Sirullah (Migration)

Sirullah (Migration) [2024] AATA 3103 (20 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhamad Burhanudin Sirullah
REPRESENTATIVE:  Mr Fabrice Vincent Couronne (MARN: 1792547)
CASE NUMBER:  2413202
HOME AFFAIRS REFERENCE(S):          BCC2023/2126503
MEMBER:Amanda Mendes Da Costa
DATE:20 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 20 August 2024 at 12.24pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – applicant ceased employment more than 60 days – position of Deckhand – physical assault – sponsor sought compensation – unsafe working conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8607
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 May 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(b) of the Act on the basis that he had not complied with Condition 8607(5) which requires that if a visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 executive 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.
Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 8 August 2024 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both him and his representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
The applicant was represented in relation to the review, with his representative also participating in the hearing.
In making its decision, the Tribunal has considered the information in both the Departmental and Tribunal files. The Tribunal notes that the applicant also provided it with a copy of the delegate’s decision.
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
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?
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 8607(5) attached to the applicant’s visa. This condition requires that if the applicant ceases employment, the period during which he cases employment must not exceed 60 consecutive days.
Background
Departmental records indicate that the standard business sponsor who nominated the applicant in the most recently approved nomination for the visa is SHEREE STAR SEAFOOD PTY LTD (the sponsor) whose nomination was approved on 22 November 2022.
On 2 March 2023, the sponsor advised the Department that the applicant had ceased employment with it effective 24 February 2023.
On 11 April 2024, the Department sent the applicant a Notice to Consider Cancellation (NOICC) of the visa on the ground that it appeared the period in which he had ceased his employment with the sponsor had exceeded 60 days and he therefore had not complied with Condition 8607.
The applicant did not respond to the NOICC of the visa, despite being granted an extension of time in which to reply to the NOICC.
Applicant’s evidence at the hearing
The applicant’s evidence during the hearing may be summarised as follows:
·He is a citizen of Indonesia where he lived with his wife, parents and two younger siblings. His father died shortly before he arrived in Australia. His family and his wife’s parents remain living in their village on the island of Sulawesi. The applicant and his wife are yet to have children.
·He came to Australia on 19 January 2023 to take up a position of Deckhand with the sponsor. He had previous experience as a Deckhand in Indonesia and had also worked as a motor mechanic.
·The sponsor’s business was based in Tweed Heads, in norther New South Wales (NSW) where it operated a prawn trawler. He worked on the trawler, operating the machinery used for setting out and retrieving the prawn nets, sorting the prawns by size and quality, and removing the fresh cargo from the trawler’s hold on its return to the harbour.
·Although he enjoyed the work, the environment around the harbour was not agreeable because too many of the other Deckhands and people working at the harbour were drunk. On one occasion, someone tried to stab him, and he escaped by running away and jumping in the local river. He did not know the identity of this person although it was a man and possibly a deckhand from another trawler.
·He was traumatized by this experience and overwhelmed by the thought that his wife and family in Indonesia (who are dependent on him financially) would be on their own if something happened to him.
·He left most of his belongings on the sponsor’s trawler and ran away from Tweed Heads without telling his employer about either the attack on him or his decision to leave his employment. He did not tell his employer that he was leaving because he was scared that he would be sent back to Indonesia.
·When he left his employment, he did not look for another job because he was aware that condition 8607 made it clear that he should continue working for his sponsor.
·He decided to travel to Melbourne because it sounded like a familiar place name, and he was aware of it when he lived in his village in Indonesia.
·When he arrived in Melbourne, he visited a mosque located in Laverton pray and seek guidance. Whilst he was praying, he noticed another worshipper who also appeared to be an Indonesian. When he spoke to this man about his circumstances, the man offered to have the applicant stay with him. The applicant went to stay with the man and has remained living with him since February/ March 2023. His host also provided him with money to support himself and to send to his family in Indonesia.
·In exchange for the accommodation, the applicant has undertaken home maintenance and household tasks for his host. After a while, the applicant’s host offered him employment as a motor mechanic in his business.
