1601526 (Migration)

[2016] AATA 4114

1601526 (Migration) [2016] AATA 4114 (18 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr CHI CUONG VO
Miss LAN HUONG HOANG

CASE NUMBER:  1601526

DIBP REFERENCE(S):  BCC2015/3769316

MEMBER:Dione Dimitriadis

DATE:18 July 2016

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 18 July 2016 at 5:53pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 February 2016 made by a delegate of the Minister for Immigration 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 the first named applicant had not complied with condition 8107. The delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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.

5. The first named applicant (the applicant) appeared before the Tribunal on 27 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Xuan Thang Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CLAIMS AND EVIDENCE

8. The applicant was granted a Subclass 457 visa on 3 March 2015.

9. Information in the delegate’s decision is that the applicant was granted a visa to work in the occupation of Café or Restaurant Manager (ANZSCO Code 141111) for the sponsoring employer, Mai Hong Duong Tran (the sponsor). On 12 August 2015 the Department of Immigration (the Department) received written notification from the sponsor that the applicant ceased employment with them effective on 30 May 2015. However, the applicant informed the Department that he ceased employment with the sponsor in August 2015. The applicant’s representative stated in a submission to the Department that the sponsor’s business was sold to a new owner.

10. On 25 January 2016 the Department issued a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Migration Act 1958 to the applicant. The NOICC stated that the Department received written notification from the sponsor that the applicant ceased employment with the sponsor effective from 30 May 2015. The NOICC informed the applicant that the standard business sponsor who nominated him in the most recently approved nomination for the visa is Mai Hong Duong Tran whose nomination was approved on 3 March 2015. The NOICC informed the applicant that this indicates that he is in breach of paragraph 8107(3)(b) of condition 8107 which was attached to his visa, because it appears that he has ceased employment with the sponsor for a period in excess of 90 consecutive days. The NOICC invited the applicant to comment on the ground(s) for cancellation identified in the letter and to give reasons why his visa should not be cancelled.

11. On 29 January 2016 the Department received an email from the representative who stated that the applicant and his wife were granted the visas on 3 March 2015. The applicant had worked for the sponsor, Bay Bua Restaurant – Vietnamese Cuisine since the date of grant until the sale of the restaurant was finalised in August 2015. Since the new owner of the restaurant did not wish to continue to sponsor the applicant, the applicant lost his job in the restaurant. From August 2015 until January 2016, the applicant tried to find a job but has had little success due to his Subclass 457 visa and the requirements of such a visa applicable to the employer. He has now successfully found an employer that is willing to sponsor him for a Subclass 457 visa. The representative enclosed a sponsorship application and a nomination application. The representative stated that it was not the applicant’s decision to cease employment with the sponsor. He has now been nominated for a new position.

12. On 8 February 2016 the delegate made a decision to cancel the applicant’s visa. The delegate found that the applicant had not complied with condition 8107 and was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. The delegate stated that the occupation listed in the nomination is not one specified in the relevant instrument referred to in paragraph 8107(3A) to exempt the applicant from having to comply with the requirements of paragraph 8107(3)(a). Therefore, while the applicant continues to hold a Subclass 457 visa, he can only lawfully work in Australia for that the sponsor or an associated entity of the sponsor.

13. Information in the delegate’s decision record is that a new nomination application was lodged on 29 January 2016 by Tuyet Mai Hoang. Information in the Department’s records is that this nomination was withdrawn.

14. On 20 May 2016 the Tribunal received a submission from the representative and a number of documents including copies of the following:

    ·Three photographs of a restaurant;

    ·Menu of VN Street Foods;

    ·Projected income statement;

    ·Letter dated 27 April 2016 from VN Street Foods Pty Ltd to the Department;  

    ·Contract of employment between VN Street Foods Pty Ltd, and the applicant dated 20 April 2016;

    ·Acknowledgment by the Department of a nomination application and sponsorship application by VN Street Foods Pty Ltd on 18 May 2016;

    ·Letter dated 20 May 2016 to the Tribunal from Xuan Thang Nguyen, director of VN Street Foods Pty Ltd;

    ·Statutory Declaration declared by the applicant on 20 May 2016.

