TIPU (Migration)

[2017] AATA 2510

TIPU (Migration) [2017] AATA 2510 (9 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MD ZIAUL HYDER TIPU
Mrs Tasmanna Islam
Mr Zayyan Hyder

CASE NUMBER:  1704535

DIBP REFERENCE(S):  BCC2017/473894

MEMBER:Catherine Carney-Orsborn

DATE:9 October 2017

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 457 (Business (Long Stay)) visa.

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

Statement made on 09 October 2017 at 2:55pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Period of unemployment must not exceed 90 consecutive days – Unemployment exceeded 90 days – Compassionate grounds – Partner experiencing medical problems - Applicant consistently sought employment – Applicant currently employed - No jurisdiction to review consequential visa cancellations

LEGISLATION

Migration Act 1958, s 116, 140, 348

Migration Regulations 1994, Schedule 8, Condition 8107

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 10 March 2017 made by a delegate of the Minister for Immigration 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) has not complied with a condition of his visa as he was no longer employed by his sponsor. 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 applicants appeared before the Tribunal on 3 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the second named applicant.

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

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(. 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)(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 attached to the applicant’s visa. This condition requires that if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days.

9. It is not in dispute that the applicant ceased employment and that period has exceeded 90 consecutive days.

10. 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

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

12. The applicant provided evidence of a current pending nomination, payslips, work contracts, birth certificate, submissions and a statement from his current employer.

13. The Tribunal has considered all the evidence provided as well as the applicant’s oral evidence and the oral evidence of the second named applicant which was taken separately and independently of the applicant.

14. The applicant was sponsored to work as a Cook.  The Tribunal accepts that the purpose of his stay in Australia is to work.  The applicant has a wife and an infant child who was born in Australia.

15. There is nothing before the Tribunal to indicate that he has not been compliant with his other visa conditions.

16. The applicant states that he has been in Australia and worked for seven and a half years.  He states that if he was to return to Bangladesh it would cause hardship.  He states that it would be difficult to get a job in Bangladesh as a Cook.  He stated that cooks do not have the respect they have in Australia.  He further claims it would be a humiliation for him and cause stress to his family.

17. The applicant gave evidence around the circumstances of his employment history.  That evidence corroborated the earlier evidence he had provided.

18. He states that he voluntarily left his original sponsor as his wife was suffering severe physical and emotional difficulties after giving birth to their son.  He claims that she had no supports in Sydney and was isolated.  He states he worked long hours as a cook and had to travel long distances from his home to place of employment.  He states that there is a Bangladesh community working in Canberra that they are connected to. 

19. In order to assist his wife and protect his child he organised a job in Canberra.  He then voluntarily terminated his employment with his first employer.

20. He claims that the nomination in relation to the second sponsor in Canberra was refused as it was badly handled by the agent.  He states they lodged a second nomination application however the law changed and as it was a Café they withdrew his nomination.

21. He currently has another nomination awaiting finalisation.  He is working with the current nominator.  The nominator provided a statement in which he corroborated the applicant’s claims.  He provided payslips, a work contract and a supporting statement.

22. All of the above is corroborated by the evidence on the Department’s files.  The Tribunal accepts the above circumstances and that the applicant wants to continue to work for the current nominator and has consistently sought to secure employment as a Cook.

23. The applicant voluntarily left the employment of his original sponsor.  This was something the applicant chose to do, however the Tribunal does accept that his wife was suffering isolation and exhaustion after the birth of their child and did not have any support in Sydney.

24. The Tribunal accepts that the applicant was attempting to secure employment within the 90 days and had that employment however the nomination was refused.  He claims that this was due to an error by the agent.  The independent records show that the second nominator did lodge a further nomination.  The Tribunal accepts that this shows there was a genuine intention to provide employment to the applicant in Canberra.

25. The second nomination was withdrawn when there was a change in the law.  The applicant is currently the subject of another nomination application which is being considered by the Department.

26. The Tribunal is satisfied on the evidence that the applicant wants to work as a Cook in Australia.  The Tribunal is satisfied that his wife’s condition after the child was born and the change in law were circumstances beyond his control.

27. The Tribunal was concerned that it has been a long period of time that he has been in breach however when looking at all the evidence as a whole is satisfied that his intention has been in work and that he has been working in Australia.

28. He is currently being nominated by a restaurant and the restaurant’s owner provided a clear statement as to the value of the applicant to his business and their need to continue to have his services.

29. The Tribunal accepts due to the corroborating and independent evidence that he is currently working for that restaurant.

30. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

    Catherine Carney-Orsborn
    Member