ZAHOOR (Migration)

[2020] AATA 5049

ZAHOOR (Migration) [2020] AATA 5049 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sohail ZAHOOR
Mrs Noor Fatima
Mr Shahmeer Hussain

CASE NUMBER:  2006013

HOME AFFAIRS REFERENCE(S):          BCC2019/5116656

MEMBER:Joanne Bakas

DATE:13 October 2020

PLACE OF DECISION:  Adelaide

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 Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 13 October 2020 at 12:16pm

CATCHWORDS
MIGRATION – cancellation – Subclass 457 (Temporary Work (Skilled)) visa – breached conditions – ceased employment for more than 90 consecutive days – sponsor’s fraudulent behaviour – applicant’s resignation and attempt to find another employer – driving taxi in breach of visa condition for 40 days – car accident and medical treatment – young child – decision under review set aside

LEGISLATION
Migration Act 1958, s 116(1)(b), 140(1), 348
Migration Regulations 1994, condition 8107(3)(b)

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 18 March 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 that the Minister was satisfied that the applicant did not comply with a condition of their visa; in this instance condition 8107(3)(b) attached to the applicant’s 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 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 22 September 2020 to give evidence and present arguments.

5. 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

6. 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?

7. 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 attached to the applicant’s visa. This condition requires at clause 8107(3)(b) that if the visa holder ceases employment the period during which the visa holder ceases employment must not exceed 60 days.

8. It is not disputed by the applicant that he ceased work for his nominated sponsor, 2nds IT Pty Ltd on 19 September 2019. He submits that this was due to his employer terminating his employment because he kept complaining about the employer retaining cash from his fortnightly pay. 

9. The applicant’s evidence included that he went overseas from 17 December 2019 to 15 March 2019 for his wedding.  When he arrived back in Australia with his wife he had extra expenses and could not afford for his employer to keep $960.00 per fortnight from his pay, as he had been doing.  His wife was pregnant and he had to pay for all of her hospital costs.  He did have private health insurance but his wife did not meet the 12 month wait period required by the insurer.  He kept pushing his employer for some relief but this was not forthcoming and his view is that he consequently had his employment terminated on 19 September 2019 as a result.

10. After losing his employment, he commenced driving a taxi for some income on a part time basis but he had a serious motor vehicle accident on 30 October 2019 and has not been able to work since. 

11. The applicant concedes that he is in breach of his visa conditions and has been from 19 September 2019. 

12. As the applicant has ceased employment for more than 60 consecutive days, he is in breach of condition 8107 that is attached to his visa and the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As this 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

13. 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

14. The applicant submits that he first arrived in Australia on a student visa on 30 August 2014.  He initially studied in Canberra and then moved to Sydney where his brother lived. He started working part time at 2nds IT Pty Ltd in December 2017 following the assistance of a contact of his brother’s employer.  Once he commenced working there this employer suggested that they sponsor him for a work visa.  The employer applied for sponsorship in February 2018 and the applicant’s visa was granted on 13 September 2018 for a two year period.

15. He did not wish to be terminated but this was an outcome of complaining  to his employer about the cash back the employer was retaining from his fortnightly pay.

16. He was hoping to find an alternate business sponsor within the 60 days but as he had a serious motor vehicle accident while working as a taxi driver on 30 October 2019 he has not been able to. 

17. The applicant  provided medical evidence to the Tribunal prior to the hearing and during the hearing regarding the medical treatment he is required to undertake which is currently being funded via a compulsory third party claim (CTP).  He regularly sees his general practitioner, psychologist and psychiatrist.  During the hearing the applicant also forwarded to the Tribunal a letter from NRMA Insurance dated 13 March 2020 which details that following their investigations, they accept liability for the payment of statutory benefits after 26 weeks from the date of the motor accident and they agree that the applicant was not at fault or mostly at fault and that he sustained more than a minor injury. The letter also details that he will continue to receive weekly income payments until 28 April 2021for any periods of incapacity or up until his income or work situation changes.  The applicant contended that given his circumstances, he has compelling reasons to stay in Australia.  Should he have to leave he will not be able to work to fund his medical needs.

18. The Tribunal is cognisant of the circumstances that the applicant was granted the visa for the purpose of being able to temporarily fill a skill shortage in a particular area and to work in Australia for an approved sponsor in a skilled occupation for which he was specifically nominated and which could not be filled from within the Australian workforce.

19. The applicable visa conditions allow the applicant 60 days from ceasing employment with the sponsor in which to pursue and secure a new sponsor or to apply for another visa in line with a valid purpose for wishing to remain in Australia, or alternatively, to arrange to depart Australia. The applicant stated at the hearing that he has not been able to find another sponsor.  There is otherwise no evidence before me that he has had any other nominations lodged by employers since his employment with his sponsor ceased.  The cessation of employment with his sponsor means that his ongoing stay with no sponsor is not in line with the purpose of the visa.  During the 60 day period a person continues to hold the visa for an extended period to continue searching for another sponsor, or alternatively to await the outcome of an appeal by a potential sponsor to this Tribunal.

20. The applicant gave his evidence in an honest and forthright way and the evidence establishes to the Tribunal’s satisfaction that the applicant is requiring a range of medical interventions and is in receipt of income support via CTP.

21. The Tribunal is satisfied that the applicant is no longer employed by his approved sponsor in the occupation he which he was granted a temporary work skilled vis which is contrary to the purpose for which the visa was originally granted.

22. However, The Tribunal is also satisfied that the evidence provided by the applicant in regard to his medical condition and treatment and insurance claim, weighs substantially in favour of not cancelling the visa.

    The extent of compliance with visa conditions

23. The applicant’s subclass 457 visa was granted subject to condition 8107.

24. The Tribunal acknowledges and takes into consideration that it has been in excess of the 60 continuous day period allowed under condition 8107(3)(b) for a visa holder to secure a nomination with another approved sponsor.

25. The applicant has not been able to find another sponsor but contends his efforts have been impacted upon as a result of his motor accident which occurred some 40 days after the cessation of his employment. 

26. Nevertheless, as the applicant has not as yet been able to find an alternate sponsor or lodge a new visa application the Tribunal gives this consideration some weight in favour of cancelling the visa.

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

27. The applicant submits that it will be very difficult financially and emotionally and generally on his young family if he had to return to Pakistan.  He will not be able to pay for basic expenses for himself or his family as he cannot work for now.  His father is retired and his wife’s mother has been in hospital in June 2020 receiving treatment for a heart condition. There is no one in Pakistan that can support him and his family.

28. He has no issue returning to Pakistan once he is able to work and does not require treatment.

29. The Tribunal accepts that there will be a significant degree of hardship that will result to the applicant and his family members, should the visa be cancelled in relation to his current injuries and treatment requirements and current lack of ability to earn an income.

30. The Tribunal considers that the applicant’s circumstances regarding the hardship factor weigh substantially against cancellation of the visa.

    Circumstances in which ground of cancellation arose

31. The applicant submits that the ground for cancellation arose because he complained to his employer about taking back $960 cash per fortnight back from his pay. He tried to speak to Fair Work Commission in towards the end of March or beginning of April 2019. After discussing his situation with the Fair Work Commission and some friends he was encouraged to speak to his employer again because he was concerned about his visa especially given his wife’s pregnancy.

32. After his employer terminated his employment he again called Fair Work Commission and was informed that they would organise a meeting.  He did not hear back and then he had his motor accident.

33. The Tribunal notes the delegates’ decision which was provided by the applicant states that the applicant worked as a taxi driver after his employment was terminated and he has not lodged any new nomination or visa in association with any other employer.

34. There was a period of at least 40 days after he ceased employment before his motor accident.  However, the applicant has not provided any evidence of even pending options for new business sponsors considered in this period.

35. These circumstances weigh somewhat in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

36. There is no evidence before me indicating the applicant has not been cooperative with the department and he has responded to the Notice of Intention to Consider Cancellation issued to the applicant on 2 March 2020.  

37. However, based on the applicant’s evidence he worked as a taxi driver.  As detailed by the delegate in their decision, this is a breach of the conditions of the visa the applicant was required to adhere to. The applicant stated at the hearing that he did not tell the Department of Home Affairs of his work as a taxi driver as it was only part time.

38. The Tribunal also considers that this factor weighs somewhat in favour of cancelling the visa.

    Whether there would be consequential cancellations under s.140

39. If the applicant’s visa is cancelled, his wife’s will also be as will his son’s as members of the same family unit. 

40. The Tribunal affords this consideration a little weight against 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, or whether indefinite detention is a 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

41. In circumstances where the visa is cancelled, the applicant and his dependents will no longer have suitable visa status to allow them to remain in Australia. He will thus become an unlawful non-citizen liable for detention under s.189 of the Act and removal under s.198 of the Act.

42. The applicant would also be subject to s.48 of the Act which would limit the potential to lodge further visa applications onshore in Australia.

43. As such, the Tribunal gives this consideration a little weight against cancelling 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

44. In considering whether to exercise its discretion to cancel the applicant's visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia's responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

45. As noted by the delegate, the applicant’s child’s visa was granted because he is a member of the family unit of the primary visa holder. If a decision is made to cancel the applicant’s visa, the child’s visa will consequentially be cancelled as a result. The delegate notes that this will keep the family’s status aligned and is therefore unlikely to result in a separation of the family unit.

46. The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration.

47. The applicant’s son is not yet one year old.  In the event of a visa cancellation outcome, it is unlikely to cause the breakup of the visa holder’s family unit or separation of any family members.  Given the child’s age, the Tribunal does not consider that the applicant’s son would experience hardship readjusting to life outside of Australia, if required to depart.  However, as stated above, the Tribunal accepts that due to the applicant’s injuries and current inability to work, the applicant will not be able to support his family which will result in a significant hardship for the child. 

48. In weighing up the best interests of the child as a primary consideration, the Tribunal considers that this factor weighs somewhat against cancelling the visa.

    Any other relevant matters

49. There are no other relevant matters evident or raised by the applicant.

50. In considering the circumstances as a whole, the Tribunal is satisfied that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled.

    DECISION

51. 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.

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

    Joanne Bakas
    Member