Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision to cancel Ms Kung’s Subclass 457 visa should be set aside.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. Relevant to this case, these include the ground set out in s.116(1)(b) of the Act. 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) of the Act if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this case, visa condition 8107 attached to Ms Kung’s Subclass 457 visa. Since Ms Kung’s Subclass 457 visa was granted under cl.457.223(4) of Schedule 2 of the Regulations, visa condition 8107(3) is applicable. This requires Ms Kung to work only in the occupation listed in the most recently approved nomination in relation to her, and only in the business of her sponsor, or an associated entity. In addition, if she ceases employment, the period during which she ceases employment must not exceed 90 consecutive days. There is an exception which includes certain specified occupations not applicable in this case. Ms Kung’s Subclass 457 visa was granted on 21 October 2014 for a period of 4 years on the basis of an approved nomination in the occupation of Pastrycook with her sponsor, Sichuan Cuisine Pty Ltd (Sichuan Cuisine). Sichuan Cuisine notified the Department on 17 February 2015 that Ms Kung had ceased employment with the company effective 13 February 2015. At the hearing, Ms Kung said that her employer told her the company “was selling the business because it was not doing well and I should look for another employer to sponsor me”. There was some evident confusion about the appropriate period for notice of termination as Ms Kung’s contract of employment was silent in this regard. She did not take employment law advice at the time of termination of her employment. Ms Kung told the Tribunal she did not take, or ask for, leave without pay to allow her time to pursue other employment opportunities. She said her last day with Sichuan Cuisine was 28 February 2015. Ms Kung added she was not paid for her last week of work with Sichuan Cuisine and is now pursuing that underpayment with the Fair Work Ombudsman. When advised by Sichuan Cuisine of the sale of the business, Ms Kung said she started looking for work elsewhere and “was lucky to find” Bakers Delight Gordon who agreed to sponsor her. Ms Kung told the Tribunal that she thought she had done all that was necessary following termination of her employment with Sichuan Cuisine because her former registered migration agent told her she “just had to find a new employer within 90 days”. She started working with Bakers Delight Gordon as soon as she finished up at Sichuan Cuisine at the end of February 2015. At no time did her former registered migration agent say she could only start working with her new employer when her new sponsor’s nomination of the position to be occupied by her was approved: that nomination was not approved until 7 December 2015. The Tribunal discussed with Ms Kung visa condition 8107(3)(a) that requires a Subclass 457 visa holder to work only in the occupation listed in the most recently approved nomination, and only in the business of the sponsor (or an associated entity). Now aware of the meaning of condition 8107(3)(a) Ms Kung informed the Tribunal she is considering reporting her former agent’s conduct to the Office of Migration Agents Registration Authority (MARA) for failing to advise her appropriately.
Decision
Reasons for decision
The Tribunal has taken into account all of the available evidence. Having considered all of the circumstances in this case and the evidence before it, the Tribunal is persuaded that the evidence in favour of not cancelling Ms Kung’s Subclass 457 visa outweighs that in favour of cancelling her visa. For these reasons, the Tribunal concludes it should exercise its discretion not to cancel Ms Kung’s Subclass 457 visa. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.Katie MalyonMemberAnnexure A – Extracts from the Migration Act 1958s.116 Power to cancel (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or (aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or (b) its holder has not complied with a condition of the visa; or (c) another person required to comply with a condition of the visa has not complied with that condition; or (d) if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or (e) the presence of its holder in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals; or (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or (fa) in the case of a student visa: (i) its holder is not, or is likely not to be, a genuine student; or (ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or (g) a prescribed ground for cancelling a visa applies to the holder. (1AA) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity. (1AB) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that: (a) incorrect information was given, by or on behalf of the person who holds the current visa, to: (i) an officer; or (ii) an authorised system; or (iii) the Minister; or (iv) any other person, or a tribunal, performing a function or purpose under this Act; or (v) any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and (b) the incorrect information was taken into account in, or in connection with, making: (i) a decision that enabled the person to make a valid application for a visa; or (ii) a decision to grant a visa to the person; and (c) the giving of the incorrect information is not covered by Subdivision C. This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held. (1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose. (2) The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) if there exist prescribed circumstances in which a visa is not to be cancelled.