Mohosin (Migration)

[2019] AATA 3633

Mohosin (Migration) [2019] AATA 3633 (22 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SK Md Mohosin
Ms Halima Tuj Sadia

CASE NUMBER:  1914437

HOME AFFAIRS REFERENCE(S):           BCC2019/535538

MEMBER:Jennifer Cripps Watts

DATE:22 August 2019

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 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 22 August 2019 at 1:57pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased work for nominator – sponsor in liquidation – approved business sponsor – no jurisdiction for second named applicant – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Condition 8107

CASES

Ibrahim v MHA [2019] FCAFC 89
Rani & Ors v MIMA (1997) 80 FCR 379

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 June 2019 made by a delegate of the Minister for Home Affairs (the delegate) 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached a condition of the visa, namely condition 8107(3)(b), that requires that while he holds the Subclass 457 visa, if he ceases to work for the approved nominator, the period must not exceed 90 days before he either returns to work for the sponsor or finds a new sponsor. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

3. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

4. The applicant appeared before the Tribunal on 24 July 2019 to give evidence and present arguments.  He confirmed that the second named applicant, his wife, chose not to attend with him because she was sick.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The applicants were represented in relation to the review by their registered migration agent, Jia Li, Migration Agent Registration Number 0301059. The representative attended the Tribunal hearing.  Extra time was granted to the applicant to provide additional information post-hearing.

6. 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

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): the holder has not complied with a condition of the visa.

8. 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?

9. 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)(b) attaches to the applicant’s visa and requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.

10. The applicant was nominated in the position of Cook (351411) for his Subclass 457 visa by Rose View Corporate Pty Ltd (the sponsor).  The nomination was approved on 21 March 2016 and the applicant’s visa relating to the nomination, and that is the subject of this review, was approved on 26 April 2016 and would have naturally ceased on 26 April 2020. 

11. It was confirmed at the Tribunal  hearing that it is not in dispute that the sponsor went into liquidation on 14 November 2018 and the applicant ceased working for the sponsor from that date. 

12. 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

13. 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’.

14. The Tribunal explained to the applicant at the hearing what the discretionary matters are and they were discussed with him thoroughly.  The Tribunal has had regard to relevant information and documentary evidence and to the oral evidence provided by the applicant.  Mr Li made oral submissions at the end of the hearing and these have also been taken into account in reaching a decision.

    Purpose of the applicant’s travel and stay in Australia and need to remain in Australia

15. The applicant originally came to Australia as a student.  In 2016 he was granted a Subclass 457 visa for four years to work as a cook for the sponsor. 

16. The purpose of the applicant's travel and stay in Australia was, as the holder of a Subclass 457 visa, to work for an approved sponsor in the skilled occupation for which he was specifically nominated. The Tribunal has found that the applicant ceased to work in this capacity no later than 14 November 2018.  The applicant says that he ceased work with the sponsor in November 2018 and did not work until he was granted a Bridging Visa E with work rights relating to the cancellation on 3 June 2019.  While no longer holding a Subclass 457 visa since it was cancelled, the applicant recently had his work rights re-instated and the Tribunal is satisfied that he is working in the occupation of cook for Carson Group Pty Ltd trading as the Australian Hotel in Inverell (Carson Group).   This indicates to the Tribunal that the applicant has and continues to have a consistent intention to work as a cook.

    Extent of compliance with visa conditions

17. The Tribunal is satisfied that the applicant became non-compliant with condition 8107(3)(b) due to matters that were beyond his control.

18. The sponsor was investigated by Australian Border (ABF) and the Australian Securities and Investments Commission (ASIC) and went into liquidation on 14 November 2018.  The applicant presented as a credible person and the Tribunal is satisfied he did not know about the problems in the company until he could no longer work there when it ceased actively operating on 14 November 2018.

19. Other than the non-compliance with condition 8107(3)(b), the Tribunal has no information before it that suggests that the applicant has been non-compliant with any of the visas he has held in Australia.

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

20. The applicant is married.  While he has lived in Australia since 2011, his wife only moved here in 2018.  He said she is very upset by the instability of their visa status and is suffering depression which is causing problems for them. 

