Rahman (Migration)

[2021] AATA 3554

Rahman (Migration) [2021] AATA 3554 (19 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Musammat Mahnaz Rahman
Master Maimunah Ahamed

CASE NUMBER:  2016052

HOME AFFAIRS REFERENCE(S):          BCC2020/1723731

MEMBER:Noelle Hossen

DATE:19 August 2021

PLACE OF DECISION:  Perth

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 second named applicant’s application is dependent on the first named applicant’s application.

Statement made on 19 August 2021 at 1:59pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – breached condition 8107 – employer was not an approved standard business sponsor – circumstances that arose were beyond her control – applicant had continued to work in her chosen field – applicant continued to pursue employment –decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140, 348

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 30 October 2020 made by a delegate of the Minister for Home Affairs 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 did not comply with paragraph 3 (a) (ii) (B) of condition 8107 attached to their visa. 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.

4. The Decision record of the 30 October 2020 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons as follows:

   On the 3 October 2018 the first named applicant was granted a subclass 457 visa to remain valid until the 3 October 2022.

   The standard visa sponsor who most recently nominated the first named applicant to work as an accountant was Trak Accounting Services Pty Ltd (the sponsor).

   On the 13 July 2020 a notice of intention to consider cancellation (NOICC) was issued.

   The applicant provided a response to the notice to the Department that they have always been under the impression that they were working for Trak Accounting Pty Ltd despite the sale of the business to Fortune Gold Pty Ltd.

   On the 30 October 2020, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa.

   The applicant applied for a review of the Decision of the Delegate on the 30 October 2020.

5. The applicants appeared before the Tribunal on 22 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

6. The first named applicant is a citizen of Bangladesh and was born on the 5 July 1981.

7. In support of the applicant’s application for review the applicant provided the following documents to the Tribunal:

   Written submissions

   Job Offer from Trak Accountants

   Last payslip from Trak Accountants

   Business name registration from Trak Accountants.

   Company Extract from Fortune Gold date of registration 1/08/2019

   Her letter of the 18 July 2020 in response to the NOICC

   Letter from Red Dog accounting dated 17/07/2022 and last payslip from Red Dog accounting for period ending 18/02/2021

   Offer of employment from Gold Group Consulting and PKF accountants and Business Advisers including pay slip.

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

9. 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

10. 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?

    s.116(1)(b) - non-compliance with conditions

11. 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)(a)(ii)(B) attached to the applicant’s visa.

12. A visa may be cancelled under Section 116(1) (b) if the Minister or the Tribunal is satisfied that the holder has not complied with a condition of the Visa. In this instance condition 8107.

13. The first named applicant was working for Fortune Gold Pty Ltd who was not an approved standard business sponsor, nor an associated entity of an approved business sponsor. The applicant did not agree that the grounds for cancellation exists as they were under the impression that they still worked for the sponsor despite the sale of the business to Fortune Gold Pty Ltd. The delegate found that the first named applicant knew that the business had been sold to Fortune Gold Pty Ltd and considered that it was the applicant’s responsibility to determine whether such a change might impact their visa, and to take action accordingly.

14. The Tribunal agrees with the Decision of the Delegate that the grounds for cancellation do exist as it was always the applicant’s responsibility to ensure that she complied with the conditions of her visa.

15. Consideration of discretion / conclusions

    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

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers:

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia:

17. The first named applicant did provide extensive submissions to the Tribunal and in her written submissions said as follows: “My purpose of stay in Australia was to work as a taxation accountant. The previous nomination and my 457 visas was in the same occupation. If my subclass 457 (temporary Work Skilled) visa had it not been cancelled on the 30 October 2020, I would continue to work until; October 2022. I would have also gained Permanent residency. As will be evident from the offer letters from Red Dog, Gold Group Consulting and PKF- Business Advisory, I have qualifications and training and I would be able to secure a position in the Accounting and Advisory industry without any difficulty. I respectfully submit that my capability of itself evidences that I could be nominated for the occupation of Taxation Accountant by another sponsor. Therefore, this weighs against cancellation.”