    The Tribunal hearing

15. The Tribunal informed the applicant that the visa was cancelled because he had not complied with condition 8107 and the delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. The Tribunal informed the applicant that it would look at whether there were grounds for cancelling the visa and if there were grounds, the Tribunal would consider whether the visa should be cancelled. The Tribunal also explained to the applicant that it has no jurisdiction to review the cancellation of the second named applicant’s visa.

16. The applicant stated that he last worked in August 2015. He is not working at the moment. His wife is not working. They are surviving because he is trading currency. He works at home as a foreign currency trader. The Tribunal asked the applicant if he is aware that he cannot work. The applicant stated that he is not allowed to work for another. The Tribunal informed the applicant that he is not allowed to work. The Tribunal informed the applicant that he has condition 8101 on his visa. The applicant stated that he has condition 8101 ‘no work’ on his bridging visa.  

17. The Tribunal informed the applicant that his sponsor stated that he stopped working on 30 May 2015 whereas the applicant stated that he stopped working in August 2015. The applicant stated that when he came back from his country (Vietnam) on 19 March 2015, he started working for the sponsor on 2 May 2015 and stopped working for her in August 2015. He does not understand why she wrote to Immigration. The applicant stated that he kept working until August 2015. He has payment through the bank account from the sponsor. He also has a paper that she sent him showing the first roster. The applicant received payment that she forwarded to his bank account and she wrote a list of the days that he worked for her. The applicant stated that Mai Hong Duong Tran was the sponsor and he worked at her Vietnamese restaurant in Potts Point. He received some payment. He was not paid regularly and it was not frequent. He received payment in May twice and he received payment in November twice.

18. The applicant stated that he does not understand why Mai Hong Duong Tran wrote to the Department that he stopped working on 30 May 2015. He has enough information that he worked till August 2015. The Tribunal asked the applicant why he was not paid in June and July. The applicant stated that he has no idea. She paid the applicant leave and put down in writing the days that he worked. The Tribunal informed the applicant that it is interested in verifiable bank documents. The Tribunal asked the applicant if he has put in a tax return for the year ended 30 June 2015. The applicant stated that she did not give him a PAYG payment summary or payslips. After he stopped working for her in August, he asked her several times about his salary and tax return. She said that she was waiting for the accountant to satisfy that. He kept asking. In November, she paid him $1,000 and then in another week, she paid him $1,000.

19. The Tribunal informed the applicant that it may not be satisfied that he continued to work until August.  The applicant stated that his information is correct and he has friends who can be witnesses about his work. He only has bank statements. The Tribunal asked the applicant why he did not pursue the sponsor for payments in June and July if he was actually working there. The applicant stated that in the contract they agreed that he would receive payment every month.

20. The Tribunal asked the applicant if he approached the Department and told them that he was no longer working for the sponsor. The applicant stated that, after he stopped working for the sponsor, he had 90 days to find another sponsor for his visa so in September he found a new sponsor and negotiated a contract with the new sponsor. The second employer opened the business. The second employer lodged a sponsorship and nomination to sponsor the applicant after the applicant received a NOICC.

21. The applicant stated that he does not know if the nomination was refused. The Tribunal asked the applicant if there is a current approved nomination. The applicant stated that he does not know if the nomination was approved. A new nomination was lodged on 18 May 2016.

22. The Tribunal informed the applicant that it appears that there is no current approved nomination in relation to him. The applicant stated that it has not been approved yet. The new sponsor is Xuan Thang Nguyen and he also has a Vietnamese restaurant.

