Chang (Migration)

[2019] AATA 6132

Chang (Migration) [2019] AATA 6132 (17 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yoong Tat Chang
Mrs Sharon Loo
Master Mike Yik Qian Chang
Master Dylan Yik Chun Chang

CASE NUMBER:  1826845

HOME AFFAIRS REFERENCE(S):          BCC2018/730918

MEMBER:Michelle East

DATE:17 October 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision 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 17 October 2019 at 2:39pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 90 days – unable to find new sponsor – discretion to cancel visa – factors for and against cancellation – worked for lesser wage and paid own superannuation in exchange for two years’ employment and support for application for permanent residency – sponsor told applicant they were intending to sell business, then did not sell – applicant did not inform department of cessation of employment, or of underpayment until sent notice of intention to consider cancellation of visa – borrowed money from lending company in home country – application for protection visa lodged – decision under review affirmed for first applicant, no jurisdiction for other applicants

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b), 140(1)

Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

CASES

Rani v MIMA (1997) 80 FCR 379

Tien 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 11 September 2018 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with a condition 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. 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 them.

4. The applicant appeared before the Tribunal on 11 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Sharon Loo, the applicant’s wife and Khris Binstead, the applicant’s sister-in-law.

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?

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 condition 8107 is attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

8. The applicant provided to the Tribunal a copy of the delegate’s decision record.  It records, among other things, that condition 8107 was attached to the applicant’s Subclass 457 visa, granted on 13 November 2015 on the basis of his employment as a ‘Cook’ (ANZSCO 351411) with P Poh and W Tan trading as Hometown Kitchen.  The decision also records that the sponsor advised the Department in writing that the applicant had ceased employment with their company on 14 June 2017.

9. The decision record reflects that no new nomination was lodged and approved by another sponsor within the 90 day time period.  Accordingly, the delegate was satisfied that the applicant had ceased employment for more than 90 consecutive days and therefore did not meet the requirements of paragraph 8107(3)(b) of condition 8107 attached to his visa.

10. The Tribunal questioned the applicant whether he agreed that he had breached a condition of his visa, namely condition 8107(3)(b).  The applicant agreed that he did.

11. The Tribunal finds that the applicant has failed to comply with the requirements of condition 8107. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. The applicant has provided evidence at the hearing to the effect that he did not comply with the condition of his visa. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

12. 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’.

13. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.  Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.  Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.

14. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion.  In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    The purpose of the visa holder’s travel to and stay in Australia

15. The subclass 457 visa is for the skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

16. As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.  The Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor in the nominated skilled occupation.  The Tribunal finds that this purpose no longer exists because the applicant ceased working in the nominated position in June 2017 and the sponsor’s nomination has expired.

17. As noted before, the applicant is neither the subject of an approved nomination, nor the subject of an application for approval of a nominated position by a standard business sponsor or party to a labour agreement. 

18. The applicant ceased working for the sponsor on 14 June 2017.  He was in breach of his condition 90 days after that date, 12 September 2017. 

19. The applicant said he tried to get a new sponsor within the 90 day period however was unsuccessful.

20. The Tribunal is satisfied that the applicant’s purpose of his travel to and stay in Australia was to work.

21. The Tribunal gives this some weight in favour of exercising the discretion to not cancel the visa.

    The reason for and extent of the breach

22. The ground for cancellation arose in September 2017, 90 days after the applicant ceased employment with his sponsor.  He has neither worked in his nominated occupation nor in the business of the sponsor or an associated entity of the sponsor.  This represents a significant breach of condition 8107.

23. The applicant ceased working with his sponsoring employer in June 2017.  He had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days.  This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. 

24. The applicant did not inform the Department of the cessation of employment.  His oral evidence at hearing was that he went into the Department to advise them of the cessation of his employment, however, somebody at the counter told him he needed to obtain a new sponsor.  He said he was unable to speak to anybody about the loss of sponsorship.

25. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor.  The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 2 years since the cessation of employment represents a significant breach of condition 8107.

26. The Tribunal finds this weighs heavily in favour of exercising the discretion to cancel the visa.

    Circumstances in which the ground of cancellation arose

27. In his response to the NOICC, the visa holder stated that he moved his family to Australia in 2016.  He said he had a ‘private agreement’ with his sponsor in order to secure employment.  The Tribunal asked the applicant further about this and the circumstances in which the breach arose.

28. The applicant provided a history of ‘what’s app’ messages with an attached copy of a hand-written note by the sponsor, Rachel Poh.  In that note it details how the applicant was paid and how from that sum he was required to deduct his own tax and superannuation which was then returned to the sponsor in cash.

29. He said he took a lesser wage ($41,000 instead of $57,000) and paid his own superannuation in exchange for 2 years employment and the hope his sponsor would support his application for permanent residency.  He said he was paid into his bank account and was then required to repay some of the salary and his superannuation into another account held by the sponsor. 

30. The applicant also said that he had to pay the training nomination charge himself.

31. The applicant further stated that his sponsor told him they were intending to sell the business in June 2017 which is why he resigned at that time.  He said he subsequently found out the business was not sold.

32. He said he felt that the sponsor had done the wrong thing by him as he had worked there for 18 months and was 6 months away from applying for permanent residency.

33. The applicant said they knowingly entered the arrangement because they wanted to raise their children in Australia.

34. The applicant did not inform the Department that he was being exploited until they sent him the NOICC.

35. The parties informed the Tribunal that this sponsor has continued to breach the conditions of sponsorship with subsequent nominees.

36. Whilst the Tribunal understands the applicant’s justification for trying to secure nomination by other means, the outcome does not justify the behaviour. That is, even though the parties wanted to move to Australia with their children and for their children’s future, it does not justify a breach of the provisions of the Migration Act and Regulations by both the sponsor and the visa applicant. This behaviour can affect the integrity of the entire scheme.

37. The Tribunal finds this weighs heavily in favour of its discretion to cancel the visa.

    The degree of hardship (financial, psychological, emotional or other) that may be caused to the visa holder and any family members

38. The applicant has said that his children aged 8 and 5 are currently enrolled full-time in school and he has concerns for their welfare if they have to return to Malaysia.  The applicant said he had accepted money from a lending company in Malaysia when he was unemployed which he is unable to repay.  The Tribunal asked how much was involved and he said approximately $30,000.  The parties gave evidence that they are both working.  The applicant as a dishwasher and Uber Eats driver and his wife works in a factory doing packing and some paperwork.

39. The Tribunal accepts that the applicant and his family are in somewhat difficult circumstances.  They bought a house and found themselves unable to repay their debt when the applicant’s employment ended.  He said he was forced to borrow money from lenders in Malaysia.  Both he and his wife are working hard at the moment to support themselves and receive fee relief for their children’s schooling.  The applicant said he had concerns for his family’s safety in light of owing money to lenders in Malaysia.

40. The Tribunal asked and the applicant said they have family in Malaysia.  He has his parents and siblings and the wife has her mother.  The wife’s sister lives in Australia and their father recently passed away.

41. In considering the degree of hardship that the applicant and his family may be caused by visa cancellation, the Tribunal recognises that he and his family may face significant hardship should they return to Malaysia.  The Tribunal however, is mindful that the applicant is able to lodge separate claims for protection.

42. The Tribunal accepts that leaving Australia may cause some financial and emotional hardship to the applicant and his family.  Balanced against this however, is the fact that the applicant was on a temporary visa with no expectation of remaining in Australia permanently.

43. The Tribunal affords this some weight in considering whether to exercising its discretion in favour of not cancelling the visa.

    The visa holder’s past and present behaviour toward the Department

44. As previously found, the applicant did not inform the Department that he was underpaid and exploited by his sponsor until the NOICC was issued to him.  He said in his oral evidence that he tried to go the Department and inform them that he had ceased employment but was told they could not help him. 

45. The applicant has committed a breach of condition 8107 that he knew was imposed on his visa and has been unable to find a new sponsor thereby continuing the breach.  Despite saying that he tried to inform the Department of his employment ceasing, ultimately it was his responsibility to advise the Department of any changes in his circumstances that could lead to him breaching the conditions of his visa.

46. The Tribunal gives considerable weight to this factor in deciding to exercise its discretion in favour of cancelling the visa.

    Any consequential cancellations that may result

47. The Tribunal notes that the applicant’s wife and two sons were granted visas on the basis of being members of the family unit of the applicant, who is the primary visa holder.

48. The Tribunal gives this limited weight in favour of not exercising its discretion to cancel the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

49. The applicant is currently on a bridging visa as a consequence of this current review application.  In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia.  If that is so, he has the opportunity to depart Australia.  If he fails to do so, this may result in detention or removal action, but this is not a necessary consequence of the cancellation decision.

50. The Tribunal is mindful that section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skill visas. This limits the visa applications which can be made by the applicant whilst onshore.

51. The Tribunal considers this factor neutral in the exercise of its discretion.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

52. 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).

53. There is no evidence to suggest that the applicant’s children and wife would not return with him to Malaysia should he be required to leave Australia.  There is little in the evidence before the Tribunal suggesting that Australia would be in breach of its international obligations pursuant to any of these international agreements.  The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and ICCPR is not affected by the cancellation of the applicant’s visa.

54. The applicant has suggested that his children may be in danger if they were to return to Malaysia.  The applicant gave evidence of owing money to ‘lenders’ in Malaysia and said he feared for his family’s safety if he were to return.  The Tribunal has not assessed the legitimacy of this claim however is mindful that the applicant has the opportunity to lodge a separate claim for protection.  The parties advised the Tribunal that they had just lodged a protection visa application which is yet to be processed.

55. The Tribunal gives this factor some weight in favour of considering its discretion to cancel the visa.

    Consideration of discretion

56. On balance, the Tribunal considers that the visa should be cancelled.  To effectively reverse the cancellation by exercising its discretion in favour of not cancelling the visa would restore a Subclass 457 visa in circumstances where the applicant is not working in his approved occupation or for his sponsor.  No alternative sponsorship is proposed.  The Tribunal is concerned about the circumstances in which the breach arose and how it continued. The Tribunal has carefully considered the hardship that may face the applicant and his family should the visa be cancelled.  Whilst accepting they may face hardship, the Tribunal notes that alternative avenues for visas are available for the applicant.  The Tribunal is of the view that Australia would not be breaching any obligations under international agreements.

57. 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.

    DECISION

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

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

    Michelle East
    Member