Rahman (Migration)

[2019] AATA 2830

Rahman (Migration) [2019] AATA 2830 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mahboob Ur Rahman
Ms Nafeha Bibi
Master Mohammad Rahman
Master Azaz Ur Rahman
Miss Sonana Mahboob

CASE NUMBER:  1819794

HOME AFFAIRS REFERENCE(S):           BCC2018/1715411

MEMBER:John Cipolla

DATE:18 February 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 401 (Temporary Work (Long Stay Activity)) visa.

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

Statement made on 18 February 2019 at 4:52pm

CATCHWORDS

MIGRATION – cancellation – Temporary Work (Long Stay Activity) (Class GB) visas – Subclass 401 (Temporary Work (Long Stay Activity)) – genuine temporary entrant – ceased employment for sponsor – applicant returned after long leave on compassionate grounds – sponsor supported visa reinstatement – no notification of termination – duties recommenced on a voluntary basis – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, r 2.43

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80          

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 July 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 401 (Temporary Work (Long Stay Activity)) 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 delegate identified a prescribed ground to cancel the applicants visa under regulation 2.43 of the Migration Regulations. 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 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.

4. The primary visa applicant (hereinafter referred to as the applicant) appeared before the Tribunal on 7 February 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto/Pushtu and English languages.

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

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)(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?

8. 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 (the Regulations). In the present case, the ground in r.2.43(1)(ia) is relevant, that ground states that a Subclass 401 visa holder must have a genuine intention to stay in Australia temporarily to carry out the work or activity in relation to which the visa holder’s visa was granted.

9. On 8 November 2017 the Department was notified that the applicant had ceased employment with Iqra Youth Welfare Centre Inc and formed the view that as the applicant had ceased employment for his sponsor that he did not have a genuine intention to stay temporarily in Australia to carry out the work in relation to which his visa was granted.

10. The Department as a result of this information sent the applicant a Notice of Intention to Consider Cancellation (NOICC) dated 11 June 2018 inviting the applicant to comment on whether he agreed the ground for cancellation existed and whether or not his visa should be cancelled.

11. The applicant responded in an e-mail dated 14 June 2018 stating the following.  He advised in his e-mail that he had been working for his sponsor since October 2013 and that he had carried out all of his duties.  The applicant advised that he had requested long leave permission from 1 March 2017 until 31 July 2017 on compassionate grounds as his wife was unwell, they had a new baby and she needed his assistance. The applicant stated that after he returned from this long leave period of 5 months that he was available to perform his duties on a regular basis but his sponsoring employer did not put him on the roster for a long time. The applicant stated that when he received the visa cancellation notice that he was shocked because he had never terminated his work with his sponsoring employer and was not given any notice of employment termination by his employer. The applicant also noted that the visa included his spouse and children and that the family had been stressed by the cancellation of his visa.

12. The Tribunal conducted a hearing on 7 February 2019. The applicant attended the hearing along with his representative. At the outset of the hearing the Tribunal went into detail about the respective issues in the review and the prospective outcomes of the merits review process. The Tribunal also noted that the Subclass 401 visa was closed to new applicants in November 2014 and was thus an obsolete visa Subclass and had been replaced by Subclass 408.

13. The applicant provided his name and date of birth. The Tribunal asked the applicant when he first came to Australia and he advised in 2013 as the holder of a Student visa. The Tribunal asked the applicant how long the Student visa was valid for and he advised 3 years and 5 months.

14. The Tribunal asked the applicant about his study history in Australia. The applicant stated that after he arrived in Australia he studied an English language course for 5 months between July and November 2013 and then enrolled in a Bachelor of Accounting at the Kings Own Institute in Sydney. The Tribunal asked the applicant about the duration of this course and he advised it was for 3 years. The Tribunal asked the applicant whether he completed the course and he advised that he did not complete the course. The applicant stated that he had studied religion in Pakistan and that Iqra Youth Welfare Centre advised the applicant that they needed somebody to be employed as a Religious Worker and that he could change from a Student visa to a Subclass 401 visa. The Tribunal asked the applicant how long he studied the accounting degree for and he advised for one semester only.

