2006261 (Migration)

[2021] AATA 278

2006261 (Migration) [2021] AATA 278 (6 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006261

MEMBER:Joanne Bakas

DATE:6 January 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 06 January 2021 at 12:44pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – leave to look after pregnant wife – employer demanded payment to get position back – new employment, but no sponsorship – members of family unit – two children included in wife’s student visa application otherwise undeclared to department – children’s status in Australia and if returned – discretion to cancel visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 78, 116, 140, 189, 198, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant became the subject of an approved nomination by their sponsor [named] on 9 August 2018 and was subsequently granted a Subclass 457 (Temporary Work (Skilled)) visa on 10 August 2018. On 22 December 2019 the Department of Home Affairs were notified by the sponsor that the applicant had ceased employment on 20 December 2018. It was put to the applicant on a Notice of Intention to Consider Cancellation (NOICC) dated 3 March 2020 that under s.116(1)(b) of the Migration Act the applicant is required to comply with all conditions of their visa, including condition 8107(3)(b) which requires that if the visa holder ceases employment the period during which the visa holder ceases employment must not exceed 60 days. The applicant was notified that their apparent violation of this condition could form grounds for the cancellation of their visa and was invited to comment.

3. The applicant did not respond to the NOICC and the department cancelled the visa on 23 March 2020.

4. In the Departmental decision dated 17 March 2020, the delegate found that the grounds for cancellation of the visa were made out on the basis that the applicant had not complied with section 116(1)(b) of the Act on the basis that the Minister was satisfied that the applicant did not comply with a condition of their visa; in this instance condition 8107(3)(b) attached to the applicant’s visa. In the assessment of the discretionary factors as to whether or not the visa should be cancelled the delegate found that the visa should be cancelled, having regard to all the circumstances.

5. On 28 March 2020 the applicant applied for review of their visa cancellation with the Tribunal.

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

7. The delegate’s decision, provided by the applicant, states that the applicant is partnered to [Ms A] and that they have two young children, [Child 1] and [Child 2].  I note that the that the department became aware of the two children following a Student visa application lodged by [Ms A] on 25 September 2019 that declared two children, [Child 2], born [Date 1] and [Child 1], born [Date 2] as un-accompanying family members. Within this application, she declared her children’s place of birth as Perth, Australia, despite departmental records reflecting that the claimed children have never formally held visas while onshore.  However, the delegate was not able to establish the identity of either of the children.

8. Further, the department requested documents confirming the status of the children on two occasions from the applicant but in both instances, the documents provided by the applicant were not readable. 

9. In any event, the Tribunal finds that only the named applicant applied for review. 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 named applicant.

10. However, for the reasons detailed below, whether or not the applicant has the purported children does not affect the outcome of this decision.

11. The applicant appeared before the Tribunal via telephone on 31 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

12. Following the hearing the Tribunal requested further information from the applicant including documents to establish the birth of the applicant’s children (including date and place of birth), identity and parentage such as a birth certificate and passport.  In addition, further information and evidence was requested regarding the applicant’s claims at the hearing that his daughter would not be able to attend school in China as she is not included in his household registration.

13. The additional information provided by the applicant was received via email on 3 October 2020 and the Tribunal proceeded to make its decision.

14. 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

15. 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?

16. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(b) attached to the applicant’s visa. This condition requires that if the visa holder ceases employment the period during which the visa holder ceases employment must not exceed 60 days.

17. At the hearing the applicant gave evidence that he worked for his employer from 2016 to 2018.  He stated he could not recall the name of the business he worked at as his English is not very good.  In 2018 his wife became pregnant and he asked his employer to take leave for one to two months to help look after his wife.  His wife lived in Perth, while his employer is based in Queensland.  His employer allegedly was not happy with this request.  In mid-2018 he left his employer and returned in October or November 2018.  His employer told him that he needs to pay $70,000 if he wants his position back.  As the applicant could not afford to pay this, he went back to Perth. 

18. He stated at the hearing that he was not aware until June or July of 2020 that his employer  had “cancelled his visa”.

19. He has recently found other work making [Product 1].  He has also picked up some [odd jobs]. He has not found another sponsor willing to employ him.

20. The Tribunal accepts the applicant’s evidence in regard to the circumstances surrounding his employment and the applicant’s reasons as to why his employer no longer wished to sponsor him.

21. The first issue for the Tribunal to determine is whether the applicant has complied with condition 8107 of his visa.  The oral evidence provided at the hearing is consistent with the delegate’s observations that the applicant has not worked with his sponsored employer at the latest since December 2018.  The applicant concedes that he has not returned to any employment under an approved nomination and therefore this has continued in excess of 60 days.

22. Based on the evidence discussed above, the Tribunal finds that the period during which the applicant ceased employment has exceeded 60 consecutive days, which is a breach of condition 8107, specifically 8107(3)(b) attached to his Subclass 457 visa.

23. 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 visa should be cancelled.