23. The Tribunal informed the applicant that whether he stopped working for the sponsor on 30 May 2015 or August 2015, the period during which he ceased employment has exceeded 90 consecutive days. The Tribunal informed the applicant that it appears that he has breached condition 8107. The applicant stated that it was out of his control. The sponsor sold the business and the second employer started a new business. He had no control over these things. He was told to wait to lodge the nomination and the sponsorship. The Tribunal brought to the applicant's attention that he is the visa applicant and he does not have the control over the lodging of the sponsorship and the nomination applications. The applicant stated that he understands.

24. The Tribunal asked the applicant about the purpose of his travel to and stay in Australia. The applicant stated that he came to Australia on a student visa and he has stayed here since 2010. He studied a Bachelor of Business in Hospitality and Tourism Management at Kaplan Business School and finished in 2013. He did the IELTS test. During his studies, he started working part-time for the sponsor at the beginning of 2011 and after he finished his Bachelor degree she offered him the position of Restaurant Manager.

25. The applicant applied for a Subclass 457 visa. The nomination by the sponsor was approved. The purpose of studying and working here is that he would like to have permanent residence. The applicant stated that he would face hardship for his wife and him because they have lived here for several years since 2009/2010. They love Australia and they consider Australia their home. If he has to leave Australia, it is very difficult. They will have to pack everything and return to their home country and start all over again. His wife does not have qualifications. She studied at high school and then she studied Commercial Cookery but she did not finish that course. Ms Hoang is not studying. If they go back to Vietnam and she has no qualification they need to start all over again.

26. The applicant stated that it is difficult to apply for Subclass 457 visa or other visa from his country, because his visa was cancelled. He has a three year restriction on his visa for a further application. The representative stated that the applicant will be affected by Public Interest Criterion (PIC) 4013. The Tribunal informed the applicant that this may not be the case and it would allow his representative to make a submission after the hearing.

27. The applicant stated that based on his study and qualifications, he has a dream about Vietnamese food. His goal and the new employer’s goal are to serve traditional Vietnamese food in Australia.

28. The applicant stated that he has complied with visa conditions. He had 90 days to find a new employer and after the first sponsor, he could not work for anyone. He did not work for anyone else. The Tribunal informed the applicant that it has concerns as to whether his currency trading is work and whether he is breaching the conditions of his bridging visa by doing that. The applicant stated that he understood that the condition of ‘no work’ was that he must not work for other people. It is part of his income and it helped him to pass through about a year now. He had the condition not to work so he had to find some finances to support them to live. The Tribunal informed the applicant of the requirements of condition 8101.

29. Regarding the degree of hardship that may be caused if the visa remains cancelled, the applicant stated that it is very hard to leave Australia at this time. He hopes that the decision is not made before the decisions on the nomination and sponsorship are made. It is his dream and his future.

30. The Tribunal asked the applicant if he wanted to say anything else about the circumstances in which the ground for cancellation arose. The applicant indicated that he has given evidence about this.

31. Regarding his past and present conduct towards the Department, the applicant stated that he has complied with all the rules and the law since he came to Australia. He misunderstood condition 8101. If he does not have financial support, they both cannot survive.  

32. The representative stated that the applicant misunderstood what condition 8101 meant but he had no other means of support. She will advise him after the hearing that he will have to find other means of support without working and to comply with that condition.

33. The applicant stated that he thinks that he was used by the \ sponsor and exploited. When he signed a contract on 3 May, he worked for the sponsor until August, but she wrote to the Department that he stopped working in May 2015. The sponsor did not notify him about that. The applicant stated that he worked but payment did not come through when he worked there. After he stopped working there, he asked her again and again and then she sent him the money. The applicant stated that the new employer and he will explore their dreams about a Vietnamese restaurant.

34. The applicant stated that his wife is dependent on his visa. It is not her fault that her visa was cancelled. It is hurtful for her if she has to go back because she does not have any qualifications or job skills. When she goes to Vietnam she will need to study again or do a hard job to survive. Ms Hoang arrived in Australia in 2009 and she finished year 12. He met his wife in Australia and they married on 22 July 2014.

35. The applicant stated that his father and mother are in Vietnam, in North Vietnam. The applicant has his younger brother in Australia.

36. Mr Xuan Thang Nguyen gave evidence that he owns a restaurant in Marrickville. The restaurant started operating in November 2015. Mr Nguyen is a director of VN Street Foods Pty Ltd. Mr Nguyen stated that his written statement is correct. Mr Nguyen stated that employees are very important to his business. Now he has plans to expand in Australia. He needs someone to stand in the business in Marrickville. He has found the applicant and although his English is not very good to run the whole business, there are many Vietnamese people in Marrickville and the applicant’s skills are very good with Vietnamese people to be front of house and managing all the service staff. That is what the applicant would be doing. The position is Restaurant Manager. 

37. Mr Nguyen stated that if the visa is cancelled, he has to look for other staff. Mr Nguyen is sponsoring the applicant. He has never seen the applicant work. This is Mr Nguyen’s fourth business. He already owned three businesses before. Mr Nguyen has only just lodged the nomination application because he knows about the applicant’s case and then he started the process and his business is quite busy.   

38. There are three full-time and the rest are casual. Mr Nguyen is the chef and there is an assistant chef and a cook. These three positions are full-time. All the front of house positions are casual or part-time. There are two waiters and drivers for home delivery. They do catering as well. There are 19 seats in the restaurant and they have applied to Marrickville Council for approval for outside seating. The Tribunal brought to Mr Nguyen’s attention that it does not sound like it is very big restaurant and there are about six tables or less. Mr Nguyen stated that the name is ‘Street Food’ and his plan is that people sit outside. He makes the kitchen very big to serve the food. It is one of the largest kitchens in Marrickville. Three more tables would fit outside. He is trying to introduce western people to traditional North Vietnamese food. When people walk past they will see that the tables are always full. That is the best advertising. Mr Nguyen stated that the applicant gave him a lot of ideas about the packing and the marketing and to expand and attend food markets.

39. The Tribunal asked Mr Nguyen how it will affect them if the visa remains cancelled given that the applicant has never worked for the employer.  Mr Nguyen stated that he will have to look for a person at the same level as the applicant and it takes a lot of time. Mr Nguyen stated that it will change his plans as well. It is very hard to find managers that have the same ideas as Mr Nguyen. Even though Mr Nguyen has never worked with the applicant, he trusts him. He will not have to stay in the restaurant and explain his business.

40. The representative stated that Ms Hoang will not add anything to the evidence that has been given. Ms Hoang did not provide a statement in writing to the Tribunal before or after the hearing.  

41. The representative requested that the Tribunal allow time so that a decision on the nomination could be made by the Department. The Tribunal informed the applicant that this [having an approved nomination] may not assist for the decision that the Tribunal will make.  The Tribunal allowed until 17 June 2016 for further evidence and a submission. The Tribunal informed the applicant that if there is any evidence to show that he did work until August 2015, he can provide it as well. The Tribunal informed the applicant that it has concerns that he stopped working in May. The representative stated that they will try to retrieve those records.

1. On 17 June 2016 the Tribunal received from the applicant’s representative a number of documents including copies of the following:

   ·Grant of Bridging E visa to the applicants on 16 February 2016;

   ·Tax invoice issued to the proposed employer VN Street Foods due on 10 August 2016;

   ·Account to VN Street Foods for orders to restaurant via ‘Delivery Hero’ for the period 30 May 2016 to 5 June 2016.

2. The representative also provided a submission that the director of the sponsor, Mr Xuan Thang Nguyen, stated that the review applicant suggested the idea of promoting the business online via different websites such as ‘Delivery Hero’ and ‘Menulog’. The representative stated that Mr Nguyen was too nervous to mention it in “such a formal environment” at the hearing.

3. The representative stated that the circumstances in which the ground for cancellation arose were beyond the applicant’s control. After the Subclass 457 visa was granted, the applicant was left stranded as the business was sold. A second employer lodged the sponsorship and the nomination very late and only after the Department issued the NOICC. The representative stated that “the 2^nd sponsor tried to exploit the review applicant’s labour and took advantage of the review applicant’s vulnerability.” The representative stated that since the grant of the Subclass 457 visa, there are extenuating and compassionate circumstances that developed over which the applicant had no control. The representative stated that the material and evidence outweigh the grounds to cancel the applicant’s visa.

4. The representative stated that PIC 4013 has no relevance in this case. However, the representative stated that PIC 4014 is relevant and because the applicant holds a Bridging E (Class WE) visa, any Subclass 457 visa application made by the applicant will be refused because he does not meet PIC 4014. Once the decision to affirm the cancellation is made, the applicant must depart Australia and the 3 years’ exclusion period shall apply from the date of departure.

5. On 22 June 2016 the Tribunal received from the representative approvals by the Department on 22 June 2016 of VN Street Foods Pty Ltd as a standard business sponsor and an approved nomination of the position of Café or Restaurant Manager in relation to the applicant.

   FINDINGS AND REASONS

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 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. Amendments to Condition 8107 were made on 1 July 2013 that applied to all visas in effect on that date (Migration Legislation Amendment Regulation 2013 (No.3)). In relation to the holder of a Subclass 457 visa granted on the basis of being sponsored by a standard business sponsor, condition 8107 requires that the holder must work only in a position in the business of the standard business sponsor or an associated entity of the sponsor (subject to limited exceptions): condition 8107(3)(a)(ii)(B). The holder must commence that work within 90 days after the holder’s arrival in Australia: condition 8107(3)(aa). If the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days: condition 8107(3)(b).

8. The applicant stated at the hearing that he worked for the sponsor until August 2015. The delegate’s decision indicates that the sponsor informed the Department that the applicant stopped working for the sponsor on 30 May 2015.  

9. The Tribunal accepts that the applicant commenced working part-time for the sponsor from 2012 whilst he was studying a Bachelor of Business in Hospitality and Tourism Management. The Tribunal also accepts that the applicant began working full-time as a Restaurant Manager for the sponsor from 2 May 2015 after the applicant returned to Australia. He was granted the Subclass 457 visa on 3 March 2015. Condition 8107(3)(a)(i) requires that an applicant must work only in the occupation listed in the most recently approved nomination for the holder. That occupation was a Café or Restaurant Manager

10. There is little documentary evidence to support the claim that the applicant ceased working for the sponsor in August 2015, other than the applicant’s own evidence. Although the applicant stated that he received payment from the sponsor through the bank account and he has a paper showing the first roster, he did not provide this evidence to the Tribunal. There is no documentary evidence that the applicant worked in June or July 2015. The applicant stated that he received payments in November 2015, after he was no longer working for the sponsor, but he has not provided evidence of this. The applicant stated that the sponsor wrote a list of the days that he worked for her, but he did not provide a copy of this document to the Tribunal. The Tribunal does not accept the applicant’s evidence that he stopped working for the sponsor in August 2015. The Tribunal finds that the applicant stopped working for the sponsor on 30 May 2015.

11. The applicant has now found a new employer which was approved as a standard business sponsor. This employer, VN Street Foods Pty Ltd, has an approved nomination of an occupation in relation to the applicant. The nomination was approved on 22 June 2016. The Tribunal is satisfied that the applicant, whose last substantive visa was a Subclass 457 visa that was granted on the basis that he met the requirements of subclause 457.223(4), ceased employment in May 2015 and the period during which the applicant ceased employment exceeded 90 consecutive days.

12. The Tribunal accordingly finds that the applicant has not complied with condition 8107(3)(b) of his Subclass 457 visa.

13. 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

14. 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’.

    The purpose of the visa holder’s travel and stay in Australia

15. The applicant came to Australia to study and graduated in a Bachelor of Business in Tourism and Hospitality Management. He also worked part-time at a restaurant and was then sponsored by the sponsor for the Subclass 457 visa. The nomination by the sponsor, Mai Hong Duong Tran, was approved on 3 March 2016 for the applicant to work as a Café or Restaurant Manager (ANZSCO code 141111). The applicant was granted a Subclass 457 visa on 3 March 2015. The applicant stated that he started working full-time in May 2015. The applicant stated that he stopped working for the sponsor in August 2015. The Tribunal has found that he stopped working for the sponsor on 30 May 2015. The applicant stated at the hearing that the purpose of studying and working here was to get permanent residence.

16. The applicant has now found a new employer to sponsor him. The nomination was approved on 22 June 2016.  

17. The Tribunal finds that the purpose of the applicant’s travel to and stay in Australia was to study in Australia and then to work in Australia. The purpose of the applicant’s stay in Australia, at the time he applied for a Subclass 457 visa, was to work as a Restaurant Manager for the sponsor. The Tribunal finds that the purpose of working as a Restaurant Manager for the sponsor no longer exists as the applicant ceased working for the sponsor on 30 May 2015.  

18. The applicant gave evidence that he found another employer to sponsor him. This employer was approved as a standard business sponsor and the nomination was approved by the Department on 22 June 2016.   

19. The applicant was consistent in his evidence about his employment. He stated that he stopped working for the sponsor in August 2015 although the sponsor informed the Department that he stopped working on 30 May 2015. The applicant has little documentary evidence to support the claim that he stopped working in August 2015, other than his own evidence. There are no bank statements, payslips, PAYG payment summary, or other verifiable documentary evidence. 

20. The applicant was granted a Subclass 457 visa which is a temporary visa. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The applicant was granted the visa to work in Australia for an approved standard business sponsor in a skilled occupation for which he was nominated. The Tribunal finds that this purpose no longer exists in relation to the applicant.

    The extent of compliance with visa conditions

21. The Tribunal is satisfied that the applicant did not comply with condition 8107.

22. The Tribunal has also considered whether the applicant complied with condition 8101 which is attached to his Bridging E visa which he was granted after his Subclass 457 visa was cancelled. The applicant has given evidence that he has not worked for the new employer and that he has not been working for others. However, he did say at the hearing that he considered that condition 8101 meant that he could not work for others. The applicant gave evidence that he has been working from home doing foreign currency dealing.  

23. Condition 8101 requires that the holder must not engage in work in Australia. Regulation 1.03 defines work as ‘an activity that, in Australia, normally attracts remuneration’. The definition provided in r.1.03 has been interpreted to include an individual who does not personally receive remuneration for an activity. It is sufficient that it ‘be an activity that normally attracts remuneration’ (Braun). In considering whether or not the review applicant has undertaken 'work' as defined in the Regulations, the Tribunal has had regard to the Federal Court decision in Kim v Witton, where Sackville J considered a number of authorities in relation to the definition of work and then, at 268, stated:

    The test is not whether the individual performing the activity receives remuneration for it, nor whether he or she performs the activity for commercial purposes or for some other reason. The test to be applied is an objective one, namely, whether the ‘activity’ performed by the individual normally attracts remuneration in Australia.

24. The Tribunal is satisfied that a foreign currency trader is an activity that, in Australia, normally attracts remuneration. The applicant appears to have misunderstood the requirements of condition 8101. Nevertheless the Tribunal is satisfied that, after the applicant’s Subclass 457 visa was cancelled, the applicant did not comply with condition 8101.

    Degree of hardship that may be caused  

25. The representative stated in a submission that the applicant and his wife would suffer financially. They have been residing in Australia for six to eight years and they regard Australia as their home. For them to leave Australia means packing up their whole life in Australia and returning to Vietnam to start all over again. The applicant stated that it is very hard to leave Australia at this time. It is his dream and his future. 

