to Australia in February 2014, and made a substantial financial contribution to the costs of his father’s hip replacement operation. In the absence of the need to support his family, the applicant would not have breached his visa condition and worked as a taxi driver.
·The severity of the applicant’s breach of his visa conditions is low and he did not cease working for Raaz Pty Ltd. He had otherwise been compliant with visa conditions.
·The applicant was in a vulnerable position and was likely not to have been aware of his rights as an employee under the Fair Work Act 2009 (Cth), or alternatively considered he had no other option but to submit to the employment arrangements made by his employer.
·In early 2015 the applicant found a new sponsor, ASIL Trading Pty Ltd, which nominated the applicant as a Cook in its Indian restaurant. The applicant commenced working for this employer when his new Subclass 457 visa nomination was approved in January 2017. Whilst he waited for the new nomination to be approved, the applicant did not work as a taxi driver and supported his family with loans from family and friends.
·When interviewed by Departmental officers, the applicant gave favourable information about the business activities of Raaz Pty Ltd because he was concerned that otherwise his employer would not nominate him for the Employer Nomination Scheme visa. The exploitation of the applicant by his employer should be given significant weight in the decision not to cancel the applicant’s Subclass 457 visa.
·The applicant had been living in Australia for nearly 10 years and has a wife and three daughters, all of whom were born in Australia. If the applicant were required to leave Australia and return to India his wife and children would accompany him. The children would be living in a country with which they were not familiar and the family would face hardship.
·The applicant was an asset to his employers and an interested member of his local community and has complied with Australian laws.
The Tribunal notes that the applicant conceded to the Department and the Tribunal that he breached condition 8107 on his previous Subclass 457 visa by working as a taxi driver between 8 March 2012 and 25 July 2014, in addition to his full-time employment for his sponsor Raaz Pty Ltd, in the nominated occupation of Cook.
The applicant’s migration agent submitted to the Tribunal that the applicant had ceased driving a taxi on 25 July 2014, although his taxi driver’s licence may have expired in July 2015. The Tribunal notes that a letter from the Taxi Services Commission dated 7 May 2015 (folios 24-28 in the Department’s file) with the Commission’s records for the period 8 March 2012 to 28 April 2015 shows that the applicant’s last shift as a taxi driver was 25 July 2014. The Tribunal accepts this evidence.
The Tribunal is satisfied on the basis of the evidence before it that the applicant breached condition 8107 on his previous Subclass 457 visa by working as a taxi driver for the period 8 March 2012 to 25 July 2014.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(aa) exists. As that ground does not require mandatory cancellation under s.116(1)(aa), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
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
The applicant arrived in Australia on 17 February 2008 as the holder of a Student (Subclass 572) visa to study courses in hospitality and business. On 8 March 2012 he was granted a Subclass 457 visa for the purpose of working as a Cook with Raaz Pty Ltd, a standard business sponsor.
Although the applicant was working as a taxi driver during the period March 2012 to July 2014, the Tribunal is satisfied that he was also working in his nominated occupation with his sponsor. He is currently employed as a Cook for a new standard business sponsor, ASIL Pty Ltd, with whom he has been employed since January 2017. The Tribunal is further satisfied that the applicant’s current employment is both full-time and continuing.
The extent of compliance with visa conditions
The Tribunal accepts that for the period between 8 March 2012 and 25 July 2014. The applicant undertook work as a taxi driver in breach of condition 8107, which was sustained for more than 28 months. The Tribunal is satisfied that the applicant’s breach of visa condition 8107 was serious. However, there is no evidence to suggest that there were any other instances of non-compliance with visa conditions and the Tribunal accepts that the applicant ceased working as a taxi driver of his own volition and before action was taken by the Department against his previous employer.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant has resided in Australia for over 10 years and the Tribunal accepts that he has established his life in this country. He has also obtained further employment with a new sponsor and is working in his nominated occupation of Cook.
The Tribunal heard evidence from Mr Ilyas Mohammed, the applicant’s current employer. Mr Mohammed is the proprietor of an Indian restaurant in Shepparton, which specialises in serving a rice dish known as Biryani. The applicant has been employed as a cook in that restaurant since 2017. Mr Mohammed told the Tribunal that the applicant was a very good cook, particularly of Biryani. Mr Mohammed said that this dish is difficult to cook well and he has plans to expand his business, with a new restaurant in the Melbourne CBD. If the applicant’s visa is not cancelled, his employer plans to employ him at this restaurant. If the applicant’s visa is cancelled and he is required to leave Australia, he will lose this employment.
Although the applicant’s family is currently living with his parents-in-law in India, the Tribunal accepts that consequential cancellation would have an effect on his family’s ability to return to live in Australia.
Circumstances in which the ground of cancellation arose
The Tribunal accepts that prior to the cancellation of his visa, the applicant was employed in his nominated skilled occupation of Cook by Raaz Pty Ltd, which was a standard business sponsor and had an approved nomination for the applicant. The applicant’s employment with Raaz Pty Ltd ceased and he subsequently found new employment with ASIL Pty Ltd.
The Skilled visa is a temporary visa which enables the visa holder to remain in Australia temporarily for a period of four years. The applicant’s first Subclass 457 visa was to enable him to be employed in Australia as a cook by Raaz Pty Ltd.
The Tribunal notes that after becoming aware of the applicant working as a taxi driver between March 2012 and July 2014, and interviewing the applicant on 26 February 2015, a delegate of the Minister made a decision on 10 December 2017 to grant the applicant a further Subclass 457 visa. The Tribunal is satisfied that the Department did not consider the applicant’s behaviour sufficiently egregious to warrant cancellation of his previous Subclass 457 visa.
On 6 July 2015 the Standard Business Sponsorship (SBS) of Raaz Pty Ltd was cancelled and it was barred from applying for further sponsorship for a the period 6 July 2015 to 5 July 2020. A perusal of the Department’s files shows that the company’s employment practices with the applicant formed part of the grounds for the decision to cancel the SBS of Raaz Pty Ltd.
The Tribunal further notes that the applicant was granted a further Subclass 457 visa in the context of the Department being aware of his breach of condition 8107 of his previous visa. The Tribunal accepts the applicant’s submission that this consideration should be given significant weight by it in not exercising its discretion to cancel the visa.
Past and present behaviour of the visa holder towards the Department
The Tribunal notes that the applicant has been co-operative towards the Department. The applicant responded to the NOICC in a timely manner and admitted the circumstances in which the ground for cancellation arose. However, it also notes that during an interview with Departmental officers on 26 February 2015, the applicant provided incorrect information regarding the date on which he ceased driving a taxi. The Tribunal asked the applicant whether he told Departmental officers during the interview that he stopped driving taxis in 2012 and didn’t drive a taxi in 2014. The applicant told the Tribunal that he could not remember whether he gave these answers during the interview on 26 February 2015. However he told the Tribunal that his previous employer had telephoned him the day before the interview and asked the applicant not to get him into trouble with the Department. The Tribunal accepts the delegate’s account of the interview and that the applicant gave incorrect answers to questions about when he stopped driving a taxi.
Whether there would be consequential cancellations under s.140
In the event that the applicant’s visa is cancelled, there would also be consequential cancellation of the visas of the applicant’s wife and three children.
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
If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely because as an Indian citizen he will be able to return to India and if the visa is cancelled with return to live with his wife and children. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.
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
The Tribunal notes that the Department’s Procedures Advice Manual 3 (PAM3) provides that if there are children in Australia whose interest could be affected by the cancellation, or who would themselves be affected by the cancellation, a decision maker is obliged to treat as a primary consideration the best interests of the children. The Tribunal notes that the applicant’s wife and children have been living in India with family members for the past 12 months. Whilst the Tribunal has taken into account the best interests of the children, it has not considered it as a primary consideration, given that the applicant’s family are not currently in Australia.
Any other relevant matters
The Tribunal has been provided with written references from Mr Asrar Mohammed, the President of the As-Sabiqoon organisation and Mr Sayeed Aslam, the Secretary of the Humwatan Australian Community Organisation (HACO). As-Sabiqoon provides assistance to migrants and students from overseas, arranges cultural activities for children and provides cultural learning classes for women. In his reference dated 15 January 2019, Mr Asrar Mohammed attests to the applicant’s participation in the organisation’s activities.
HACO is an organisation which provides assistance with the cost and arrangements for funerals of its community’s members. In his reference dated 19 January 2019, Mr Aslam attests to the applicant’s active involvement in events organised by HACO, and that he has provided practical and emotional support to families who are members of the community and with the cost and arrangements of funerals.
Considering the circumstances as a whole, and particularly the Department’s decision to grant the applicant a further Subclass 457 visa for his current employment, the circumstances of the visa cancellation, the applicant’s current employment with ASIL Pty Ltd which is continuing and the fact that the applicant has not breached any visa conditions since 2014, the Tribunal concludes that the visa should not be cancelled.
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.
Amanda Mendes Da Costa
Member

[2019] AATA 3242

4 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice