1608183 (Migration)

[2016] AATA 4518

1608183 (Migration) [2016] AATA 4518 (12 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yinan Ding
Mrs Yihan Zhao

CASE NUMBER:  1608183

DIBP REFERENCE(S):  bcc2016/1351632

MEMBER:Glen Cranwell

DATE:12 October 2016

PLACE OF DECISION:  Brisbane

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 12 October 2016 at 11:23am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 May 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 (the applicant) breached condition 8107 of his 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 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.

4. The applicants appeared before the Tribunal on 12 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. This condition requires the applicant not cease employment in a nominated occupation for more than 90 consecutive days.

8. The applicant provided the Tribunal with a copy of the delegate’s decision, which indicates that the Department received written notification on 19 January 2016 that the applicant ceased employment with Armstrong Gold Coast Pty Ltd on 21 December 2015.  The applicant did not dispute this at the hearing.  As the applicant has ceased employment in a nominated occupation for more than 90 consecutive days, the Tribunal is satisfied that he has not complied with a condition of the visa.

9. 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

10. 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’, relevantly:

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

    ·if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for and extent of the breach

    ·the degree of hardship that may be caused to the visa holder and any family members

    ·the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

    ·the visa holder’s past and present behaviour towards the department

    ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140

    ·whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:

    oif there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration

    owhether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment

    ·any other matter the visa holder raises.

11. The applicant agreed that as a holder of a Subclass 457 visa his purpose of travel to and stay in Australia was to work.

12. The applicant told the Tribunal that he resigned from Armstrong Gold Coast Pty Ltd because he did not feel things were working out.

13. The applicant stated that he had found people interested in hiring him.  However, on 31 December 2015, he met a migration agent named Dave Hadley.  Mr Hadley advised him to set up his own company to nominate him.  On 1 February 2016, Aconomy Pty Ltd was incorporated.  The sole director and shareholder of Aconomy Pty Ltd is the second named applicant.  Aconomy Pty Ltd is not currently trading because both of the applicants are on bridging visas E, which do not permit them to work.

14. The applicant stated that Mr Hadley provided incorrect advice as to when the 90 day period commenced.  Initially he told the applicants that it started on 1 January 2016 due to the Christmas/New Year public holidays.  Later he told them that it started on 1 March 2016, when Armstrong Gold Coast Pty Ltd withdrew its nomination for the applicant’s Subclass 186 visa.  The applicant provided the Tribunal with text message and email correspondence with Mr Hadley.  It is clear from this correspondence that Mr Hadley was consistently unavailable to respond to the applicant’s inquiries.

15. The applicant stated that Mr Hadley lodged the nomination application in respect of him by Aconomy Pty Ltd on 2 May 2016.  This was the same day that the Department issued its notice of intention to cancel.  The nomination application was for the position of Customer Service Manager and has yet to be determined by the Department.  The Tribunal noted that the fact that Aconomy Pty Ltd was not currently trading might make it difficult for the Department to approve the nomination.  The representative later conceded that the prospects of the nomination being approved were reduced given that the applicants were unable to work as holders of bridging visas E, leading to the company not being able to trade.

16. In terms of hardship, the applicant stated that he has been in Australia for 9 years, initially as a student and then as a worker, and the second named applicant has been in Australia for 8 years.  It would cause considerable disruption to their lives to have to leave Australia.  Their plans to have children have also been thrown into disarray given their employment uncertainty.  They have both been unable to work since the applicant’s Subclass 457 visa was cancelled, and are experiencing financial hardship.  It has been very difficult for them to obtain alternate offers of employment/nominations while they are holders of bridging visas E.

17. The applicant has no children, has not breached any other conditions, and there is no behaviour of concern towards the Department.  As noted above, the second named applicant’s visa was cancelled under s.140, and this has caused her the hardship outlined in the preceding paragraph.  The second named applicant also lost her own job.

18. Balancing all of these factors, the Tribunal places significant weight on the absence of any immediate employment prospects on the part of the applicant.  The applicant was granted a Subclass 457 visa on the basis of working in a nominated occupation, but he has not done so since December 2015.  The decision to cease employment with Armstrong Gold Coast Pty Ltd was a voluntary decision on the part of the applicant.  While the applicant has been nominated by Aconomy Pty Ltd, the Department has yet to make a decision on the nomination application.  The Tribunal considers that the prospects of the Department approving a nomination for the position of Customer Service Manager in respect of a company that is not trading are low.  The Tribunal accepts that the applicants would experience hardship and disruption to their lives were they to leave Australia given their lengthy periods of residence, and acknowledges the difficulties that being on bridging visas E have caused them.  The Tribunal also accepts the applicants have been the victims dilatory service on the part of Mr Hadley.  However, the Tribunal considers that the hardship to the applicants is outweighed by the absence of any immediate employment prospects on the part of the applicant.  Considering the matters raised by the applicant singularly and cumulatively, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

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

    Glen Cranwell
    Member