Chai (Migration)

[2021] AATA 4994

Chai (Migration) [2021] AATA 4994 (10 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Baozheng Chai

CASE NUMBER:  2101319

HOME AFFAIRS REFERENCE(S):          BCC2020/2439996

MEMBER:Noelle Hossen

DATE:10 December 2021

PLACE OF DECISION:  Perth

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

Statement made on 10 December 2021 at 10:53am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – position of Real Estate Representative – applicant ceased employment over 60 days – impact of the COVID-19 pandemic – no new nomination – strict quarantine rules in China – financial hardship – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 140, 189
Migration Regulations 1994, Schedule 8, Condition 8107

CASES

Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 February 2021 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 delegate cancelled the visa under s.116(1)(b) on the basis that 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. The applicant appeared before the Tribunal on the 25 November 2021 to give evidence and present arguments. The Tribunal also heard evidence from the applicant’s wife namely Zengxi Chai. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The Tribunal confirms that it has read and carefully considered the material filed by the applicant, as well as information contained in the Departmental file.

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?

   s.116(1)(b) - non-compliance with conditions

7. 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 condition8107(3) (b) attached to the applicant’s visa. This condition requires that if the applicant ceases employment, the period during which the applicant ceases employment must not exceed60 consecutive days.

8. The onus of establishing the facts which lead to the cancellation rests with the Tribunal.

9. On the 13 January 2021 the Department sent the applicant a Notice of Intention to Consider Cancellation (the notice) noting that departmental records indicated that he ceased employment with them effective on the 28 September 2020.The Department informed the applicant in the relevant notice that his subclass 457 visa might be cancelled under subsection 116(1) (b) of the Act because he may have breached condition 8107.The notice invited the applicant to comment on the reasons why his visa should not be cancelled. He responded to this invitation on the 29 January 2021.

10. Accordingly, the Tribunal finds that the applicant was given notice of the Department’s intention to consider cancellation of the Subclass 457 visa as required under the legislation.

11. The Departmental records show that on the that on the 11 November 2016 a Delegate of the Department approved a nomination by Miller and James (Real Estate) Pty Ltd. (“the sponsor”) to sponsor the applicant for a Subclass 457 Visa.

12. Departmental records indicate that the applicant ceased work with the sponsor on the 28 September 2020.

13. The applicant explained in his reply to the Department and at the review hearing that the reason he breached condition 8107 is because the sponsor’s business was affected by the COVID pandemic.

14. The Tribunal finds that the applicant’s last approved nomination was with Millers and James Real Estate and that the applicant has not worked since 28 September 2020.

15. 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

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’

    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:

17. The applicant was granted a Temporary Work Visa (skilled) subclass 457 on the 3 February 2017 for the purpose of working as a Real Estate Representative with an approved sponsor namely Miller and James Real Estate Pty Ltd. The nomination was approved on the 11 November 2016. The sponsor notified the Department that the applicant ceased his employment with the sponsor on the 28 September 2020.

18. The applicant claims that his employment was terminated by his employer due to the impact of COVID19. The Tribunal does have empathy for the situation and acknowledges the applicant’s claim that his employment was affected by the COVID 19 pandemic. However, since the cessation of the employment the applicant has not had a new nomination lodged on his behalf from a new sponsor.

19. The applicant gave evidence at the hearing that he was unemployed although he had tried to secure employment. He had been granted a Bridging Visa E that allowed him to work unlimited hours approximately 9 months prior to the hearing, but he had failed to secure any work as a real estate agent. He said that he is relying on funds from his mother and that his wife worked less than 20 hours a week.

20. As a result, the Tribunal finds that the applicant does not have another Australian Employer who is willing or able to sponsor the applicant under the Subclass 457 Visa stream.

21. The Tribunal finds that the purpose for the grant of the Subclass 457 Visa to the applicant no longer exists. The Tribunal places significant weight on those facts in favour of cancelling the visa.

    the extent of compliance with visa conditions and the visa holder’s past and present behaviour towards the Department:

22. The visa was subject to visa condition 8107.The condition requires that the visa holder is provided with 60 days to secure a new sponsor. The applicant did not maintain employment with an approved sponsor after 28 September 2020.