15. The Tribunal noted that a Student visa is issued to an overseas applicant to enable them to study in a foreign country and that it was a temporary visa. The Tribunal noted that the applicant’s Student visa was valid for 3 years and 5 months and that he only completed a 5 month course in English language and 1 semester of accounting. The Tribunal asked the applicant whether he would describe his period of study in Australia as being unsuccessful. The applicant stated that when he obtained a job with the Iqra Youth Welfare Centre he had intended to continue to study part-time whilst he was working but that the demands of the job meant that he did not have time to do so. The Tribunal asked the applicant whether he passed or failed the one semester of accounting and the applicant stated that he did not sit for his examinations.

16. The Tribunal noted that the applicant had arrived on a Student visa in 2013 and then obtained a Subclass 401 visa and as a consequence had been in Australia for in excess of 6 years. The Tribunal, once again noting that the applicant had only held temporary visas asked him what his long-term objectives were with regard to Australia. The applicant stated that he is not in Australia by himself anymore and that his wife and children had joined him 3 years ago. The applicant stated that his wife had been seriously ill and that the treatment that she requires is not available in Pakistan. The applicant also stated that whilst he was working for the Iqra Youth Welfare Centre he had served the community in Australia and that he hoped to be able to continue to do this.

17. The Tribunal asked the applicant about his wife’s health problems. The applicant stated that his wife had given birth to 4 children all by cesarean section. The applicant stated that his 2 sons aged 10 and 7 were both born by cesarean section in Pakistan and that he has a daughter who is now 3 years old who was also born by cesarean section in Australia. He advised that his wife had given birth to another daughter in Pakistan 6 years ago by cesarean section but that daughter had only lived for 28 hours after her birth.

18. Once again the Tribunal asked the applicant what his wife’s ongoing health problems were and he advised that she was always unwell, that she suffered with headaches and back pain, and since the cancellation of the visa she had been stressed.

19. The Tribunal asked the applicant whether his 2 older sons were attending primary school in Australia and he advised that they were not and that they were being home schooled.

20. The Tribunal asked the applicant what hardship he and his family would experience if he had to return to Pakistan and why, once again noting that the applicant and his family had only ever held temporary visas. The applicant stated that there were 3 reasons, his wife’s illness the education of his children and financial hardship. The Tribunal noted that there was no evidence before it that the applicant’s wife would not be able to be treated in Pakistan for stress or for headaches. The Tribunal further noted that the applicant’s children were home schooled and not being schooled within the Australian education system. The Tribunal questioned the applicant about the financial hardship issue. The applicant stated that Iqra Youth Welfare Centre was willing to offer him a full-time job and the applicant provided a letter dated 6 February 2019 to this effect.

21. The Tribunal made reference to that letter of 6 February 2019 from Iqra Youth Welfare Centre. The letter noted that the applicant had been employed by the centre from 2013 to 2017. The letter noted that in the last week of February 2017 the applicant had requested a period of extended leave for 5 months due to his family circumstances. The letter noted that as a consequence, because the applicant had held a full time permanent position, they had to hire a full-time staff member to fill that position when the applicant went on extended leave. The letter stated that on 8 November 2017 the employer had to notify the Department that the applicant was no longer employed with the Centre. The letter noted that the applicant in the meantime continued to assist with the Centre on a voluntary basis. The letter noted that the Centre had grown substantially over the past 2 years and that the Centre had now offered the applicant a position of full time employment commencing in March 2019. The letter noted that the Centre hoped that the applicant’s visa cancellation would be revoked so that he could continue to serve the Centre and the community.

22. The Tribunal noting that the applicant had ceased working with Iqra Youth Welfare Centre in February 2017 when he went on extended leave asked the applicant how he had been surviving in Australia since that time. The applicant stated that when he went on leave he had some savings and that he borrowed $20,000 from friends in Australia. The applicant further advised that when his visa was cancelled he approached the Department to have work rights and that since work rights had been granted he had been undertaking work in the ride share industry.

