Aiumpalad (Migration)

[2020] AATA 5037

Aiumpalad (Migration) [2020] AATA 5037 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nutchanonte Aiumpalad
Ms Charuwan Poodangdas
Master Junyawut Aiumpalad

CASE NUMBER:  2009357

HOME AFFAIRS REFERENCE(S):          BCC2019/4945307

MEMBER:Joanne Bakas

DATE:13 October 2020

PLACE OF DECISION:  Adelaide

DECISION: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.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 13 October 2020 at 12:14pm

CATCHWORDS
MIGRATION – cancellation – Subclass 457 (Temporary Work (Skilled)) visa – a Café or Restaurant Manager (ANZSCO code: 141111) – ceased work with employer – commenced with employer unrelated to sponsor – sponsor’s sale of business – applicant unaware of immigration requirement to commence with new employer – attempts to regularise immigration status – new sponsor’s nomination application for applicant – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48,116(1)(b), 140(1), 348
Migration Regulations 1994, Schedule 2; condition 8107(3)(a)(ii)(B), 4013; cl 457.511

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 May 2020 made by a delegate of the Minister for Home Affairs 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 applicant became the subject of an approved nomination by their sponsor Charnakan Pty Ltd ATF Charnakan Trust (trading as Amarin Thai) and was subsequently granted a Subclass 457 (Temporary Work (Skilled)) visa on 31 August 2016 to work as a Café or Restaurant Manager (ANZSCO code: 141111) which had an initial expiry date of 31 August 2020.  On 27 September 2019, Australian Border Force conducted a visit to Fusion Thai Cuisine Pty Ltd and a staff member there confirmed the applicant was working there as a restaurant manager.  Fusion Thai is not an associated entity of the sponsor.

3. On 19 December 2019, the Department for Home Affairs put to the applicant a Notice of Intention to Consider Cancellation (NOICC) 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)(a)(ii)(B) which requires the visa holder to only work in a position in the business of the sponsor or an associated sponsor. 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.

4. The applicant responded to the NOICC on 19 December 2019, 7 January 2020 and 13 February 2020. In the response dated 7 January 2020, the applicant stated that the NOICC correctly identified that the power to cancel the applicant’s visa is invoked and focussed the submissions on the reasons why the visa should not be cancelled.

5. In the Departmental decision dated 29 May 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)(a)(ii)(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. On 4 June 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. 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 other applicants’ visas were 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 those other visas 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 and third named applicant.

8. The Tribunal conducted a review hearing on 15 September 2020. The applicant attended the hearing and gave evidence of the Tribunal predominantly in English but at times deferring to the accredited Thai interpreter who had been engaged for the hearing.

9. The applicant was represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

10. At the outset of the review hearing the Tribunal explained in detail the relevant issues in review, namely whether the evidence indicated that the applicant had breached a condition attached to their Subclass 457, namely condition 8107 which requires the applicant to remain employed by the current sponsor or indeed another approved sponsor throughout the life of the visa. The Tribunal also needed to consider whether or not the visa should be cancelled having regard to a range of discretionary factors.

11. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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?

13. 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 attached to the applicant’s visa. This condition requires at clause 8107(3)(a)(ii)(B) that the visa holder must remain employed by their sponsor for the life of the visa.

14. It is not disputed by the applicant that he ceased work at Amarin Thai in December 2018.  His evidence included that the sponsor had advised that the business was being sold and the restaurant had effectively shut in December 2018.  The applicant has not been back to Amarin Thai. He commenced employment with Fusion Thai Cuisine in January 2019 .  His position includes that he was not aware he had to wait for the new nomination to be approved before he commenced work there. As soon as he was notified of this breach, in about September 2019, the applicant stopped working at Fusion Thai Cuisine.  He has since found a new employer (Oriental House Chinese Thai Restaurant (Oriental House)) who started an application process for a new Subclass 482 Temporary Skill Shortage visa.  The nomination was refused and a review has been lodged with the Tribunal.  The applicant was granted a Bridging Visa E along with work permission in June 2020 based on his pending 482 visa application. He commenced working with Oriental House Chinese Thai restaurant as a full time Restaurant Manager in July 2020.

15. The Tribunal is satisfied on the evidence before it that the applicant ceased employment with their approved sponsor and commenced working for another employer who was not an associated entity of the sponsor employer and that the ground for cancellation in section 116(1)(b) exists. As this 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

16. 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’.

17. According to cl.457.511, a subclass 457 visa allows a person to remain in Australia for four years after the grant of the visa.  It follows that the visa would have ceased  on 31 August 2020 had it not been cancelled earlier.  As detailed above, the applicant has now found a new sponsor and has applied for a subclass visa 482 and is currently waiting on a review hearing with the Tribunal.

    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

18. The applicant submits that he has lived in Australia since 2013.  He and his wife came to Australia on student visas.  Their son arrived in 2016 aged four.  He now attends Cowandilla Primary School and is in a year 4/5 class. The applicant’s wife has established a small massage business.

19. He commenced working at Amarin Thai as a waiter in 2014 and his nomination as a restaurant manager was granted in August 2016.  He left his employment there in December 2018 and worked for another restaurant as his sponsor told him the business was for sale and they were closing down. 

20. The applicant claimed to not always understand the rules of immigration and was not aware he could not work for another restaurant.  The owner of Oriental House lodged an application to sponsor the applicant in January 2020. 

21. The applicant’s evidence included that he undertakes volunteer work for the Thai community and undertakes soccer training. He is head coach for the Thai community soccer club.

22. In Thailand they do not have a home.  After his Subclass 457 visa was granted they sold their home to fund his wife’s set up costs of the massage business.

23. He is currently attempting to pass the required grade for the IELTS test so that he can apply for permanent residency.

24. He and his wife and son would be happy to live in Australia.

25. He is now 44 years of age and does not believe he will be able to return to the work he used to undertake in Thailand as a safety officer.

26. 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.

27. The applicant stated at the hearing that he left his sponsor because they were closing down.  He has been able to find another potential sponsor and is currently awaiting a Tribunal hearing regarding this application.

28. The Tribunal notes that the delegate acknowledges that a 482 visa application and a new sponsor nomination (by Oriental Wok Restaurant Pty Ltd (Oriental House)) was lodged but refused on 17 January 2020 and that both the visa and the nomination application are currently under review at the Tribunal.

29. The applicant gave his evidence in an honest and forthright way and the evidence indicates that the applicant has made attempts to regularise their immigration status through finding alternate employment.

30. The evidence before the Tribunal indicates that the cessation of the applicant’s employment was due to circumstances beyond the applicant’s control and the Tribunal accepts that the applicant has made attempts to find alternate sponsor and notes that the applicant has a pending application to be reviewed by the Tribunal regarding an alternate sponsor.

31. The Tribunal accepts the applicant’s submissions in regard to this discretionary factor but finds that it does not amount to a compelling need to remain in Australia.  The Tribunal finds that the circumstances  as detailed above at paragraph 26 in particular, weigh in favour of cancelling the visa. 

    The extent of compliance with visa conditions

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

33. The Tribunal acknowledges and takes into consideration that the applicant commenced working for another employer in breach of his 8107 conditions.

34. The Tribunal notes that the submissions provided by the applicant prior to the hearing dated 8 September 2020, detail that Fusion Thai lodged three nomination applications.  However all three applications were refused by the Department. 

35. The applicant has since been able to find another potential sponsor (Oriental House) but the application was rejected by the Department for Home Affairs and he is currently waiting for a Tribunal hearing in regard to this.

36. There is nothing before the Tribunal to show that the applicant has not otherwise complied with the conditions of his visa.

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

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

38. The applicant submits that it will be very hard on him and his family if he had to return to Thailand.  He and his family would face financial and emotional issues.  He has no job in Thailand.  His wife would not be able to work there as she would have to look after their son. 

39. In addition, his son loves soccer and he is talented and plays for the under 12 team even though he is under 9 years of age.  Next year he will be playing for the Junior Football League.  In Thailand one requires money to be able to play and for training but in Australia there are more opportunities.

40. Further the impact of having to close the massage business quickly will have a large financial impact. His wife signed a five year lease for the property where she runs her business before the visa was cancelled. Even though a NOICC had been issued, the applicant had also lodged a new application for a subclass 482 visa and was hopeful that this would be approved.

