Naeem (Migration)

[2019] AATA 3993

Naeem (Migration) [2019] AATA 3993 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Naeem
Mrs Iram Jamil
Mr Hashim Naeem

CASE NUMBER:  1830369

HOME AFFAIRS REFERENCE(S):           BCC2015/353617

MEMBER:Karen Synon

DATE:18 June 2019

PLACE OF DECISION:  Melbourne

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 18 June 2019 at 2:36pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Federal Circuit Court Remittal – sponsorship cancelled – delay in finding employer – employed in different skilled occupation – no jurisdiction with respect to other applicants – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 140M
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 July 2015 made by a delegate of the Minister for Immigration and Border Protection 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)(g) on the basis that the standard business sponsorship status of the applicant’s sponsoring employer was cancelled. 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 applicant applied for review of the decision to cancel his visa on 4 August 2015 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

4. The matter was remitted by the Federal Circuit Court of Australia on 24 September 2018 on the basis that it was legally unreasonable for the previously constituted Tribunal to make a decision before a nomination application, which had been pending at the time of the decision, had been determined by the department.

5. 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 Tribunal’s letter sent in accordance with s.359A

6. On 10 April 2019 the Tribunal wrote to the applicants advising that it had information before it that it considers would, subject to any comments or response made, be the reason, or part of the reason, for affirming the decision that is under review.  The applicants were invited to comment on the following information in writing by 24 April 2019:

   Departmental records indicate that:

   ·On 21 July 2016 the Department refused a 457 nomination in respect of you lodged by Kumar Associates Pty Ltd ATF Kumar Associates & Investment Trust.

   ·The Tribunal has further had regard to information contained on the Departmental file records indicating that you are not presently the subject of any approved nomination or applications.

7. The applicants were advised that this information is relevant to the review because if the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists, because that ground does not require mandatory cancellation, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised. In considering its discretion the Tribunal will have regard to the circumstances of the case and consider, among other matters, the purpose of your travel and stay in Australia. Whether you have another approved nomination may form part of this consideration. This is because the Tribunal in exercising its discretion must consider whether your visa should be cancelled and, in doing, will have regard to the circumstances of this case and consider, among other matters, the purpose of your travel and stay in Australia.

8. On 24 April 2019 the applicant submitted the following in response:

   When my 457 visa was cancelled on 28 July 2015 I was granted a BVE with no work rights.  Despite attempts to obtain work rights, I was denied the ability to work by the department who constantly refused my work rights applications.

   The federal circuit court made its decision on 24 September 2018 and determined that the original tribunal decision was affected by jurisdictional error because it was unreasonable for the tribunal not to defer making a decision in my case until after a decision had been made on the new nomination application that had been lodged.

   After the AAT refused my application the new nomination application that had been lodged was also refused.  I finally obtained work rights in December 2018 after the FCC decision.  Prior to this, I was not able to find an employer willing to sponsor me or nominate me for the 457 visa because I had no work rights whatsoever.

   I am not currently the subject of an approved nomination but I am currently talking to a prospective employer who may be willing to nominate me for the 457 visa.  Because such a long period of time has elapsed since my 457 visa was cancelled, any new employer now needs to nominate me under the 482 visa scheme and then to have that nomination joined to my 457 visa proceedings currently before the Tribunal.  As I am not legally qualified, I do not know whether I can have a 482 sponsorship and nomination joined to a pending 457 visa application.  Can you please advise me on this issue.

   I am seeking that the tribunal defer making any decision in my case for at least another 60 - 90 days which should be sufficient for me to have another nomination lodged on my behalf and possibly approved.  I do not think this request is unreasonable given that I was only granted working rights on 20 December 2018 after being unable to work since 28 July 2015 (more than 4 years).

9. The Tribunal has also considered in its decision the submissions made to the department and to the previously constituted Tribunal.

10. The applicant appeared before the Tribunal on 13 June 2019 to give evidence and present arguments.

    Jurisdiction of the secondary applicants

11. 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. The Tribunal explained this at the hearing and the applicant said he understood and did not have any questions about this.

