1609802 (Migration)

[2016] AATA 4441

1609802 (Migration) [2016] AATA 4441 (28 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vuong Hoang Nguyen

CASE NUMBER:  1609802

DIBP REFERENCE(S):  BCC2016/1770411

MEMBER:Denise Connolly

DATE:28 September 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 28 September 2016 at 11:51am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 June 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate cancelled the visa under s.116(1)(a) having found that the applicant is no longer a member of the family unit of Thi Quoc Thang Le. The applicant’s Subclass 457 visa was granted on the basis that he was a member of Ms Le’s family unit.

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. The applicant appeared before the Tribunal on 20 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese 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)(a). 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)(a) if the Minister or the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

8. The delegate’s decision record states that the applicant was granted the Subclass 457 visa, having met the secondary criteria, because he was a member of the family unit of Ms Le. The Department sent the applicant on 6 June 2016 a notice of intention to consider cancellation as it had been informed that the applicant was no longer a member of Ms Le’s family unit. The applicant responded and indicated he thought the parties might reconcile. The applicant further responded on 22 June 2016, acknowledging there was a ground for cancellation but asked for another month because he needed ‘to arrange something’.

9. The Tribunal finds the applicant was granted the Subclass 457 visa on 12 February 2016 because the Department was satisfied he was the partner of Ms Le and therefore a member of her family unit. At the hearing the applicant confirmed that he and Ms Le have separated. He recalled that they separated in about May or June 2016 when he moved out.  He agreed that he is no longer a member of her family unit and that that circumstance no longer exists. The Tribunal finds the applicant is no longer the partner of Ms Le. He is therefore no longer a member of her family unit. Therefore a particular fact or circumstance leading to the grant of the visa, his membership of Ms Le’s family unit, is no longer the case.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(a) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

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

12. At the hearing the applicant told the Tribunal that the parties had been living together in Canley Vale. He has now lost contact with Ms Le. She initiated the end of the relationship. She wanted to go back to Vietnam. He then moved to Newcastle to learn nail artistry. The relationship is now over.  

13. With respect to the applicant’s purpose for staying in Australia, he now wishes to remain here to study nail artistry. He is not doing a formal course but is being taught in a friend’s shop. The Tribunal has taken this into account. It has concerns however that the applicant’s reason for wishing to remain in Australia, to learn nail artistry, is not consistent with the purpose of the Subclass 457 visa program, which is to fill a labour shortage in a skilled occupation. The applicant noted that as Ms Le’s dependant he was able to pursue this as his visa conditions did not prohibit this activity. However the Tribunal notes that the applicant is no longer the dependant of the primary Subclass 457 visa holder, Ms Le. The Tribunal is of the view that if the applicant wishes to study or learn a skill in Australia, then the Subclass 457 visa is not the appropriate visa for the applicant to hold. The Tribunal gives this factor significant weight in favour of cancelling the visa.

14. The applicant has told the Tribunal that he has complied with visa conditions. The delegate has not indicated that there has been non-compliance with visa conditions. Nor has the delegate recorded any concerns with respect to the applicant’s past or present conduct towards the Department.

15. The Tribunal has considered the evidence regarding the degree of hardship that may be caused to the applicant if the visa is cancelled. The applicant claims he has not been working for income in Australia. When asked how he has been covering his living expenses here he indicated that he went back to Vietnam in April 2016 and brought to Australia $5000. The Tribunal noted this appeared to be a significant amount in Vietnam and asked about the source of this money. He indicated his family borrowed it from the bank so that he could return to Australia to learn skills. The Tribunal has already formed the view that the applicant’s desire to learn nail artistry skills in Australia is not consistent with the purpose of the Subclass 457 visa program. While it accepts that as Ms Le’s dependant the applicant was not restricted by visa conditions in pursuing this activity, it has found he is no longer a member of her family unit. The Tribunal accepts that there may be some financial impact on the applicant if the visa is cancelled however it is not satisfied any hardship will be serious. The Tribunal also notes the Subclass 457 visa is a temporary visa and there is no evidence that the applicant had a reasonable expectation that he would be able to remain in Australia on a permanent basis.

16. With respect to the circumstances in which the ground for cancellation arose, the Tribunal accepts the applicant’s evidence that his relationship with Ms Le ended because Ms Le decided she wanted to go back to Vietnam and the applicant moved to Newcastle to learn nail artistry. There is no evidence to suggest that the relationship broke down because of family violence. The applicant indicated the relationship broke down in about May or June 2016. It has now been over 3 months since the applicant’s circumstances have changed, such that the basis on which he was granted the visa no longer exists.

17. There is no evidence to suggest the breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder. This matter is not relevant to the Tribunal’s consideration as the visa was not cancelled on this basis.

18. With respect to whether there are mandatory legal consequences, the delegate has indicated the applicant’s visa was cancelled on 28 June 2016. At the hearing he was not sure of his visa status but did not think he held a visa. The Department’s movement records indicated that his Subclass 457 visa is due to cease on 12 February 2020. The applicant indicated that, as he understood it, he was not the holder of a Bridging visa. The Tribunal urged the applicant to attend an Immigration office as soon as possible to ensure he holds a visa.  At the hearing on 20 September 2016 the Tribunal agreed to postpone its decision for at least a day to allow the applicant to attend an Immigration office. The applicant confirmed that he would attend an Immigration office immediately after the hearing to regularise his immigration status. The Department’s records confirm that the applicant attended an Immigration office and a Bridging visa E was granted on 20 September 2016. The Tribunal is satisfied the applicant is the holder of a visa. The Tribunal does not have evidence before it that a cancellation would result in the applicant being unlawful and subject to detention, or that indefinite detention is a possible consequence of cancellation.

19. There is no evidence before the Tribunal to suggest that any international obligations would be breached as a result of cancellation. The Tribunal accepts his family may now have a debt however the applicant has not indicated he will suffer harm as a consequence of this debt. He did not indicate that he had any other reason to fear harm in Vietnam.

20. There is no evidence before the Tribunal that there would be consequential cancellations under s.140 of the Act. The applicant stated that he is now single and there is no evidence that he has children in Australia.

21. With respect to any other relevant matter the applicant told the Tribunal that he had consulted a person, Ricky Jiang, Regal Link Trading & Education, 301/401 Sussex Street, Haymarket, who purports to be a migration agent, and paid him $2100 for assistance in this matter. The applicant showed the Tribunal Mr Jiang’s business card. It does not include a Migration Agent’s Registration Number. Mr Jiang is not recorded as a migration agent on the MARA website. The Tribunal is concerned that the applicant has been misled by Mr Jiang into believing he is qualified to give migration advice. The Tribunal suggested the applicant inform the Department about Mr Jiang’s actions.

22. The Tribunal has considered and weighed up all of the relevant circumstances in the applicant’s case. It has found that the basis for the applicant’s grant of the Subclass 457 visa, his membership of Ms Le’s family unit, no longer exists. The Tribunal gives this factor significant weight. It accepts that the applicant now wants to remain in Australia to learn nail artistry skills however it is of the view that this is not consistent with the purpose of the Subclass 457 visa program, to fill a skilled labour shortage. It also gives this factor significant weight. While the applicant’s family may have borrowed some money to allow the applicant to remain in Australia to learn those skills, and consequently may suffer some financial hardship, the applicant only ever held a temporary visa and there is no evidence to demonstrate that he had a reasonable expectation that he would be granted a permanent visa in Australia. It is not satisfied any hardship will be serious or that the applicant is unable to safely return to Vietnam. There is no evidence to suggest he has breached visa conditions and the Department has not recorded any concerns about his conduct. He now holds a Bridging visa E so the cancellation would not result in the visa holder being in Australia unlawfully and subject to detention.

23. 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.

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

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Denise Connolly
    A/g Senior Member