23. The Tribunal asked the applicant why he left his employer for a five-month period in February 2017. The applicant stated that he took the time off to care for his wife and young daughter, as his wife was unwell at the time and was suffering with back pain he added that she had recently given birth and was struggling to care for their 3 children without assistance. The Tribunal once again noting that the applicant was only in Australia as the holder of a temporary visa asked the applicant, that given his family predicament, why the family did not return to Pakistan where they would have a greater support network than in Australia. The applicant stated that he contacted his parents and his wife’s parents in Pakistan to see about the family returning to Pakistan and they advised that unless the applicant accompanied his family they could not provide support to his wife and children in his absence.

24. The Tribunal asked the applicant whether there were any further reasons as to why his visa should not be cancelled. The applicant stated that the current issues in his life will be resolved if he is granted the visa. That he has always been committed to his role at the Iqra Youth Welfare Centre and that he hoped to be able to serve the Islamic community if the cancellation was set aside.

25. The Tribunal deferred to the applicant’s representative and asked whether there were any submissions that he wished to raise. The applicant’s representative noted that the applicant came to Australia on a Student visa and completed an English language course and then made an application for a Subclass 401 visa. The representative noted the applicant’s evidence that he was unable to continue to both study and work at the same time due to the demand of his job with the Iqra Youth Welfare Centre. He noted that since he had ceased work with Iqra Youth Welfare Centre he had borrowed money from friends and then sought permission to work on his Bridging visa. The representative noted that the applicant sought extended leave for family reasons, which was duly granted, and that his employer needed to fill the position on this basis. The applicant’s representative noted that the employer reported the applicant’s cessation of employment to the Department in compliance with the reporting obligations to the Department as due to the length of the applicant’s absence they needed to fill the position.

26. The applicant’s representative stated that the applicant took time off to care for his wife and family when she was unwell. Prior to that he had been dedicated to his work with the Iqra Youth Welfare Centre and that as a religious man he had promoted community harmony in his position. The applicant’s representative made reference to the letter of 6 February 2019, noting that Iqra Youth Welfare Centre had expanded and as a consequence of growth had offered the applicant a position with them on a full-time basis from March 2019. The hearing concluded.

27. The Tribunal received a submission with attachments the day prior to the hearing. These documents included a contract of employment for the applicant and Iqra Youth Welfare Centre, a medical certificate pertaining to the applicant’s wife dated 5 February 2019 noting that the applicant’s wife had “multiple medical issues” and had to stay home from 31 January 2017 to 30 June 2017 and that her husband was required to look after her and their family during this period.  Also provided was a petition containing 38 signatures supporting the applicant’s ongoing role with the Iqra Youth Welfare Centre, and included a number of character references from a range of people in support of the applicant’s ongoing employment with Iqra Youth Welfare Centre.

    FINDINGS AND REASONS

28. As has been noted above 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 (the Regulations).

29. In the present case, the ground in r.2.43(1)(ia) is relevant. That ground states that for the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are: (ia) in a Subclass 401 Temporary Work (Long Stay Activity) visa; that the grounds in sub- regulation(1A) are met. Sub- regulation (1A) states: the grounds are that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have at the time of the grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which the visa holder’s visa was granted.

30. On 8 November 2017 the Department was notified that the applicant had ceased employment with IQRA Youth Welfare Centre Inc and formed the view that as the applicant had ceased employment for his sponsor that he did not have a genuine intention to stay temporarily in Australia to carry out the work in relation to which his visa was granted.

31. The Department as a result of this information sent the applicant a Notice of Intention to Consider Cancellation (NOICC) dated 11 June 2018 inviting the applicant to comment on whether he agreed the ground for cancellation existed and whether or not his visa should be cancelled.

32. The evidence before the Tribunal at review is that the applicant was granted the visa that is the subject of this review on 22 December 2016 to work for IQRA Youth Welfare Centre.  Two months after the applicant commenced this employment he requested extended leave of 5 months due to family circumstances.  The circumstances were that his wife who had given birth to the couple’s fourth child was unwell and needed support at home to look after her and the children. This leave was duly granted. This evidence indicates that the applicant at the time of the grant of the visa had commenced work with his employer and that due to a set of circumstances that were beyond his control he requested and was granted extended leave of 5 months.  The applicant then expected to return to work after this period but claimed that his employer did not place him on the roster and that he was advised by them they would let him know when he was to recommence on the roster.  The evidence indicates that the applicant maintained regular contact with the centre after his period of absence and that from time to time he undertook voluntary work with the Iqra Youth Welfare Centre for which he was not paid.

33. The Tribunal accepts the evidence of the applicant that the first he learnt of the termination of his employment was when he received the NOICC and that he never received any notification of this termination either orally or in writing from the Iqra Youth Welfare Centre. The evidence of the applicant is that from the end of July 2017 he was not paid for the work that he engaged in by the Iqra Youth Welfare Centre.

34. The evidence provided by Iqra Youth Welfare Centre in their letter dated 6 February 2019 indicates that as the applicant occupied a full-time position and that a few months after he commenced he sought extended leave for 5 months due to his family circumstances.  Evidence provided since that time by Iqra Youth Welfare Centre is that due to this extended leave that they had no option but to hire a full-time staff member to fill the position. The organisation then contacted the Department of Immigration on 8 November 2017 (some three months after the applicant was due to return from extended leave) to advise that the applicant was no longer employed with the centre. The letter goes on to state that the applicant from the period of his proposed date to return to work to now had “continued to assist the centre voluntarily.” The letter also states that the Centre in the intervening period had grown substantially and that they wished to offer the applicant a new contract of employment from March 2019.  The Iqra Youth Welfare Centre also described the applicant as being “an extremely hard-working and knowledgeable religious preacher and well respected from students and the community in general. He is an honest and reliable person who contributes his valuable time and efforts to help the centre to operate efficiently. He shows great enthusiasm at all times. He is a valuable asset to the community. The community need such a fine gentleman like him.”

1. The evidence before the Tribunal indicates that the applicant travelled to Australia as the holder of a Student visa, a visa that is issued to overseas residents to enable them to avail themselves of study opportunities in Australia.  The evidence indicates that the applicant after arriving in Australia completed an English language course of 5 months duration. After completing that course of study the applicant enrolled in a Bachelor of Accounting. The applicant only completed one semester of the Bachelor of Accounting and did not undertake examinations. The evidence indicates that the applicant did not continue with his studies as Iqra Youth Welfare Centre made him an offer of employment as a Religious Worker and he then made an application for a Subclass 401 visa which was issued to him in December 2016. The applicant as has been noted worked for his sponsoring employer for a period of 2 months before seeking extended leave due to extenuating family circumstances and during that period of extended leave the position was filled by another employee.  The applicant maintained voluntary employment with the Iqra Youth Welfare Centre in the interim period. As noted the applicant has been offered a new contract of employment from March 2019.

2. There have been a large number of references provided to the Tribunal at review pertaining to the applicant.  These confirm the applicant’s ongoing work with the Iqra Youth Welfare Centre and make reference to his contribution to the Islamic Community as a Religious Worker.

3. The ground for cancellation as has been noted is that the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which the visa holders visa was granted.

4. The evidence indicates that the applicant commenced work for his employer and carried out the tasks of his position of Religious Worker proficiently and that he garnered the support of the community that he worked with.  In February 2017 his personal circumstances meant that he had to seek a period of leave from his employer as his wife was ill and unable on her own, to care for the couples 3 children.  This was done with the consent of his employer.  When the period of approved leave was over the applicant returned to work but for reasons unbeknown to him he was not rostered on, however, he continued to work with the Iqra Youth Welfare Centre on a voluntary basis, a fact corroborated by Iqra Youth Welfare Centre.  This is further confirmed in the references provided to the Tribunal at review. Having regard to the evidence before the Tribunal at review the Tribunal is satisfied that the applicant at the time of visa grant and beyond the visa grant has had a genuine intention to stay in Australia temporarily to carry out the work in relation to which his visa was granted

5. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(g) exists. It follows that the power to cancel the applicant’s visa does not arise.

   DECISION

6. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa.

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

   John Cipolla
   Senior Member