Naqvi (Migration)

[2020] AATA 56

Naqvi (Migration) [2020] AATA 56 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Arif Hussain Naqvi
Mrs Husn E Zehra Naqvi

CASE NUMBER:  1902164

HOME AFFAIRS REFERENCE(S):          BCC2016/774729

MEMBER:Antonio Dronjic

DATE:6 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 06 January 2020 at 2:49pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Business (Long Stay)) – ceased employment for more than 90 days – sponsor in voluntary liquidation – opportunity to rectify – no hardship – no jurisdiction in relation to second applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

CASES

BCR16 v MIBP (2017) 248 FCR 456
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
Re Drake (No. 2) (1979) 2 ALD 634

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 April 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) 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 first named applicant (the applicant) breached condition 8107(3)(b) of Schedule 8 to the Migration Regulations 1994 (the Regulations), as the period during which the applicant ceased employment exceeded 90 consecutive days. 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. 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.

   Background to the cancellation of the applicant’s visa

4. The decision record of 21 April 2016 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 8 August 2012, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 8 August 2016;

   ·The standard business sponsor who most recently nominated the applicant to work as a cook was Sumit Enterprises Pty Ltd ATF Washwa Family Trust (the sponsor);

   ·On 18 September 2015, the sponsoring business went into voluntary liquidation and on the same day the applicant ceased his employment with the sponsoring business;

   ·A notice of intention to consider cancellation (NOICC) was issued on 5 April 2016;

   ·On 19 April 2016, the applicant responded to NOICC;

   ·On 21 April 2016, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa;

   ·On 26 April 2016, the applicant applied to the Tribunal (differently constituted) for review of the Department’s decision;

   ·On 3 February 2017, after conducting a hearing on 11 October 2016, the Tribunal affirmed the decision under the review;

   ·On 3 April 2018, the Federal Circuit Court remitted the matter to the Tribunal on the basis that the Tribunal applied the wrong test as to whether Australia would or may be in breach of its international obligations if the applicants’ visas were cancelled and they were returned to Pakistan. The Court found that the correct test is whether the applicants would face a real chance of persecution and not whether they were likely to face persecution;

   ·The Department appealed the Federal Circuit Court decision to the Federal Court;

   ·On 28 November 2018, the Federal Court dismissed the appeal; and

   ·The matter was constituted to the current Tribunal on 11 November 2019.

5. On 19 November 2019, the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 16 December 2019.

6. The applicants appeared before the Tribunal on 16 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi/Hindi and English languages.

7. At the commencement of the hearing, the Tribunal explained to the applicant that, although the Tribunal on remittal must reconsider the matter afresh, given the administrative nature of the proceedings, it is nevertheless entitled to have regard to what has previously taken place at the prior Tribunal hearing.[1] This includes any record of evidence taken in the proceeding.

   [1] SZHKA v MIAC (2008) 172 FCR 1 at [37]; SZLOR v MIAC [2008] FMCA 1165 (Nicholls FM, 25 August 2008) at [54]. Note that s.19D(4) of the AAT Act as inserted by item [27] of the Tribunals Amalgamation Act 2015 (No.60 of 2015) states that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of evidence taken in the proceeding).

8. The Tribunal also indicated that it listened to the audio recording of a hearing held by a Member prior to the reconstitution of the Tribunal and that a summary of oral evidence given by the applicant is accurately summarised in the Tribunal’s decision of 3 February 2017 (Matter no 1605825).

9. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8107, to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicant.

10. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

11. The applicant is 40 years of age and a national of Pakistan. He is married and has a four-year-old child. His parents, two brothers and two sisters live in Karachi, Pakistan and neither he nor his wife has any relatives in Australia. Both of his brothers are employed and his father recently retired after working at a factory in Karachi for more than 30 years. The applicant owns some land in Pakistan. Being the oldest of three sons, his father transferred this land on his name.

12. Last time the applicant travelled to Pakistan for a period of six weeks was in 2013. He keeps regular telephone contact with his family in Pakistan.

13. The applicant’s wife has two sisters and three brothers living in Pakistan and all of them are studying. Her father works at Pakistani Taxation Office. The applicant and his wife married in Pakistan in 2011. She first came to Australia in March 2014.

