1611679 (Migration)

[2016] AATA 4688

1611679 (Migration) [2016] AATA 4688 (24 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr CHULHEE LEE
Mrs JEE HYE PYUN

CASE NUMBER:  1611679

DIBP REFERENCE(S):  BCC2016/2317717

MEMBER:Kate Millar

DATE:24 November 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

Statement made on 24 November 2016 at 3:57pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Lee, a citizen of South Korea, was granted a subclass 457 visa on 11 October 2013 to work for JM Fresh Pty Ltd as a Customer Service Manager.  JM Fresh Pty Ltd notified the Department for Immigration and Border Protection that Mr Lee ceased work for them on 17 March 2016.  As a result, Mr Lee’s Subclass 457 (Temporary Work (Skilled)) visa was cancelled on 16 July 2016 because a delegate found that he was in breach of a condition of his visa that specifies he not cease employment for more than 90 days. 

2. Mr Lee seeks a review of this decision, and says he has since found another sponsor.

3. Mr Lee appeared before the Tribunal on 20 October 2016 and 22 November 2016  to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.  The applicants were represented in relation to the review by their registered migration agent.   The Tribunal also took oral evidence from Mr Moonwan Park. 

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and substituted with a decision not to cancel the visa.

   JURISDICTION

5. 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 about Mr Lee. Mrs Pyun’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.  This makes the cancellation of the Mrs Pyun’s visa self-executing on the cancellation of Mr Lee’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 is involved in a visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to Mrs Pyun.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Mr Lee’s visa was cancelled under s.116 of the Migration Act 1958 (the Act).

7. Under s.116 of the Act, the Minister may cancel a visa if satisfied that a ground specified in that provision is made out. These grounds include that set out in s.116(1)(b), which provides that it is a ground to cancel the visa if the visa holder has not complied with a condition of the visa. 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.

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

   Does the ground for cancellation exist?

9. 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 the visa. In this instance condition 8107 attached to Mr Lee’s visa. This condition requires, among other things, that if he ceases employment, the period during which he ceases employment not exceed 90 consecutive days (8107(3)(b)).

10. Mr Lee acknowledges he has ceased work since at least 1 April 2016.  This is not consistent with the date advised by his employer which was 17 March 2016.  As both dates are than 90 days before the delegate cancelled his visa on 26 July 2016, he was in breach of condition 8107(3)(b) when the delegate cancelled his visa. 

11. As a result, 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.

12. Mr Lee emphasised on several occasions that he had applied for another job within 90 days after he ceased employment, and says he found another sponsor within this period.  The condition he has breached requires him not to cease work for more than 90 consecutive days, it does not require him to look for work or find another sponsor within 90 days.  While finding another sponsor is relevant to the exercise of the discretion, it does not mean he has complied with the conditions of his visa.

    Consideration of discretion

13. 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’.

14. In the written submission, it is said that Mr Lee was sacked, and that he did his best to remain with his employer, and did not lodge an unfair dismissal claim after his employment was terminated because he hoped he would be able to return to work.  It is stated that he thought he would be able to return to work when his employer had cooled down.  

15. At hearing, Mr Lee said he was writing his resignation letter when his employment was terminated.  He said that he had a dispute with his employer because his sick leave and annual leave were not calculated correctly.  He said he trusted that the director would pay him amounts for annual leave and sick leave and that overtime work would be paid as a bonus payment, but this did not occur.

16. On balance, I accept Mr Lee’s evidence that he could not access his annual leave or sick leave and this led to the end of his employment. 

17. Mr Lee relies on a subsequent nomination application lodged by The Trustee for the Daesan Trust (“Daesan”) nominating him for the position of Customer Service Manager.  This nomination application was lodged on 8 August 2016 and a decision has not yet been made on this application. 

18. Mr Lee provided:

    ·     a contract of employment with Daesan,

    ·     An ABN lookup for The Trustee for the Daesan Trust showing a trading name of Hanjin Adelaide,

    ·     An organisation chart for “Daesen Global Trading and Logistics”,

    ·     An unsigned offer of employment,

    ·     An offer of employment signed by Mr Moonwan Park for Daesan,

    ·     Registration of the business name for Hanjin Adelaide,

    ·     Rental invoices addressed to Moonwan Park from Welshpool Business Enterprise Centre,

    ·     Photographs,

    ·     A letter from Yes Shop recommending employment of a customer sales manager, and

    ·     Screen shots regarding ordering through Yes Shop. 

19. Mr Lee provided a letter from the Department for Immigration and Border Protection dated 8 August 2016 acknowledging an application has been made by the Trustee for the Daesan Trust.  He also provided a letter of the same date acknowledging an application of a nomination application by Daesan Trust. 