41. They have no family in Australia but have very strong community connections.

42. The applicant is concerned for his mental health if his visa is cancelled.

43. The Tribunal notes that the applicant first arrived in Australia in 2013 and accepts that there will be a significant degree of hardship that will result to the applicant and his family members, should the visa be cancelled. In particular the Tribunal considers the applicant may face emotional hardship given the length of time the applicant has resided in Australia and the community ties that have been established as well as financial hardship due to the closure of the massage business.

44. The Tribunal considers that the applicant’s circumstances regarding the hardship factor weigh against cancellation of the visa.

    Circumstances in which ground of cancellation arose

45. The applicant submits that the ground for cancellation arose because he left his employer after being told that they were selling the business.  By December 2018 at the time he left, a buyer had not yet been found and the business had virtually closed down.

46. The Tribunal notes that the applicant submits he was not aware that he could not work for another employer in the same area.  In any event as soon as he was informed of this he ceased that employment and has gone through all of the proper channels in an attempt to secure another sponsorship.

47. The applicant’s evidence is consistent with Departmental records which indicate that the department has rejected the sponsorship nomination lodged with Oriental House and that this decision has been appealed. 

48. These circumstances weigh somewhat in favour of not cancelling the visa.

    Past and present behaviour of the visa holder towards the department

49. There is no evidence before me indicating the applicant has not been cooperative with the department and he has responded to the NOICC.

50. The applicant submits that he did not speak to the department regarding having to leave Amarin Thai as he was not aware he was required to do so. In any event, the submissions provided by the applicant prior to the hearing dated 8 September 2020, detail that Fusion Thai lodged three nomination applications.  However all three applications were refused by the Department.

51. The Tribunal notes that the delegate detailed that a nomination by Fusion Thai had not been approved by the department and that the agent in that instance appears not to have submitted consistent information and as such may not have done a satisfactory job.

52. Further the delegate stated that there is no information before them to suggest that the applicant has been uncooperative with the department or departmental staff.

53. The Tribunal considers that this factor weighs somewhat against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

54. If the applicant’s visa is cancelled, his wife’s will also be as will his son’s, as members of the same family unit. 

55. 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

56. In circumstances where the visa is cancelled, the applicant and his dependents 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.

57. 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.

58. At the hearing the applicant submitted that cancellation would affect future applications and Public Interest Criterion 4013 will apply which may cause further issues for him.  He may need to go offshore to apply for certain visas and may be prevented from being granted future temporary visas for a specific period.

59. 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

60. 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).

61. As noted by the delegate, the applicant’s child’s visa was granted because he is a member of the family unit of the primary visa holder. If a decision is made to cancel the applicant’s visa, the child’s visa will consequentially be cancelled as a result. The Tribunal notes that this will keep the family’s status aligned and is therefore unlikely to result in a separation of the family unit. A decision as to where the family members reside, including the possibility of relocation, is a matter for the child’s parents to consider if required, following visa cancellation.

62. The applicant’s son is nine years old.  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.  The Tribunal acknowledges that there would be a period of readjustment required by the child including potentially language factors and some social reintegration with new friendship groups or carers.  However, as the child spent the first four years of his life in Thailand and has only been in Australia for the last four years, the Tribunal does not consider that the applicant’s child would experience hardship readjusting to life outside of Australia, if required to depart. The Tribunal considered the child’s interest and ability in soccer but this does not outweigh the Tribunal finding that it is satisfied that it is in the best interest of the applicant’s child to remain with his family, whether that is in Australia or elsewhere.

1. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR would not be affected by the cancellation of the applicant's visa as the family would not be separated because of the cancellation.

2. The applicant did not claim and there is no evidence before the Tribunal that would suggest that Australia that visa cancellation would impact Australia's international obligations or would be in breach of Australia's non-refoulement obligations.

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

4. The Tribunal therefore attributes little weight to these considerations in deciding whether to exercise the discretion to cancel the visa.

   Any other relevant matters

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

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

   DECISION

7. 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.

8. The Tribunal has no jurisdiction with respect to the other applicants.

   Joanne Bakas
   Member