14. Prior to arriving in Australia as the holder of a Student visa in August 2008, he completed a Bachelor of Commerce degree at the University of Karachi and worked as a computer operator for a shipping company for the period of three years.

15. After arriving in Australia, he enrolled in an advanced diploma of commercial cookery at the Technical Institute of Victoria. He graduated with the advanced diploma in 2011.

16. He was granted a Subclass 457 visa on 8 August 2012, based on the sponsorship and nomination made by Sumit Enterprises Pty Ltd. This entity operated two restaurants, one in Altona and the other in Werribee. He mainly worked at the Werribee restaurant and was paid an annual salary of $52,000.

17. The applicant confirmed in his evidence that he received a copy of a Subclass 457 visa grant letter from the Department which contained an explanation of the conditions imposed on his visa. He stated that he only noted that the visa was granted for a period of four years and did not pay much attention to the explanation of conditions that the visa was subject to.

18. He stated in his evidence that he ceased employment at the sponsoring business in September 2015. He conceded that the period during which he ceased employment exceeded 90 consecutive days. He stated that in August 2015, his wife had complications after the caesarean procedure and that he assisted her to recover from those complications.  The applicant stated that he started looking for new employment after his visa was cancelled but was unable to find the new sponsor willing to nominate him for the position.

19. The applicant stated in his evidence that in March 2017, he was granted a bridging visa ‘E’ by the Department that is subject to the 8101 condition (no work). Neither he nor his wife worked in Australia since that time.

20. The Tribunal enquired as to whether the applicant contacted the Department and/or applied to have a ‘no work’ condition removed from his bridging visa. The applicant stated that he briefly had permission to work in 2016, but the Department refused his subsequent requests.

21. The Tribunal enquired as to how the applicant and his family are able to financially support themselves considering that neither the applicant nor his wife had worked since March 2017. The applicant stated that for more than two years they have been living at his friend’s house (Asif Jafri’s house) and are not required to pay rent. He further stated that he is receiving financial assistance from Pakistan from his father and his father-in-law. He claims that they send him money through mutual friends who travel to Australia and sometimes by transfers to his bank account.

22. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that he breached the condition 8107 that was imposed on his Subclass 457 visa, as the period during which he ceased employment exceeded 90 consecutive days, and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

23. The Tribunal invited the applicant to bring to its attention any matter he considers relevant to the Tribunal’s consideration as to whether the visa should be cancelled.

24. The Tribunal noted that during the hearing held on 11 October 2016, the applicant stated that, as a Shia Muslim, his family might be subject to harassment and persecution in Pakistan and that, if he was to return to Pakistan, he would fear for his life and that of his family. The Tribunal asked the applicant if he had applied for a protection visa in Australia.

25. The applicant stated that he did not apply for a protection visa because he was concerned that if granted a protection visa, he, his wife and son would not be able to travel to Pakistan to see their family and relatives living there. He stated that he is only asking for some sort of working visa that would enable him to stay and work in Australia and travel to Pakistan when needed.

26. The Tribunal spent considerable time explaining to the applicant that it does not have a power to grant him ‘some kind of work visa’ or give him permission to work.

27. The Tribunal noted that in his evidence he stated that he does not want to apply for a protection visa because he would not be able to travel to Pakistan. This is inconsistent with his statement that he would fear for his life and that of his family if he goes back to Pakistan.

28. The Tribunal asked the applicant if there is anything else that he wants to raise with the Tribunal and the applicant indicated that he would like to stay in Australia as he would like to provide a better life for his family and in particular his son.

29. 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

30. 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?

31. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8107 is attached to the applicant’s visa. The condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 90 consecutive days.

32. As noted above, condition 8107 was attached to the applicant’s visa, which was granted on 8 August 2012, and which, but for its cancellation, was valid to 8 August 2016.

33. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 18 September 2015. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly, the Tribunal finds that the review applicant did not comply with condition 8107(3)(b).

34. 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 power to cancel the visa should be exercised.

    Consideration of discretion

35. 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’.

36. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[2] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[3]

    [2]    See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634.

    [3]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].

37. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    The purpose of the visa holder’s travel to and stay in Australia

38. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

39. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a cook on a temporary basis. The applicant ceased his employment on 18 September 2015 because the business operated by the sponsor vent into voluntary liquidation.

40. The applicant decided to remain in Australia. The Tribunal accepts that the applicant attempted to find new employment as a cook but was not successful. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.

41. The Tribunal further finds that the applicant’s Subclass 457 visa would, but for the cancellation, have ceased on 8 August 2016 in any case. 

42. As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor on 18 September 2015.  The Tribunal gives significant weight to this consideration.

    The reason for and extent of the breach

43. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in September 2015. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that nominated him for the position of a cook within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’.

44. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor to successfully nominate him to work as a cook. The Tribunal finds that the applicant’s failure to commence employment with a new business that successfully nominated the applicant to work as a cook after more than four years since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

45. The applicant lost his job when the sponsoring business went into voluntary liquidation on 18 September 2015. The Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond his control; nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

46. The applicant ceased employment at the sponsoring business on 18 September 2015. The Department did not proceed with the visa cancellation until 21 April 2016. In his evidence that applicant stated that he started searching for a new employer after his wife had recovered sufficiently from her delivery complications. The Tribunal accepts that, for this reason, the applicant started his search for a new employer in October 2015.

47. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with an alternative business sponsor who successfully nominated the applicant for the position within their business.

    Past and present conduct of the visa holder towards the Department

48. There is no evidence before the Tribunal that the applicant previously breached visa conditions or that he was not co-operative with the Department.

    Degree of hardship that may be caused to the applicant

1. At the hearing held on 11 October 2016, the applicant claimed that the visa cancellation would cause hardship to himself and his family as he might not be able to find employment in Pakistan and would struggle to support his family and pay his debts. He also stated that he did not want to raise his son in Pakistan because there were fewer opportunities for his son in Pakistan. He further stated that employment opportunities in Pakistan are limited and the salaries are lower than in Australia and that the lack of employment opportunities was the primary reason he left Pakistan.

2. He stated that he has lived in Australia for eight years and acquired cooking skills, and that ultimately, he wants to open his own restaurant in Australia. He stated that his son should be raised in Australia and not in Pakistan. Australia is a safe country that would offer more opportunities to this son. Further, he did not want his son to grow up as a ‘hardliner’ in Pakistan.

3. During the hearing held on 16 December 2019, the applicant reiterated that he would like to stay in Australia because he would like to provide a better life for his family and in particular his son.

4. The Tribunal accepts that the applicant has been living in Australia since November 2010 and has completed various educational courses. It accepts that the applicant would like to stay in Australia with his wife and child. The Tribunal further accepts that employment opportunities in Pakistan are generally more limited than in Australia, and that average incomes in Pakistan are lower than in Australia. 

5. The Tribunal accepts that the applicant’s son will likely be afforded more opportunities in Australia than in Pakistan. The applicant’s evidence about the risk of his son growing up to be a ‘hardliner’ in Pakistan was vague. The applicant did not say why his son might become a ‘hardliner’ if raised in Pakistan. The Tribunal infers that the reason is that he and his family are Shia Muslims. There is no evidence before the Tribunal that that all Shia Muslim children growing up in Pakistan are destined to become ‘hardliners’, or that all Shias raised in Pakistan are hardliners. The applicant did not explain why his son was particularly at risk of such a fate.

6. The Tribunal has taken into consideration the applicant’s evidence that both his and wife’s siblings and parents live in Pakistan and that neither the applicant nor his wife has any relatives in Australia. The Tribunal considered the applicant’s evidence that he completed Bachelor of Commerce degree in Pakistan and worked as a computer operator for a shipping company for the period of three years. The Tribunal considered the applicant’s evidence that he owns land in Pakistan.

7. Although the Tribunal accepts that the applicant and his family may suffer some hardship if required to return to Pakistan, the Tribunal is satisfied that the applicant would be able to re-establish himself in Pakistan, given his family composition, property ownership in Pakistan, education and work experience obtained in Australia and Pakistan.

8. Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently.  

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

9. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

10. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 of the Regulations prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

11. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as he breached the 8107 condition imposed on his visa. Relevantly, public interest criterion (PIC) 4013(2)(b) of Schedule 4 to the Regulations prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

    Whether there would be consequential cancellations under s.140

12. Whilst the applicant’s wife’s visa was also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his wife. The Tribunal notes that the applicant’s child is not included in the review application.

13. However the applicant’s wife was only granted a Subclass 457 visa on the basis of her being the applicant’s family member 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. The Tribunal therefore accords this consideration little weight.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

14. 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).

15. ‘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.

16. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

17. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for a protection visa by s.48A of the Act, or from being granted one because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456.

18. The Tribunal has considered whether the applicant’s circumstances may engage ‘non-refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s.36 of the Act. It has also considered claims of harm against which a protection visa would not provide protection (see BCR16 and Goundar v MIBP [2016] FCA 1203).

19. Apart from stating that he is a Shia Muslim, the applicant could not cite a specific threat to his safety or reasons why he or his immediate family would be targeted for harassment in Pakistan. He did not claim that he and his immediate family members have been threatened or targeted in the past. He stated that the primary reason he came to Australia was due to the lack of employment opportunities in Pakistan. Even if the Tribunal accepts that there is a lack of employment opportunities in Pakistan compared to Australia, the Tribunal is not satisfied that would amount to a real risk of significant harm as the Tribunal has found that the applicant would be able to re-establish himself in Pakistan given his family composition, property ownership in Pakistan, education and work experience obtained in Australia and Pakistan.

20. The Tribunal accepts that Shia Muslims are a minority in Pakistan and that, according to the Department of Foreign Affairs and Trade (DFAT) reports, most Shi’a in Pakistan face a low risk of sectarian violence[4]. The Tribunal is not satisfied that a low risk of sectarian violence in Pakistan against Shia Muslims would amount to a real chance of serious harm or real risk of significant harm.

    [4] Department of Foreign Affairs and Trade DFAT Country Information Report: Pakistan 20February 2019 at 3.111

21. For the reasons above, considered individually and cumulatively, the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Pakistan on any of the grounds advanced now or in the reasonably foreseeable future, or a real risk of significant harm if removed from Australia to Pakistan. Accordingly the Tribunal is not satisfied that the applicant’s removal from Australia would be in breach of its non-refoulement obligations under relevant international agreements if his visa is cancelled. 

22. At hearing the applicant spoke of his four years old son and argued the visa cancellation and move to Pakistan would have an adverse effect on him. As a signatory to the Convention of the Rights of the Child (CROC) Australia has certain obligations, including the best interest of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16). 

23. The applicant stated that he would prefer to raise his child in Australia because of schooling, greater opportunities and lifestyle. The applicant’s son is four years of age and has spent his entire life in Australia with his parents. He is a Pakistani national holding a Pakistani passport. His uncles, aunties and grandparents live in Pakistan.

24. The Tribunal accepts the child may face some hardship if the visa is cancelled because Shia Muslims are a minority in Pakistan and face a low risk of sectarian violence, and because Australia offers better schooling and lifestyle than Pakistan. However, the Tribunal is satisfied that such hardship would not be significant. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

    The impact on any victims of family violence

25. There is no evidence before the Tribunal regarding this matter.

    Other relevant matters

26. The Tribunal accepts that the applicant completed an advanced diploma in commercial cookery in Australia and acquired skills in cooking and preparing Indian/Pakistani cuisine.

27. During the course of the first Tribunal hearing, the applicant claimed that he borrowed money from friends to sustain his life in Australia during the time he was prevented from working. He did not present any written evidence to substantiate this claim. Even if the Tribunal accepts the applicant’s debt claim, there is little evidence before it to support a finding that he will not be able to repay some or all of the debt if he was required to return to Pakistan.

28. During the course of the first Tribunal hearing the applicant expressed his concerns that if returned to Pakistan, his son might become a ‘hardliner’. The Tribunal infers that the reason for this concern is his family being minority Shia Muslims. The applicant did not elaborate on this claim or provide explanation why his son was particularly at risk of such a fate.  There is no evidence before the Tribunal that Shia Muslim children growing up in Pakistan are destined to become ‘hardliners’.    

29. 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.

30. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

31. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

    Antonio Dronjic
    Member