(3) If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. s.140 Cancellation of visa results in other cancellation (1) If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled. (2) If: (a) a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and (b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa; the Minister may, without notice to the other person, cancel the other person's visa. (3) If: (a) a person's visa (the cancelled visa ) is cancelled under any provision of this Act; and (b) the person is a parent of another person; and (c) the other person holds a particular visa (the other visa ), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa; the other visa is also cancelled. (4) If: (a) a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and (b) the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N; the cancellation under subsection (1), (2) or (3) is revoked. oOOoAnnexure B – Extracts from the Migration Regulations 1994Schedule 8 - Visa Conditions 8107 (1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not: (a) cease to be employed by the employer in relation to which the visa was granted; or (b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or (c) engage in work for another person or on the holder's own account while undertaking the employment in relation to which the visa was granted. (2) If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not: (a) cease to undertake the activity in relation to which the visa was granted; or (b) engage in an activity inconsistent with the activity in relation to which the visa was granted; or (c) engage in work for another person or on the holder's own account inconsistent with the activity in relation to which the visa was granted. (3) If the visa is , or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4): (a) the holder: (i) must work only in the occupation listed in the most recently approved nomination for the holder; and (ii) unless the circumstances in subclause (3A) apply: (A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or (B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor must work only in a position in the business of the sponsor or an associated entity of the sponsor; or (C) if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor must work only in a position in the business of the sponsor; and (aa) the holder must commence that work within 90 days after the holder's arrival in Australia; and (b) if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days; and (c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder's position is situated--the holder must: (i) hold the licence, registration or membership; and (ii) comply with each condition or requirement to which the licence, registration or membership is subject. (3A) For subparagraph (3)(a)(ii), the circumstances are that: (a) if the nomination was made before 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or (aa) if the nomination is made on or after 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or (b) the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice. (3B) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8): (a) the holder must work only in the occupation or position in relation to which the visa was granted; and (b) if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days. (4) If the visa is: (a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or (b) a Subclass 402 (Training and Research) visa; or (ba) a Subclass 420 (Temporary Work (Entertainment)) visa; the holder must not: (c) cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or (d) engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or (e) engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified. 8501 The holder must maintain adequate arrangements for health insurance while the holder is in Australia. oOOo
Ratio Decidendi
Legal Principle Established
Technically, Ms Kung did not cease employment as the holder of a Subclass 457 visa: rather, as the holder of a Subclass 457 visa she continued her employment in Australia, albeit with a new employer. Accordingly, she has not breached condition 8107(3)(b). In this regard, the Tribunal has considered the purpose of condition 8107(3)(b) is to ensure that the visa holder continues to be employed and thereby fulfils the purpose for which the visa was granted.[1] The purpose of the Subclass 457 visa program is to assist employers fill skill shortages in their business by sponsoring highly skilled foreign nationals in a nominated occupation. The purpose of the Subclass 457 visa is for holders of that visa to work for an approved sponsor in an approved nominated occupation. By immediately starting work as a Baker with Bakers Delight Gordon following termination of her employment as a Pastrycook with Sichuan Cuisine, the Tribunal finds Ms Kung has breached condition 8107(3)(a) because she worked for just over 9 months with Bakers Delight Gordon before the nomination for her position with her new sponsor was finally approved on 7 December 2015. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. Since that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.[1] Da Sylveria v Minister for Immigration and Border Protection (2016) FCCA 1703, Jarrett J at [24]Consideration of discretion 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 Ms King’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’. In exercising its power to cancel the visa, the Tribunal should have regard to policy as a relevant consideration. However, policy is not binding on the Tribunal.[2] The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or (in the case of the exercise of a discretionary power, as in this case) the preferable decision.[3]The purpose of the visa holder’s travel to and stay in Australia[2] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380 [3] See Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jaocobson JJ) at [34] Ms Kung told the Tribunal had she originally came to Australia from Hong Kong as the holder of a Working Holiday visa. She said it was really hard to find work as a Baker because no one wanted to employ someone who they thought would leave (after 6 months). At first, she found work as a waitress and then in a medical warehouse before managing to find work as a Pastrycook at Sichuan Cuisine, the company that eventually sponsored her Subclass 457 visa.