18. The first named applicant felt that she was duped by the sponsor as she felt that she had been dutifully complying with all her conditions of her visa. Since her employment was terminated the applicant has worked in the same field and has now been successful in her application to work in Australia. Her pending application has been approved and she is able to remain in Australia to continue to work as an accountant.

19. The first named applicant provided confirmation to the Tribunal that on the 4 August 2021 the Department approved her sponsorship for a Visa to work for SMPR Australia Pty Ltd as a taxation accountant in NSW.

20. She stated that the circumstances in which the ground of cancellation arose was beyond her control.

21. The Tribunal accepts the first named applicant’s explanations and weighs the fact that the circumstances that arose were beyond her control in favour of the first named applicant’s case not to cancel her visa.

    the extent of compliance with visa conditions:

22. The applicant has to the best of her ability tried to comply with her visa conditions whilst in Australia. She did reply to her NOICC and has always complied with the demands of the Department. There is no evidence that the first named applicant has deliberately not complied with her visa conditions.

23. Although it was found that she did not comply and breached condition 8107 of their Temporary Work Skilled visa the information supplied suggests that there are mitigating circumstances because the applicant was ignorant that she was breaching the condition even though she was aware that the business had been sold.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship):

24. The first named  applicant has stated that she has lived in Australia for 9 years and that her daughter was born in Australia and is now 6 years of age and does not have a relationship with any other persons from Bangladesh and it would cause her hardship if she were to be relocated urgently. The first named applicant has stated that her community ties are in Australia and that returning to her home country would cause her and her daughter immense psychological and financial hardship.

25. The Tribunal accepts that the applicant and her daughter would suffer hardship financially and psychologically if they were required to return to Bangladesh and weighs those factors in favour of not cancelling the visa.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control:

26. The circumstances in which the cancellation arose was not within the control of the applicant. The first named applicant has worked solidly to find another sponsor and had continued to work in her chosen field.

27. In her written submissions the first named applicant sets out in detail the efforts that she has made to rectify the situation.

28. The Tribunal accepts that the first named applicant evidence as she appeared as a truthful witness who had worked hard to comply with her conditions and the situation that arose was outside of her control. She stated in her written submissions that she was in shock when the Border Security Officers arrived at her office and asked for her.

29. Following her realisation, she did take every action that she could to mitigate the circumstances and was able to find employment and endeavoured to secure another position that was intended to lead to skilled employment in the same field.

30. The Tribunal weighs the fact that she has rectified her situation in favour of not cancelling the visa.

    past and present behaviour of the visa holder towards the department:

31. There is no evidence before the Tribunal that the first named applicant has behaved inappropriately towards the Department. The Tribunal takes this fact into consideration and gives it a little weight against cancelling the visa.

    whether there would be consequential cancellations under s.140:

32. The applicant has her 6-year-old daughter residing with her in Australia and if the visa is cancelled this will result in consequential cancellation by operation of law under Section 140 of the Act of the secondary visa.

33. The child was born in Australia and would have difficulty fitting in to the culture in her mother’s home country.

34. The Tribunal places some weight on those facts in favour of not cancelling the visa.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention:

35. The applicant has already been approved for her Visa for Regional Sponsored Migration Scheme (subclass 187) visa.

36. The cancellation of the visa may result in the applicant being affected by Section 48 of the Act which may cause her to have limited options if applying for further visas while in Australia.

37. The Tribunal places a lot of weight in favour of not cancelling the visa in respect of those facts.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].):

38. There may be some difficulties with the child’s visa if it is consequentially cancelled as a result of the cancellation of this visa.

39. The first named applicant can remain in Australia.

40. There is no information that Australia would be in breach of its international obligations if the 457 visa is cancelled. The circumstances of this case are not such that would engage Australia’s international obligations.

    any other relevant matters:

41. There are no other relevant matters.

42. Considering the circumstances, the Tribunal concludes that the visa should not be cancelled

    DECISION

43. 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.

44. The second named applicant’s application is dependent on the outcome of the first named applicant’s Application.

    Noelle Hossen
    Member