12. 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

13. 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)(g). 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?

14. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994. In the present case, the ground in r.2.43(1)(I)(iv) is relevant.

15. As recorded in the delegate's decision, a copy of which was provided to the Tribunal, the applicant was nominated for a Subclass 457 visa for the position of Cook by Awan and Co Pty Ltd who was at the time of the visa approval on 21 August 2013, a standard business sponsor.

16. Following sponsorship monitoring the department determined that the sponsor had breached its sponsorship obligations and cancelled its approval under s.140M(1)(a) of the Act as a standard business sponsor.  In addition, the department made a decision under s.140M(1)(f) of the Act to bar the sponsor on 29 November 2013 for five years from making future applications for approval as a standard business sponsor.

17. During the hearing the applicant explained that he commenced work for his employer in Adelaide which traded as Green Chillies, in about January 2013 and worked there until approximately September 2013 as a Cook.  He then relocated to Melbourne and from then on worked as a taxi driver and cleaner.  Asked why he relocated to Melbourne when at that stage his evidence was that he didn’t know the employer had closed permanently, he said he had been told by the employer that he bought another branch in Melbourne but when he was in Melbourne he could not find the employer.  Asked when he was told they were opening another branch in Melbourne he said it was a few weeks before they closed in September 2013.  He moved to Melbourne in December 2013.  He has not worked as a Cook since September 2013 when he worked for Green Chillies in Adelaide.  He told the previously constituted Tribunal that when he found his employer had vanished he tried to contact his migration agent who did not respond and also that he was not paid any salary for the time he worked at Green Chillies.  He did not raise these concerns with this Tribunal but it has nonetheless considered these in its decision making but finds they do not impact on the circumstances in which his visa was cancelled.

18. On the basis of the evidence before it, the Tribunal finds the standard business sponsorship of the applicant's former employer was cancelled under s.140M.  This has not been disputed by the applicant at any stage throughout the review.

19. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) and r.2.43(1)(l)(iv) 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

20. 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 applicant’s travel to and stay in Australia

21. The applicant came to Australia in October 2006 as a student.  At the time he arrived he intended to study in Australia and return to Pakistan.  In Australia he completed a Diploma of Hospitality Management and a Diploma of Business Management.  He completed a Bachelor of Commerce in Pakistan.  When he finished his study he decided that Australia was a good place to live so he would try to get a job and give it a try.  He has only held temporary visas here; student visas and the 457.  If he cannot stay in Australia he will return to Pakistan and work with his father in his sporting goods store in his home town of Sialkot.  His younger brother works in his father’s business too.

22. The Tribunal asked the applicant why he stayed in Australia so long after his visa was cancelled in July 2015 and he responded that he stayed because he was expecting to get back into the trade and get a job.  Around the time his employer in Adelaide closed down he returned to Melbourne and has been working as a cleaner and a taxi driver.  Although other nominations have been lodged in respect of him, these were not approved and the applicant’s evidence is that he has not been employed as a Cook since September 2013; a period of over 5½ years.  His work as a taxi driver and a cleaner are not consistent with the purpose of the 457 or the 482 work visa schemes.

23. A 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that an applicant will be able to remain in Australia on a permanent basis.  The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time as a Cook for Awan and Co Pty Ltd and he was granted a temporary visa for that purpose.  This purpose no longer exists.  The applicant’s evidence is that he has not worked as a Cook for over 5½ years except for a brief unpaid trial with Kumar Associates.  As over 5½ years have passed since the applicant ceased employment with Awan and Co Pty Ltd and he has not been, since then, the subject of an approved nomination, the Tribunal has formed the view that the purpose of the applicant’s further stay in Australia is no longer viable and he has no compelling need to stay in Australia.

    The degree of hardship that may be caused by the visa cancellation

24. The Tribunal accepts that the applicant and his family may experience some hardship should they have to return to Pakistan.  He said he has three dependents and there will be financial hardship and uncertainty about his future and it may be hard to find work over in Pakistan as his brother also works with his father.  The applicant and his family have survived without work rights on their savings and by borrowing money.  He has not purchased a house but lives in a share house with friends.  The applicant and his family have always been in Australia on temporary visas and the applicant should not have had any reliable expectation of permanency.  That they have chosen to stay here, including for almost 4 years since the 457 visa was cancelled, was their decision.  Further, the Tribunal notes the applicant’s evidence that he has not been able to work in Australia for a lengthy period of time until provided with work rights on his bridging visa in December 2018 and since then despite these work rights, he has not been able to find employment in his skilled occupation.  Given the applicants stayed in Australia for over 2½ years with no income the Tribunal gives any hardship they may experience on their return to Pakistan little weight.  The Tribunal further notes that the applicant and his wife’s family all live in Pakistan and the applicant has indicated that he can work with his father in his retail business.

    The circumstances in which the ground for cancellation arose

25. The ground for cancellation arose as a consequence of the cancellation and barring of the applicant's sponsor under s.140M of the Act on 29 November 2013.  The sponsor was barred due to a failure to meet its sponsorship obligations.  In this respect, the Tribunal notes that the applicant did not voluntarily cease working with his former sponsor, Awan and Co Pty Ltd and that another employer lodged at least two nominations in respect of him in 2015 and 2016 however these were refused by the department.  The Tribunal accords some weight in the applicant’s favour that he ceased working for his employer, through no fault of his own.

    The applicant’s past and present behaviour towards the department

26. There is no information known to the Tribunal which indicates that the applicant’s past and present conduct towards the department has been unsatisfactory in respect of any other visa he held before the 457 was granted or in relation to bridging visas granted after his 457 visa was cancelled. However the Tribunal maintains serious concerns about the applicant’s failure to report to the department, at any time, that he had ceased employment. It was only after the department sent him the Notice of Intention to Consider Cancellation (NOITCC) of his visa on 7 July 2015; 15 months after he ceased working, that he appears to have made any attempt to find a new sponsor. The Tribunal notes that in the applicant’s response to the department’s NOITCC it was contended that since the day his employer vanished the applicant was looking for sponsorship and a nomination from another employer to safeguard his 457 visa as per the Migration Regulations however this is contrary to the evidence the applicant gave to this Tribunal when he said he was not aware that he had to continue working for the same employer or find a new 457 employer within 90 days and it was his understanding that it was sufficient for him to work for an Australian employer for two of the four-year 457 visa period. Indeed he said that he moved to Melbourne in 2013 and the last time he worked as a cook was for Green Chillies in Adelaide and that after moving from Adelaide his wife became pregnant and she needed some assistance so he was occupied in caring for her. He told the previously constituted Tribunal his wife developed gestational diabetes and that he had been mentally depressed but provided no medical evidence of this and did not repeat these claims to this Tribunal. He did say that he lost track of the time and repeated his understanding that he was confused and did not understand that he needed to be continuously employed to not breach any of the conditions attached to his 457 visa; he did not understand the conditions of his visa. As the Tribunal explained to the applicant in the hearing it is his responsibility to ensure that he understands all of the conditions of any visa he is granted and it is not acceptable that he would cease employment for such a significant period of time and not notify the department about this. The Tribunal accepts the applicant’s evidence that he did not understand his visa conditions and thus does not accept the assertion made by his previous representative to the department that he had been continually seeking another employer. Nonetheless the fact that the applicant did not acquaint himself with his visa conditions and therefore found himself seriously in breach of them is a factor which weighs against him.

    Whether cancellation would result in the visa holder being unlawful and subject to detention

27. The applicant’s visa was cancelled on 28 July 2015 and he now holds a Bridging visa E.  There is no evidence before the Tribunal that cancellation would result in him being subject to detention, or that indefinite detention is a possible consequence of cancellation.  While the Tribunal notes that should it affirm this decision the applicant and his wife and children will become unlawful non-citizens there is no evidence before it to indicate they would not depart Australia voluntarily.  Indeed the applicant volunteered the information that should this review not be successful he would return to Pakistan and work with his father in his sporting goods business.  Further, while s.48 of the Act means the applicant will have limited options to apply for other visas onshore, these are the intended consequences of the legislation when a visa is cancelled under these grounds.  Therefore the Tribunal does not foresee a situation that would result in the applicant’s detention or indefinite detention.