    Consideration of discretion

24. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    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

25. The applicant submits that he was informed by his migration agent that after two years on a temporary visa, he could become a permanent Australian citizen.  He paid a large sum of money to the agent and given this advice, he sold all of his possessions in China and has no property there or work to go back to.  His two children have learnt the Australian culture and cannot speak Mandarin.  

26. He has currently found very stable work and has learnt [a specified skill].  He makes [Product 1].

27. The Tribunal is cognisant of the circumstances that the applicant was granted the visa for the purpose of being able to temporarily fill a skill shortage in a particular area and to work in Australia for an approved sponsor in a skilled occupation for which he was specifically nominated and which could not be filled from within the Australian workforce.  As noted in the decision of the delegate, provided by the applicant, the approved nomination for the applicant’s most recent Temporary Work (Skilled) (subclass 457) visa was approved for him to work for them in the occupation of [specified].

28. The applicable visa conditions allow the applicant 60 days from ceasing employment with the sponsor in which to pursue and secure a new sponsor or to apply for another visa in line with a valid purpose for wishing to remain in Australia, or alternatively, to arrange to depart Australia. The applicant stated at the hearing that he has not been able to find another sponsor.  There is otherwise no evidence before me that he has had any other nominations lodged by employers since his employment with his sponsor ceased.  The cessation of employment with his sponsor means that his ongoing stay with no sponsor is not in line with the purpose of the visa.  During the 60 day period a person continues to hold the visa for an extended period to continue searching for another sponsor, or alternatively to await the outcome of an appeal by a potential sponsor to this Tribunal.

29. The Tribunal considered the applicant’s submissions as detailed above at paragraph 25 and 26.  The Tribunal is of the view that it is a decision the applicant made to sell all of his possessions.  He did not have a guarantee of permanent residency following a subclass 457 visa. As for his children learning Australian culture and not speaking Mandarin, the Tribunal finds that based on the applicant’s evidence, the children are about [age] and [age]. Given their young age, the Tribunal does not find the applicant has a compelling need to remain in Australia. Neither does the applicant’s assertions that he has current employment in Australia.  In particular this employment is not in the occupation for which the applicant had held a 457 visa. 

30. The Tribunal gives this consideration substantial weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

31. The applicant’s subclass 457 visa was granted subject to condition 8107.

32. The Tribunal acknowledges and takes into consideration that it has been in excess of the 60 continuous day period allowed under condition 8107(3)(b) for a visa holder to secure a nomination with another approved sponsor. The period during which the visa holder ceased employment, based on his own evidence which the Tribunal accepts, was about 15 months before the visa was cancelled by the department. The Tribunal finds that this exceeds the 60 days permitted by clause 8107(3)(b).

33. The applicant was not been able to find another sponsor within 60 days of ceasing his employment.  There is nothing before me to show the applicant has not otherwise complied with the conditions of his visa.

34. The Tribunal gives this consideration some weight in favour of cancelling the visa.

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

35. [The applicant] submits that his family is worrying everyday if his visa is going to be cancelled.  He has no property in China and no work in China. 

36. His parents are not in China but his grandparents live there.  However, they live in a nursing home. He has cousins who live in Australia.  His wife has her mother in China but she is quite sick.

37. He and his family were living in Australia very happily and suddenly asked to go back.  This is like “falling from heaven to hell”.  Further, the applicant submits COVID-19 is very serious in China and he has heard that many people died in the place he is from. 

38. He hopes he can stay in Australia.  His sole purpose for staying is for his children.  He does not wish to have a “shadow in his son’s heart”.  His children like it here very much.

39. His wife does not work as she is focussed on looking after the children.  She has started to have symptoms of depression since the visa cancellation.

40. The Tribunal notes that the applicant did hold a previous subclass 457 visa granted on 9 March 2016.

41. The additional information provided by the applicant following the hearing included that when he mentioned his daughter in regard to the issues he will face in returning to China, he had intended to refer to both his children. The additional information also included that as he had sold his house before going abroad, he will not be able to register his children  without a household certificate even if he had a household registration. The child’s birth certificate and household registration are needed to register the child with the relevant district for school.

42. The Tribunal generally accepts the applicant’s contentions in regard to hardship they may face and gives this consideration some weight in favour of not cancelling the visa. 

    Circumstances in which ground of cancellation arose

43. The applicant submits that the ground for cancellation arose because his employer did not want to take him back after his leave period.  He was also threatened by his employer.  His employer also did not pay him properly.  His employer would only do so if he paid him a large sum of money, which he could not do.

44. The Tribunal also notes that based on the applicant’s evidence his employer was not happy with him taking extended leave in the second half of 2018 as a result of his wife’s pregnancy.

45. The applicant’s evidence to the Tribunal included that he did not take any steps to speak to the department or other body such as the Fair Work Commission regarding his employer’s approach.  He stated this was due to him not being familiar with Australian Law or the department.  The Tribunal accepts that evidence.