21. The applicant is trained as a cook and claims that this is not a highly regarded occupation or one that is in demand in Bangladesh, which the Tribunal accepts.  In regional New South Wales, on the other hand, evidence was provided in the form of a print out from the Department of Industry that the occupation of Cook  is in high demand and that there are many places currently available on the 190 Skilled Occupations List.

22. The Tribunal has balanced these considerations, that is, that it may cause the applicant financial hardship if he had to return to Bangladesh and find work as a cook, whereas in regional New South Wales, there is a ready supply of available jobs and a critical need for skilled cooks.

    Circumstances in which the cancellation arose

23. The cancellation arose because the sponsor went into liquidation on 14 November 2018.  The Tribunal is satisfied that this was entirely beyond the applicant’s control.  The cancellation arose because the sponsor was no longer actively operating a business.

    Past and present behaviour towards the Department

24. There is no information before the Tribunal that the applicant has been unco-operative with the Department.

    Whether there would be consequential cancellations under s.140

25. If the applicant’s visa is cancelled, under s.140 of the Act the visa of his wife, who holds her Subclass 457 visa as a member of the applicant’s family unit, will also be cancelled.  They are married and both citizens of Bangladesh.  There is no reason to think that they would be separated if the visa is cancelled.

    Mandatory legal consequences

26. If the visa is cancelled, the applicant will become an unlawful non-citizen and, if he does not depart voluntarily, may be detained under s.189.  Under s.48 of the Act, he would be unable to lodge another visa application onshore if he does not hold a substantive visa, with some limited exceptions. 

    International obligations, including non-refoulement and best interests of children

27. The applicant made no claim and provided no evidence indicating that he would suffer harm if his visa was cancelled and he had to return to Nepal.  He confirmed at the hearing that he has no children.

28. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

29. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

30. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations.

    Other relevant matters

31. The applicant said at the hearing that he recently responded to an ad for a cook posted by Carson Group to work at the Australian Hotel in Inverell.  He was asked to come for a trial the week before the hearing.  The applicant and his wife drove the eight hours to Inverell so he could do the trial and he worked as a cook for about three or four days.  The company offered him a position and the applicant has provided the Tribunal with a copy of an employment agreement between himself and Carson Group.  Carson Group has entered into an employment agreement with the applicant, signed and dated 24 July 2019.

32. At the hearing on 24 July 2019, the Tribunal was told that Carson Group had not yet applied to be a standard business sponsor but that they were planning to.  The applicant said that as soon as Carson Group had obtained approval as a standard business sponsor, they intended to commence the process of applying for his nomination as a cook, but before they could do that they would need to carry out labour market testing for a period of four weeks, but that because it is a regional area he has been told that they have had a lot of trouble finding any suitable candidates when they have advertised in the past and that it is highly unlikely that suitable candidates for the position of cook will be found.  The Tribunal, in its experience, is aware of problems that regional employers in New South Wales have finding cooks or chefs and understands there is a critical need in many areas.

33. At the end of the hearing, the Tribunal gave the applicant an undertaking not to make a decision in his matter before 23 August 2019.  On 22 August 2019, the applicant provided a ‘Notification of Approval as a Standard Business Sponsor’, on Department of Home Affairs letterhead, dated 8 August 2019, confirming that Carson Group Holdings Pty Ltd has been approved as a standard business sponsor effective until 8 August 2024.

34. The applicant provided a letter dated 28 July 2019, from Carson Group’s accountant Graham Maxwell, stating that he had reviewed the financial position of the company and was of the view that the business ‘has the financial capacity to meet all employment obligations regarding employing the required employee (the applicant) for a period of at least two (2) years’.

35. The Tribunal accepts that Carson Group, on the evidence provided, has a genuine intention to nominate the applicant in the position of cook once they have completed labour market testing.  The applicant is already working for Carson Group.  They are an approved standard business sponsor through to August 2024.  It is the Tribunal’s view, on the evidence, that there is at the least a distinct possibility, in circumstances where the applicant is an experienced and qualified cook and where the nominating business is in a regional area in north-west New South Wales and it is accepted by the Tribunal that Carson Group has the capacity to pay the applicant for two years, that these and other discretionary matters that have been considered weigh strongly in his favour.

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

    DECISION

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

38. The Tribunal has no jurisdiction with respect to the second named applicant.

    Jennifer Cripps Watts
    Member