26. The Tribunal accepts that the visa cancellation would cause some hardship to the applicant and his wife. The applicant came to Australia in about 2010 according to the representative and his wife came to Australia earlier than that. There is evidence that the applicant has ties to the Australian community and he has one of his brothers living here. The applicant is 29 years old and has skills as a Café and Restaurant Manager. He has completed a Bachelor of Business in Hospitality and Tourism Management in Australia. The Tribunal is satisfied that he would be able to re-establish himself in Vietnam, his home country. Whilst the cancellation means that the applicant and his wife would have to return to Vietnam, the applicant held a temporary visa. The Tribunal finds that he would not have had a real expectation that he would be able to remain in Australia on a permanent basis. There is no evidence before the Tribunal that the applicant will not be able to work and support himself in Vietnam where his parents live, he speaks the language and he has skills. The applicant’s wife has also studied in Australia in high school and she also did some study in Commercial Cookery. There is no evidence that she would be unable to find work in Vietnam.

    Circumstances in which ground of cancellation arose. 

27. The ground for cancellation arose when the applicant ceased employment with the sponsor for over 90 consecutive days: condition 8107(3)(b). The Tribunal accepts that the applicant worked for his former sponsor in May 2015. Although the applicant has claimed that he worked for the sponsor until August 2015, he did not provide any documentary evidence to support this, such as bank statements to show wages being deposited in his bank account.  The applicant was granted the Subclass 457 visa on 3 March 2015 and he gave evidence at the hearing that he started working for the sponsor on 2 May 2015. The applicant claimed that the sponsor sold the business and this was beyond the applicant’s control. The Tribunal accepts that the applicant was unable to work for the sponsor because the business was sold. However, on the evidence, the Tribunal does not accept that he stopped working for the sponsor in August 2015. There were no bank statements, payslips or PAYG payment summary to support this claim. The applicant stated at the hearing that he had some documentary evidence of his employment with the sponsor, but he did not provide this evidence to the Tribunal. The Tribunal considers that, if the applicant had worked for over three months for the sponsor, there would be documentary evidence to support this, but the applicant did not provide bank statements, payslips, roster sheets or a PAYG payment summary to support this claim. The Tribunal finds that the applicant stopped working for the sponsor on 30 May 2015.

28. The applicant has had an opportunity to mitigate the breach by finding employment with another sponsor. The applicant found an employer (the second employer) to sponsor him but the sponsorship application and the nomination application were lodged after the Department issued the NOICC. The representative stated that this second employer was trying to exploit the applicant’s labour and took advantage of his immigration status and the applicant had to leave this second employer.

29. The information before the Tribunal is that this second employer did not proceed with the applications and the applicant then found another employer that lodged a nomination application and sponsorship application. On 22 June 2016 the sponsorship application by VN Street Foods Pty Ltd was approved and the nomination in relation to the applicant was approved. The representative stated that VN Street Foods Pty Ltd was unable to lodge the sponsorship and nomination applications until recently as their financials had not been completed and they were a start-up business and had been trading for less than 12 months.   

30. At the time of the Tribunal’s decision, it has been over one year and one month since the applicant was employed by the sponsor. Even though the applicant was unable to continuing working for the sponsor because the business was sold, the Tribunal nevertheless finds that the applicant’s failure to commence employment with a new approved business sponsor after the non-compliance represents a significant breach of condition 8107.

    Whether there would be consequential cancellations under s.140

31. The visa of the applicant’s spouse was cancelled under s.140 of the Act. Miss Lan Huong Hoang held a Subclass 457 visa as the spouse of the applicant. The Tribunal has considered the impact on Ms Hoang. The Tribunal accepts that there will be some hardship on Miss Hoang. However, she will leave Australia with her spouse, the applicant. They are both Vietnamese nationals and they will be able to apply in the future for a further visa to Australia. The Tribunal is not satisfied that the impact on Miss Hoang is sufficient to set aside the cancellation of the visa.