    Whether any international obligations would be breached as a result of the cancellation

28. There is no evidence before the Tribunal regarding this matter.  The Tribunal asked the applicant if he holds any fears should he have to return to Pakistan and he only expressed concern about how his children now aged 3 and 4½ would adjust to life in Pakistan as they were born here.  The Tribunal is of the view that if the applicant held any such fears he would have expressed this given the opportunity to do so.  Further, the Tribunal notes that the applicant and his wife’s family all live in Pakistan and that the applicant has made three trips back to Pakistan during the time he has been in Australia.  His father runs a business in their hometown.

    Consequential cancellations under s.140

29. The Tribunal notes that there are consequential cancellations of the visa for the applicant’s wife and his son as their visas has been cancelled as a consequence of the applicant’s visa cancellation.  However these visas were only granted to his wife and son on the basis of them being family members of the family unit of the applicant and it is not an unintended consequence of the legislation that if the applicant’s visa is cancelled then his family members visas are consequentially also cancelled.  In this respect the consequential cancellations will not result in the separation of the applicant from his family and keeps the immigration status of all family members aligned.  The Tribunal therefore accords this consideration little weight.

1. The Tribunal has taken into account all of the available evidence in this case.  Having considered all the circumstances the Tribunal is not persuaded that it should exercise its discretion not to cancel the visa as it is not satisfied that any of the matters raised by the applicant before this Tribunal, the previously constituted Tribunal or the department or indeed evident on any of the material before it, either individually or cumulatively, is sufficient for the Tribunal to exercise its discretion not to cancel the visa.

2. Finally, the Tribunal has considered the applicant’s request made in writing in response to the Tribunal’s 359A letter and also in his oral submission that it give him “a second chance” to lodge another nomination and have it joined to this application.  In his written submission the applicant highlighted that he was only granted his work rights again in December 2018 after the Federal Circuit Court decision, and that while he was not the subject of an approved nomination, he was talking to a prospective employer who may be willing to nominate him for a 457 or 482 visa.  In his 359A response the applicant asked the Tribunal to delay its decision for another 60 to 90 days for him to have another nomination lodged on his behalf and possibly approved.  He said he did not consider this request to be unreasonable.

3. The Tribunal has carefully considered this request and asked the applicant to explain at the hearing what actions he had undertaken to try to find a new employer and if he did have an employer at that time.  He responded that although he received his work rights in December 2018, because it was a busy time, he did not start looking for a job until 2 to 3 months ago.  Since then he has applied for 8 to 10 jobs and this has involved him either emailing or dropping in his resume for positions he has seen advertised on Gumtree and Seek.com.au.  He has yet to hear back from any of these employers and noted that it has been a long time since he has worked as a Cook.  The Tribunal acknowledges that the applicant has emailed and delivered some resumes for prospective jobs however as his evidence is that none of these employers have contacted him, it is not of the view that it is reasonable to delay the finalisation of this matter on a speculative hope that he may be able to find both an employer and a prospective sponsor within a reasonable time period.  In making this decision the Tribunal notes the applicant himself waited several months after being granted his work rights to start looking for an employer and prospective sponsor and that since December 2018 he has had a period of some six months to try to find a new sponsor.  His own evidence is that he has not worked as a cook for a period of over 5½ years (with the exception of a four-week voluntary trial) and has instead been working as a taxi driver and cleaner; neither of which are skilled occupations for which he could foreseeably gain a sponsor.  The Tribunal also notes that the applicant, after his visa was cancelled, did have a sponsor who made at least two nominations in respect of him but both of these were refused by the department.  Considering all the circumstances of this case, the Tribunal determined not to defer its decision-making process and explained the reasons for this at the hearing.  While not providing migration advice it clarified for him that the 457 and 482 programs are different visa schemes and cannot be joined.

4. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

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

   Karen Synon
   Member