Rakib (Migration)

[2020] AATA 877

Rakib (Migration) [2020] AATA 877 (13 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zihad Mahmud Rakib
Ms Nahid Sultana

CASE NUMBER:  1932026

HOME AFFAIRS REFERENCE(S):          BCC2019/3309100

MEMBER:John Cipolla

DATE:13 March 2020

PLACE OF DECISION:  Sydney

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 second named applicant.

Statement made on 13 March 2020 at 12:12pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – employment ceased for more than 60 days – discretion to cancel visa – factors for and against cancellation – factors beyond applicant’s control – position made redundant by employer – workplace abuse – excessive hours of work without pay – injury – wife’s application for review of refusal of student visa – decision under review affirmed for first applicant, no jurisdiction for second applicant

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348

Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

CASES
Rani v MIMA (1997) 80 FCR 379

Tien 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 6 November 2019 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. On 13 January 2017 the applicant was granted a Subclass 457 (Temporary Work (Skilled)) visa. On 6 November 2019 the Departmental delegate decided under s.116(1)(b) of the Migration Act to cancel this visa on the basis that the holder had not complied with condition 8107(3)(b) which requires that if employment with the sponsor ceases, the period in which the visa holder remains unemployed must not exceed 60 consecutive days.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the visa holder on 11 October 2019. The delegate noted that that applicant had been approved to work for the sponsor Bondisands (Investments) Pty Ltd and that the sponsor had informed the Department that the visa holder had ceased employment with them on 17 February 2019. The delegate noted that the applicant had not thereafter obtained employment within 60 days as required by condition 8107(3)(b) of his visa, therefore enlivening the grounds for cancellation. The applicant responded to the NOICC requesting an extension of time, however given this was received out of time it was refused by the delegate.

4. On 06 November 2019 the delegate cancelled the visa holder’s visa. In doing so they weighed a number of discretionary factors both for and against the cancellation. With regard to the purpose of the visa holder’s travel to and stay in Australia, the delegate found that the visa had been issued to enable the applicant to undertake skilled work for a finite period of time, that this function had been met up until cessation of employment with the sponsor and that it was now not in line with the framework of the visa to permit the visa holder extended stay to seek further employment opportunities and that this weighed in favour of the cancellation. When factoring in the compliance with the visa the delegate noted that the holder had not breached any additional conditions, but regarded that noncompliance with 8107(3)(b) was sufficient to weigh in favour of cancellation of the visa. With regard to the degree of hardship that would result as a consequence of cancellation of the visa it was noted that the applicant and his dependent wife had been onshore for several years and would have thus developed some social and economic ties to the country, but that this did not supersede the purpose of the visa which was temporary in nature and that consequently little weight could be attributed in favour of not cancelling the visa. Looking at the circumstances in which the cancellation arose, the delegate deemed that the holder was aware of the requirements of the visa, that the circumstances in which the non-compliance occurred were not beyond their control and that this factor weighed somewhat in favour of cancellation. The delegate further noted the applicant had been co-operative in his behaviour and dealings with the Department, and noted that a consequential cancellation under s140 would affect the applicants wife and also noted the potential ramifications under s189/190 of the Migration Act along with s48 of the Migration Act attributing each of these factors little weight in the visa holder’s favour.

5. 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.

6. The applicant and his wife appeared before the Tribunal on 12 March 2020 to give evidence and present arguments. The Tribunal and the applicant were assisted by an accredited Bengali interpreter.

7. 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

8. 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?

9. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(b) which says that if the visa holder ceases employment the period during which the holder ceases employment must not exceed 60 days.

10. The applicant’s employer notified the Department that the applicant ceased employment with them effective 17 February 2019.  At hearing the applicant confirmed that he ceased employment with his employer on 17 February 2019 but that it was as a result of him being made redundant by his sponsoring employer. A copy of the letter to this effect dated 18 February 2019 was provided to the Tribunal at hearing.

11. 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

12. 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’.

13. The Tribunal discussed with the applicant at hearing the purpose for his travel to and stay in Australia. With regard to his travel history to Australia the applicant advised the Tribunal that he initially travelled to Australia in April 2015 as the holder of a Student visa. The applicant advised that he had undertaken tertiary studies in Bangladesh prior to his arrival in Australia. The applicant advised that after he arrived in Australia he undertook 12 months of intensive English language studies at the University of Wollongong. He then enrolled in the University of Wollongong’s Masters of Accounting program that was conducted at the University’s Sydney campus located at Circular Quay.  The applicant advised that if he had made satisfactory academic progress in this course that it would have taken him two years to complete. The applicant only managed to undertake one year as he was not making satisfactory academic progress. The applicant during that period applied for a Subclass 457 visa with his sponsoring employer for whom he had worked since 2015.  The business traded as Speedo’s Café at Bondi Beach. The applicant was sponsored to work as a Café/Restaurant manager.  The Tribunal noted that the applicant had been granted a Subclass 457 visa on 13 January 2017 a visa that was valid until 13 January 2021. The Tribunal noted that this visa was for a finite period with the expectation that the applicant would work as per his contract of employment with the sponsoring employer for a four year period.

14. The Tribunal gives this consideration some weight in favour of the visa cancellation.

15. The Tribunal discussed with the applicant the extent of compliance with visa conditions. The evidence of the applicant was that he had complied with the conditions attached to his student visa up until the cessation of his studies due to the grant of a Subclass 457 visa. The applicant advised that he had worked in a part-time capacity for the sponsoring business from 2015 and commenced full-time work on 13 January 2017 after the grant of the Subclass 457 visa. The applicant stated that up until the point of his termination on 17 February 2019 he had complied with the conditions attached to his Subclass 457 visa

16. The applicant reiterated that he had not terminated his employment but had in fact been made redundant by his employer. The applicant as noted provided a copy of the redundancy letter dated 18 February 2019. The applicant then attempted to pursue alternative employment and an alternative sponsorship without any success. The Tribunal finds that the applicant’s failure to comply with condition 8107(3)(b) of his Subclass 457 visa was attributable to him being made redundant by his sponsoring employer on 17 February 2019 for which he was given formal notice on 18 February 2019. The applicant was required to sign a deed of release as a result of being made redundant and the Tribunal finds that the applicant’s failure to comply with this condition was beyond his control, and the Tribunal gives some weight to this consideration in favour of not cancelling the visa.

17. The Tribunal discussed with the applicant and his wife at hearing the hardship that may be caused to them as a consequence of the cancellation of the applicant’s visa. The applicant stated that his wife had lodged an application for a student visa which had been refused. He advised that his wife had sought merits review of that Departmental decision which had not yet been finalised by the Administrative Appeals Tribunal. The applicant stated that he had been led to believe by his sponsoring employer that the Subclass 457 visa would potentially provide him with a pathway to permanent residence and that this hope had been thwarted by the redundancy letter of 18 February 2019. The applicant stated that during the time that he was employed by the sponsoring employer he had to work substantial additional hours outside the hours that existed in his contract of employment for which he was not paid and that he would like to pursue an action against his former employer for breach of contract with the Fair Work Commission of Australia. The applicant stated that he would need to be onshore to pursue this action.

18. The Tribunal notes that the grant of a Subclass 457 visa is temporary in nature for a finite period of four years and that there may be a prospect beyond that visa of permanent residence but this is not guaranteed. The Tribunal notes that the cancellation of the applicant’s visa for breach of condition 8107 as a consequence of him being made redundant by his sponsoring employer has caused him and his wife hardship and stress and the Tribunal gives this consideration some weight against visa cancellation.

19. With regard to the circumstances in which the ground for cancellation arose the Departmental delegate noted that the evidence before them indicated that the sponsoring employer had notified the Department that the applicant ceased employment with them on 17 February 2019. As noted above the delegate did not have a formal response to the notice served on the applicant with regard to the prospective cancellation of his visa. The Tribunal has been provided with evidence that was not before the delegate in this respect. That evidence indicates that the applicant was served with a letter dated 18 February 2019 from his sponsoring employer. The letter notes that the sponsoring business had been the subject of Departmental investigations and compliance action and that a number of members of the business along with employees had been interviewed by Departmental officers. The letter notes that the company had decided to realign its business model and as a consequence advised the applicant that his position of Café/Restaurant Manager was no longer required to be performed. The letter then spells out as per the applicant’s employment contract a breakdown of payments to be made to him as prescribed by the Fair Work Act 2009.

20. The applicant gave evidence at hearing that during the time of his employment as a part-time employee from 2015 and as a full-time employee from January 2017 that he had been abused by his previous employers in terms of the number of hours that he was required to work. The applicant stated that he was expected to work up to 98 hours a week during the busy summer months and 60 hours a week for the remainder of the year and that he was not paid for these additional hours. The applicant stated that this was in breach of his contract of employment which required that he only work 38 hours per week. The applicant stated that he wished to pursue a prospective action against his former employer through Fair Work Australia. The Tribunal notes that the circumstances in which the ground for cancellation arose were beyond the visa applicants control because he had been made redundant. However the applicant had 60 days from the cessation of employment to find a new sponsoring employer and the evidence before the Tribunal indicates that as at the hearing date 12 March 2020 the applicant had not been able to successfully find a new sponsoring employer willing to take him on. The legislative regime envisages a period of 60 days and does not provide an open ended invitation to an applicant to find an alternate sponsor beyond that time. The Tribunal gives this consideration weight in favour of cancelling the applicant’s visa.

21. The evidence before the Tribunal indicates that the applicants past and present behaviour towards the Department has been cooperative and the Tribunal gives this consideration some weight against visa cancellation.

22. The Tribunal notes that the applicant has a dependent wife who is a secondary visa applicant and who has been subject to the automatic cancellation of her visa under section 140 of the Migration Act. The Tribunal gives this consideration little weight in favour of visa cancellation.

23. The Tribunal has had regard to the fact that the applicant may be liable to be detained under section 189 of the Migration Act or indeed removed under section 198 of the Migration Act and that he will be subject to section 48 of the Migration Act limiting his options to apply for further visas to Australia. The Tribunal gives this consideration little weight against visa cancellation.

24. The Tribunal discussed with the applicant at hearing whether it would be in breach of its international obligations to the applicant as a result of the cancellation of his visa. The Tribunal explained to the applicant that this would require the applicant establishing that he had legitimate claims to make a protection visa and that he feared returning to Bangladesh on the basis that a relevant Convention ground was applicable to him and that he had a well-founded fear of persecution if he was to return.   The Tribunal noted that in the almost 5 years the applicant had been in Australia he had not lodged an application for protection which suggested that he did not hold a well-founded fear of persecution for a Convention based reason if he were to return to Bangladesh. There is no evidence that has been provided to the Tribunal which would lead to the Tribunal finding that it would be in breach of Australia’s non-refoulement obligations if the applicant was removed from Australia. The Tribunal gives this consideration some weight in favour of visa cancellation.

25. The applicant provided evidence at hearing indicating that the cancellation of his visa for breach of condition 8107 was due to him being made redundant by his employer. The applicant also provided evidence that during the time of his employment he believes he was subject to abuse in terms of the hours that he was made to work, work for which he claims he was not paid. The applicant further advised the Tribunal that prior to him being made redundant he had experienced a back injury in the workplace as a result of lifting heavy boxes and placing them in storage as part of his duties. He advised that after his initial back injury he was given strong medication by his manager which alleviated the pain for a short period of time however the applicant maintains that he has suffered ongoing back related issues since this initial incident and that he believes that the injury to his back may be a factor that led to him being made redundant by the sponsoring business. As discussed with the applicant at the review hearing the applicant has an option to pursue any work-related issues through the Fair Work Commission and that he should seek independent advice about pursuing this.

26. The Tribunal has considered all of the relevant discretionary considerations both singularly and cumulatively. The Tribunal notes that the grant of a Subclass 457 visa leads to temporary residence for a period of up to 4 years to work for a sponsoring employer in Australia. The evidence indicates that two years into the visa the applicant was made redundant by his sponsoring employer, an event that he did not foresee and did not expect. The evidence before the Tribunal indicates that since February 2019 to date the applicant has failed to find an alternative sponsoring employer. As noted the legislation envisages in condition 8107(3) that if the holder ceases employment with the sponsoring employer (for any reason) the period which the applicant ceases employment must not exceed 60 consecutive days and an additional requirement which the Tribunal discussed with the applicant at hearing is that if the occupation is listed in the most recently approved nomination for the visa holder that the applicant must work only in a position in the business of the sponsor or indeed an associated entity of the sponsor.  The evidence before the Tribunal indicates that in the 60 consecutive days since the cessation of his employment the applicant has not been able to seek work in a position in the business of the sponsor or in an associated entity of the sponsoring employer.  The Tribunal having regard to the relevant discretionary considerations finds when those considerations are cumulatively considered that the applicant’s visa in the circumstances of this case should be cancelled.

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

    DECISION

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

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

    John Cipolla
    Senior Member