    Past and present conduct of the visa holder towards the Department

32. The representative stated that the applicant has been cooperative with the Department and he remained in contact with the Department and made efforts to maintain lawful status in Australia.

33. The Tribunal accepts that the applicant has not previously breached visa conditions. He volunteered to the Tribunal that he had been working from home as a foreign currency trader and it appears that he has misunderstood the requirements of condition 8101. The Tribunal accepts that the applicant has previously been honest in his dealings with the Department and that his understanding of the condition 8101 was incorrect but he did not intend to breach that condition 8101. He believed that he was complying with condition 8101 by not working for another person. However, the Tribunal is not satisfied that the applicant did not breach condition 8101.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

34. This matter is not relevant to the Tribunal’s consideration as the visa was not cancelled on this basis.

    The impact on any victims of family violence

35. There is no evidence before the Tribunal regarding this matter.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

36. The applicant’s visa was cancelled on 8 February 2016 and he has held a Bridging E visa from 16 February 2016. The applicant does not have work rights on his Bridging E visa. The Tribunal does not have evidence before it that cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation.

    Whether any international obligations would be breached as a result of the cancellation

    There is no evidence before the Tribunal regarding this matter.

    Any other relevant matters

37. The applicant’s employer stated at the hearing that there would be an exclusion period because the applicant has had a visa cancelled. The Tribunal has considered this evidence but is not satisfied in this case that this is a reason not to cancel the visa for a breach of condition 8107. The Tribunal has had regard to Public Interest Criterion (PIC) 4013 which the applicant has to satisfy (cl.457.224) to be granted a Subclass 457 visa. The Tribunal considers that the applicant will not be subject to an exclusion period because he is not affected by a risk factor in PIC 4013(1A), (2), (2A) or (3). He is not affected by the risk factor under PIC 4013(2)(b) because although his visa is cancelled under s.116 because the applicant did not comply with a condition of his visa, the visa was not of a subclass specified in Part 2 of Schedule 4. The Tribunal considers that the applicant will not be prevented from applying offshore for a Subclass 457 visa and being considered for a new visa after he has departed Australia as long as he meets all the criteria for the grant of the visa.

1. The representative has also made submissions that the applicant will be subject to an exclusion period because he is affected by a risk factor in PIC 4014. The Tribunal has considered the submissions but is satsified that the applicant may not be subject to an exclusion period. The risk factor in PIC 4014(4)(b) will not apply to the applicant under PIC 4014(5) if a bridging visa held by the applicant, at the time of departure, was granted within 28 days after a substantive visa held by the applicant ceased to be in effect. The applicant was granted a Bridging E visa on 16 February 2016. His substantive visa (Subclass 457) ceased to be in effect on the day it was cancelled on 8 February 2016. Therefore, if at the time the applicant departs Australia, he held a bridging visa that was granted within 28 days after a substantive visa held by the applicant ceased to be in effect, the risk factor in PIC 4014(5) does not apply to the applicant. 

2. The Tribunal has considered and weighed all of the relevant circumstances of the applicant’s case. The Tribunal has considered the evidence that the applicant worked for the sponsor for a short period as a full-time Restaurant Manager but the restaurant was sold. The purpose of the applicant’s stay in Australia no longer exists. The applicant has not worked for an approved business sponsor in a nominated skilled position for approximately one year and one month.

3. The Tribunal acknowledges that the applicant has taken steps to commence employment with another sponsoring employer. He has now been able to secure a new sponsorship and a new approved nomination. The applicant has never worked for VN Street Foods Pty Ltd. The Tribunal accepts that cancellation of the visa would cause the applicant some hardship, but the Tribunal is not satisfied that the hardship will be serious. He will return to Vietnam with his wife. He has skills as a Restaurant Manager, he has a Bachelor degree, he speaks the language and he has his parents in Vietnam.   

4. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

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

   DECISION

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

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

   Dione Dimitriadis
   Member

   
   

   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.