23. The Tribunal accepts that the applicant has not previously breached any other visa conditions. The applicant had resided in Australia since 2009 and had returned to China for 15 months in 2016. There is also no evidence to suggest that the applicant has a history of difficulties or lack of cooperation with the Department.

24. The Tribunal gives some consideration against the applicant’s case and in favour of cancelling the visa, for the fact that the applicant did not comply with condition 8107 of his Subclass 457 Visa.

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

25. The Tribunal notes that the applicant, has lived mostly in Australia since July 2009.The applicant’s wife and 2 children have lived in Australia for a significant period as well which means that they have strong ties to Australia. The family have not travelled to their home country since 2017.

26. The applicant and his wife told the Tribunal at the hearing that they would suffer significant hardship if they must return to China as there are strict rules for quarantine in China.

27. The evidence regarding the rules for quarantine was stated during the hearing and the Tribunal did not have any evidence in writing. The assertions are that the family will have to be split since the husband and the wife will have to travel to live in their original province in China and will not be able to see each other in accordance with the quarantine laws of China.

28. The Tribunal has read a copy of the Decision of the Delegate dated the 14 April 2021 in respect of his application for a student visa whereupon the applicant stated that it was his intention to return to his home country at the end of his studies and seek to establish their own business. There is no mention in the application regarding their inability to travel to China in the future and that they will have to be separated. The Tribunal does not accept their evidence that they will have to be separated as there is no evidence before the Tribunal save for their oral testimony.

29. The Tribunal notes that the applicant held a temporary visa whilst living in Australia and so there was no guarantee that he would be able to remain living in Australia permanently.

30. The Tribunal accepts that there may be a degree of hardship if the applicant and his family are separated. However, the applicant relies on financial support from his mother and has indicated that he will return to live with his mother when he returns to China. The applicant is unlikely to suffer from financial hardship as he is reliant on his mother to support him financially, as he has been unemployed according to his oral testimony from the 28 September 2020.

31. The Tribunal places some weight in favour of the applicant’s case not to cancel the visa.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control:

32. The policy suggests that the Tribunal should consider whether there are extenuating circumstances beyond the Visa Holder’s control that led to the grounds existing. As a rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the applicant.

33. The Tribunal acknowledges that the COVID 19 pandemic may have caused the applicant to lose his sponsored employment but the applicant has been unable to find a new sponsor or any employment since the 28 September 2020.

34. The applicant’s noncompliance with condition 8107 of his visa is substantial, in the sense that at the time of the Decision he had not been employed since the 28 September 2020 with his sponsoring employer for more than 1 year. The Tribunal weighs those facts, in favour of exercising the discretion to cancel the visa.

35. whether there would be consequential cancellations under s.140

36. The applicant has the following dependant’s whose visas would, or may, be cancelled under Section 140 of the Act: namely his wife and 2 children.

37. If the visa is cancelled, the secondary visa holder’s visa would also be cancelled. Therefore, cancellation would not result in the separation of the applicant’s family unit. I give 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 and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention:

38. The applicant had a pending Student (subclass 500) visa application before the Department at the time of the decision of the Department on the 2 February 2021.He was granted a Bridging visa A upon lodgement of this application and the Delegate found that his bridging visa would cease automatically because of the decision of the delegate to cancel his visa.

39. The Tribunal acknowledges that upon the cancellation of his visa, the applicant may become an unlawful non-citizen and be liable to be detained under Section 189, and liable for removal if he does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore because of the cancellation of his visa.

40. However, he may be eligible to apply for a Bridging E Visa, which may allow him to stay lawfully in Australia whilst awaiting the outcome of other applications.

41. At the time of the hearing the applicant was awaiting a hearing for a Review of the Decision of the Department as his application was refused on the 14 April 2021.

42. The Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of Section 116.

43. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new visa from overseas in the future.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

44. There is nothing in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Therefore, the Tribunal is satisfied that there is little in these matters to weigh against exercising the discretion to cancel.

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

    DECISION

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

    Noelle Hossen
    Member