20. Mr Lee said he was offered a position by Daesan in May.  On it being put to him that the letter of offer was dated 22 July 2016, seven days after the notice of intention to cancel his visa was issued by the department, he said he was offered the job in May but the documents were not prepared until July, and the delay was because the director of Daesan went to Korea for a month and the forms could not be lodged.  

21. Mr Lee named Mr Moonwan Park as the Diretor.  The documents provided, while referring to Mr Park, did not show a connection between Mr Park and Deasan, as there were not documents naming the trustee of Daesan.  

22. Mr Lee provided the ASIC registration of the business name Hanjin Adelaide which is held by the Daesan.  The invoices for rent at the Welshpool Business Centre are in the name of Mr Moonwan Park.

23. As there was no direct evidence to link Mr Park to Daesan or to identify the Trustee of the Daesan Trust, Mr Lee was asked to provide further information and a further hearing was conducted at which Mr Park gave evidence.

24. The Trust deed for Daesan Trust shows the trustee is Glenn’s Delivery Pty Ltd.  An ASIC search shows the sole director and secretary of Glenn’s Delivery is Young Jae Kim and the sole shareholder in Mr Moonwan Park.  Mr Park explained that Mr Kim is his cousin and that as he is the 100% shareholder he works in the business and does the paperwork. 

25. Mr Park explained the business imports goods from Korea and advertises them through the Yes Shop on Foxtel and Channel 55. The lease for the premises is for the office in Western Australia.  Mr Park said he continues to seek to employ Mr Lee. 

26. Having considered the role of Mr Park in the company and the further documents, I am satisfied there is an application for approval of a nomination of Mr Lee by Daesan, the business is operating in Western Australia, and Mr Park continues to seek to employ Mr Lee.

27. I consider this weighs in favour of not cancelling Mr Lee’s visa.    

    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

28. The purpose of a subclass 457 visa is to fill short term shortages in the Australian labour market.   Mr Lee says he has worked for JM Fresh for a total of five years, and three years after the rgant of the 457 visa., which is a significant period of time.  He says he had few rest breaks while he was working for JM Fresh.  That he has continued to work wit the one employer weighs in his favour. 

29. There is approximately one year left on his subclass 457 visa.  While this is a reasonably lengthy period of time, and weighs in favour of carefully considering whether he is the subject of a current nomination application, I consider this is balanced by Mr Park attending the hearing and giving evidence that he continues to seek to employ Mr Lee. 

30. Mr Lee says his wife is pregnant, and he has been advised to give her emotional support during her pregnancy.  He says her doctor has advised that she not travel during her pregnancy. 

31. Mr Lee has remained in Australia while he is not working, which is not consistent with the purpose of his travel to Australia.   Nevertheless he is the subject of a nomination application and his employer attended a hearing to give evidence about the operation of the business and that it continues to seek to employ Mr Lee. 

    The extent of compliance with visa conditions

32. There is nothing before me to show that Mr Lee has not otherwise complied with the conditions of his visa. 

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

33. Mr Lee said if their visas are cancelled it will affect his wife emotionally and he would be worried for their baby.  He says when they left Korea they had decided to live in Australia and bring up their children here.  In South Korea they would have to work all of the time whereas in Australia they would have more time with family.  If they were to return to Korea he would not have a job. 

    Circumstances in which ground of cancellation arose

34. Mr Lee says he had a verbal altercation with the director of JM Fresh and he had hoped the director would change his mind once he had cooled down.  The explanation provided was that he was not paid for annual leave, sick leave and overtime.  There is little other information to establish this is the case, however I do not have any reason not to accept Mr Lee’s evidence. 

    Whether there are mandatory legal consequences

35. If Mr Lee’s visa is cancelled, there are limited visas he can apply for from within Australia.  There is no suggestion that he would be detained or indefinitely detained is he leaves Australia within the period allowed. 

36. Mr Park gave evidence that even if Mr Lee were to have to return to Korea he would continue to seek to sponsor him.

    Whether there would be consequential cancellations under s.140

37. If Mr Lee’s visa is cancelled his wife’s visa will also be cancelled.  At the time of the second hearing, their child was due to be born within three weeks. 

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

38. There is nothing to indicate any international obligations would be breached if the visa is cancelled. 

    Conclusion

39. On Mr Lee’s account of the termination of his employment with JM Fresh, there was a failure to allow him access to annual leave and sick leave and therefore a failure to comply with industrial relations laws by JM Fresh. 

40. Mr Lee remained in this employment for approximately three years after the grant of the visa, which I consider weighs in his favour.  He has found another employer, who attended the hearing in support of his offer of employment.  There is a current application for approval of the Daesan as a standard business sponsor and approval of the nomination of a position for which Mr Lee is the nominee. 

41. In these circumstances I consider the visa should not be cancelled. 

    DECISION

42. 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.

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

    Kate Millar
    Member