46. The Tribunal gives this consideration some weight in favour of not cancelling the visa.

    Past and present behaviour of the visa holder towards the department

47. The delegate’s decision details that the applicant was uncontactable by phone when departmental delegates made various attempts to contact his mobile throughout January to March 2020. The applicant has also failed to update his contact details with the Department, making it difficult to ascertain his last known address.

48. As detailed in the delegate’s decision, the applicant did not respond to either the initial NOICC (being returned to sender for the reason “receiver not known at address”) or the subsequent NOICC sent following the department successfully contacting the applicant by telephone on 2 March 2020. The applicant did not respond to the NOICC which was resent to his nominated email address on 3 March 2020.

49. The applicant submits that he did not speak to the department regarding the cessation of his employment as he was not aware of his rights, being unfamiliar with Australian law.

50. The Tribunal considered this claim and finds that nevertheless the applicant made little attempt in engaging with the Department and the cancellation process.

51. The Tribunal gives this consideration some weight in favour of cancelling the applicant’s visa.

    Whether there would be consequential cancellations under s.140

52. As stated above, the applicant is the only named person requesting a review of the cancellation.   However, I note from the delegate’s decision that departmental records indicate that the applicant has a dependent family member who is attached to his visa (his spouse, [Ms A]).  As such, if the applicant’s visa is cancelled, his wife’s will also be. 

53. There is no evidence before me of either child holding a visa in their own right or attached to the applicant’s visa.  The delegate notes that there has been no application for a visa for either of the children.

54. As stated above, the Tribunal sought documentation to establish the birth of the children but this was not provided by the applicant.

55. The applicant submits that his wife and children would find leaving Australia very hard because they enjoy their time in Australia.

56. On the material before the Tribunal, the children’s identity has not been established and therefore it is unclear whether either child has ever been taken to have been granted a visa pursuant to s.78. If the children did not hold a visa pursuant to section 78 there will be no effect in terms of consequential cancellation but if they are taken to hold a visa pursuant to section 78 then their visa will be consequentially cancelled if the applicant’s visa is cancelled.

57. In any event, as the applicant’s spouse will have her visa cancelled (and potentially one or both of the purported children) by operation of law under section 140, the Tribunal affords this consideration a little weight against cancelling the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

58. In circumstances where the visa is cancelled, the applicant and his dependent(s) will no longer have suitable visa status to allow them to remain in Australia. He will thus become an unlawful non-citizen liable for detention under s.189 of the Act and removal under s.198 of the Act.

59. The applicant would also be subject to s.48 of the Act which would limit the potential to lodge further visa applications onshore in Australia.

60. As such, the Tribunal gives this consideration a little weight against cancelling the visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

61. In considering whether to exercise its discretion to cancel the applicant's visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia's responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

62. The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration.

1. The Tribunal notes that the applicant claims to have two children; [Child 2], born [Date 1] and [Child 1], born [Date 2], however he has failed to provide any identity documentation to the Department to support these claims, despite repeated requests.

2. The delegate’s decision details that by operation of law, the applicant’s claimed daughter, [Child 1] may be entitled to his current visa, as she was born onshore while this visa was in effect. However, his claimed son, [Child 2] was taken to have been a dependent on the visa holder’s expired 457 visa, from his date of birth on [Date 1] until the visa’s expiry on 09 September 2017. As the visa holder’s claimed son was not included in the visa holder’s current 457 visa application, lodged 07 June 2017 he is currently an unlawful non-citizen. However, there is no documentation to establish the date of birth or existence of either of the children.

3. The additional information provided by the applicant following the hearing included that both his children were born in Australia.  However, documents to establish the birth and parentage were not provided.

4. The Tribunal finds it is satisfied that it is in the best interest of the applicant’s children to remain with their family, whether that is in Australia or elsewhere.

5. As detailed above, the only applicant before the tribunal is the visa holder. However, in any event, the Tribunal finds that in the event of a visa cancellation outcome, it is unlikely to cause the breakup of the visa holder’s family unit or separation of any family members, considering that the applicant and his spouse are Chinese nationals and do not hold Australian citizenship or permanent residency. Therefore, this would infer that all members of the family unit would be able to depart Australia together. Further, the purported children’s ages are [age] and [age] and the Tribunal does not consider that the applicant’s purported children would experience hardship readjusting to life outside of Australia, if required to depart.

6. The Tribunal considers that the circumstances of the case would not lead to a breach of Australia’s international obligations under the CRC in relation to observing the rights of children in Australia or any other international obligation Australia may have.

7. The Tribunal has considered the circumstances of this case would not lead to a breach of any other international obligations Australia may have.

   Any other relevant matters

8. There are no other relevant matters evident or raised by the applicant.

9. In considering the circumstances as a whole, the Tribunal is satisfied that the factors in favour of cancelling the visa outweigh those in favour of not cancelling the visa. The Tribunal accordingly concludes that the visa should be cancelled.

   DECISION

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

    Joanne Bakas
    Member