·Approximately six months after leaving his employment, he emailed the sponsor to apologize for his behaviour. The sponsor responded, advising him that it had cost $20,000 to sponsor him and if he was prepared to repay the $20,000, he could return to his job on the trawler. The sponsor was not prepared to allow him to repay the money in instalments from his wages. He therefore did not return to his job with the sponsor.
·When his visa was cancelled in May 2024, he was granted a bridging visa and obtained employment as a motor mechanic with another business located in Brooklyn, where he works 20 hours per week. This is the maximum number of hours permitted by his current visa conditions.
·He is providing financial support to his wife and other family members in Indonesia, including his wife, widowed mother, siblings, and parents-in-law. One of his siblings is still attending school, another sibling is looking for work and his wife is unable to work due to a back injury.
·He has no health problems.
·On his regular visits to his local mosque, he undertakes voluntary cleaning and maintenance tasks.
·He did not respond to the NOICC (for which he is apologetic) because he had no legal representation and by the time, he asked some friends for advice his visa had been cancelled.
·He wants to continue working in Australia which he considers a wonderful and beautiful country where there is no racial discrimination. He also wants to continue providing financial support to his wife and other family members in Indonesia.
·He has thought about what will happen if his visa is cancelled and he returns to Indonesia. It will be hard for him to find work, particularly because people are treated differently there from in Australia. There are an enormous number of people in Indonesia where prospective employers are more judgmental and offer jobs based on appearance, age, and skin colour.
Applicant’s oral submissions during the hearing
The submissions made by the applicant’s representative on his behalf may be summarised as follows:
·This is not a typical case of non-compliance which results in the cancellation of a visa and the Tribunal should give greater weight to the circusmtnces in this case which led to the applicant not complying with condition8607 of his visa.
·The applicant came to Australia in January 2023 with great expectations for his job with the sponsor. However, he soon found himself in a nightmarish situation where his fellow deckhands on the sponsor’s trawler were constantly drunk and aggressive and tried to hit him.
·One night one of the applicant’s colleagues tried to stab him. He was scared and ran away from the trawler and his employment, leaving most of his belongings behind.
·Although the sponsor emailed him after he left, the applicant did not respond to the initial email. The applicant emailed the sponsor approximately six months after he had left to apologize for his behaviour. The employer responded, noting that the applicant had spent $20,000 in sponsoring him. It indicated that if he repaid the money, he could return to his employment on the trawler. When the applicant offered to repay the money in instalments from his wages, the sponsor said that it wanted the money to be repaid in a lump sum.
·The applicant was too scared to seek advice from Fairwork Australia about the situation with his employer and due to him changing his email address he has no documentary proof of the demands made by the sponsor regarding the $20,000.
·The applicant contributes to the Australian community by volunteering at the mosque he attends in Laverton.
·The applicant is compliant with the conditions of his bridging visa, including the condition which limits his work hours to 20 hours per week. He has not sought to circumvent the migration system by making a protection application or working for more hours than permitted.
·There was no other reason for the applicant to leave his employment with the sponsor which was well-remunerated and enjoyable. In these circumstances the Tribunal should accept the applicant’s reasons for leaving his employment which were genuine and involved concerns about his immediate safety.
·If the applicant’s visa is not cancelled, he will be able to apply for another visa based on his current position as a motor mechanic.
Findings regarding the grounds of cancellation
Based on the evidence before it (including the oral evidence of the applicant) the Tribunal is satisfied that the standard business sponsor who nominated the applicant in the most recently approved nomination for the visa is the sponsor, whose nomination was approved on 22 November 2022.
The Tribunal is further satisfied that although the applicant commenced employment in the nominated occupation of Deckhand in January 2023, he ceased that employment effective 24 February 2023. The applicant has not since returned to this employment.
The Tribunal therefore finds that the period in which the applicant has ceased his employment with the sponsor has exceeded 60 days and consequently he has not complied with Condition 8607.
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
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’.
Purpose of the applicant’s travel and stay in Australia
The applicant was granted a temporary Skill Shortage (subclass 482) visa on 5 January 2023 for the purpose of working in Australia in his nominated skilled occupation of Deckhand.
The sponsor notified the Department on 2 March 2023 that the applicant had ceased employment with it effective 24 February 2023 after leaving without explanation.
Departmental records indicated that the applicant is not the subject of an approved nomination with the sponsor or a new sponsoring employer , which would provide him with an opportunity to work in his nominated occupation.
As the purpose of a Temporary Skill Shortage visa is to enable a visa holder to undertake employment with an approved sponsor and the applicant is no longer employed with his sponsor, the Tribunal considers that the purpose of his stay in Australia no longer accords with the purpose of his visa.
The Tribunal gives significant weight to this consideration in support of cancellation of the visa.
Extent of the visa holder’s compliance with visa conditions
There is no evidence before the Tribunal which suggests that the applicant has not complied with any condition of his visa, save for Condition 8607(5).
The Tribunal gives some weight to this consideration against cancellation of the visa.
Degree of hardship that may be caused (financial, psychological, emotional, or other) hardship)
The Tribunal accepts that the applicant is responsible for providing financial support to his wife and other members of his family in Indonesia. The Tribunal is further satisfied that if his visa is cancelled and the applicant returns to Indonesia, he will experience some difficulties in finding employment and that his family is likely to suffer financial detriment as a result of his unemployment. However, the Tribunal notes that the applicant was able to gain employment in Indonesia as a deckhand and a motor mechanic and that he has gained employment in Australia in both roles. The Tribunal considers that given this experience, the applicant will be able to gain employment in Indonesia if his visa is cancelled and he returns there.
The Tribunal gives significant weight to this consideration against cancellation of the visa.
Circumstances in which the ground of cancellation arose
The ground for cancellation arose because the applicant ceased employment with the sponsor for more than 60 consecutive days. There is no evidence before the Tribunal that the applicant has had an approved nomination since his employment with the sponsor ceased on 24 February 2023.
The Tribunal gives significant weight to this consideration in support of cancellation of the visa.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department although the Tribunal notes that he did not respond to the NOICC of the visa.
The Tribunal accepts that the applicant’s work environment on the sponsor’s trawler and at the Tweed Heads harbour involved rough behaviour and alcohol use by the deckhands on his own and the other trawlers and that he was involved in an incident of violence with a man at the harbour.
However, the Tribunal considers that the applicant did have the opportunity to discuss his concerns about his safety with the sponsor and/or report the matter to the police. However, he chose not to do so and although the Tribunal acknowledges that the applicant feared any report of the attack on him would result in him being returned to Indonesia it notes that he was aware that he had an obligation to continue working the conditions of his visa required him to continue working for the sponsor.
The Tribunal notes that although the applicant has been cooperative with the Department since his visa was cancelled and has obtained a bridging visa, it notes that he did not contact the Department after he left the sponsor’s employment to advise that he was no longer working for it.
The Tribunal gives limited weight to this consideration against cancellation of the visa.
Whether there would be consequential cancellations under s.140
Departmental records do not indicate that the applicant has any dependent family member and accordingly, the Tribunal is not satisfied that there would be any consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled.
The Tribunal gives no weight to this consideration either in support of or against cancellation of the visa.
Whether there are mandatory legal consequences, such as whether cancellation of the visa would result in the visa holder being unlawful and liable to detention or whether indefinite detention is 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.
If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely because as an Indonesian citizen he will be able to return to Indonesia. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia, and he may be subject to an exclusion period in relation to some future visa applications.
Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.
The Tribunal gives this consideration some weight against cancellation of the visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations or the best interests of a child would be breached as a result of the cancellation.

Accordingly, the Tribunal does not give this consideration any weight either in support of or against cancellation of the visa.
If the visa is a permanent one, whether the visa holder has strong family, business, or other ties in Australia
As the applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration either in support of or against cancellation of the visa.
Any other relevant matters
The Tribunal accepts that the applicant’s primary aim in coming to Australia was to provide his wife and other family members with greater financial support and that his wish to remain in Australia is similarly motivated.
The applicant is currently working for a motor mechanic’s business in Melbourne has told the Tribunal that he wishes to apply for another visa based on his skills and experience as a motor mechanic. However, there is no evidence before the Tribunal of any qualifications held by the applicant for this position or of any approved nomination or sponsor for the occupation of motor mechanic.
The Tribunal gives these matters some weight to this consideration against cancellation of the visa.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.
Amanda Mendes Da Costa
Member

[2024] AATA 3103

20 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice