Chang (Migration)

[2019] AATA 1371

Chang (Migration) [2019] AATA 1371 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jiayin Chang

CASE NUMBER:  1722314

HOME AFFAIRS REFERENCE(S):           BCC2015/2030439

MEMBER:Stephen Witts

DATE:8 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 580 Student Guardian visa.

Statement made on 08 May 2019 at 12:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 580 (Student Guardian) – ground for cancellation – no work requirement – found on two occasions to be working in two different massage businesses – consideration of discretion – single mother with a son currently living in Australia engaged in tertiary study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8101

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 580 Student Guardian 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 was in breach of visa condition 8101. 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 8 May 2019 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was assisted by a witness Mr Simon Sheldy.

6. 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

7. 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

8. 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 8101 attached to the applicant’s visa. This condition requires that the visa holder must not engage in work in Australia.

9. According to the delegate’s decision, provided to the Tribunal by the applicant, the applicant arrived in Australia on a TU580 visa as a guardian to look after her son who is studying in Australia and the holder of a TU571 visa. According to the delegate the ground for cancellation arose because the applicant was located at a massage business in Altona North on 15 August 2017 engaged in work and admitted to carrying out activities that would usually be considered as work.

10. According to the delegate Australian Border Force also visited another business on 2 March 2017 during a Field Compliance operation where they located the visa holder working at a massage business in Bentleigh. A notice of intention to consider cancellation (NOICC) was issued to the visa holder on the same day for non-compliance with the condition 8101. According to the delegate, at a subsequent interview, an ABF officer decided not to cancel the visa at that time.

11. According to the delegate, on 15 August 2017 during a Field Compliance operation the visa holder was located a second time working in a massage business in Altona North.

12. According to the delegate Australian Border Force offices observed the visa holder coming to greet them at the front door when they entered the business and that her behaviour at this time demonstrated that she was working in the business.

13. According to the delegate’s decision the applicant stated that she was not working at the shop but that the shop belonged to one of her good friends who was in China who asked her for a favour to collect money from customers and change bedsheets. The applicant stated that she only went to the shop twice when someone was moving into the room as the business was also an air bnb business. According to the delegate the applicant stated that she collects money from customers and passes it on to the owner’s relative.

14. According to the delegate the applicant stated that she was only helping her friend out by collecting money from customers and cleaning the rooms and that she was not getting paid. However, according to the delegate, this kind of activity would usually attract some sort of remuneration and therefore is considered as work. The delegate further contended that in regard to the 2 March 2017 visit the owner’s friend also stated that the applicant had been helping out as a receptionist and cleaner for a few weeks while the owner is overseas.

15. The applicant also provided a written submission in regard to the 15 August 2017 visit to the delegate which has been considered by the Tribunal. In this submission the applicant stated that she happened to be with a male friend who had picked her up from her home and that on their way to another location he received a phone call from his business partner of the shop asking him to pick up towels from the shop for cleaning. The applicant stated that due to this circumstance she happened to be at the shop location and that she went to the toilet at the back of the shop and happened to be carrying a basket of towels when the Department of Immigration found her in the business. She stated that she was aware that this was the second time that she had been found in a massage shop by the Department but that it was a coincidence.

16. At hearing the Tribunal had a discussion with the applicant regarding the circumstances of her 8101 visa condition cancellation. The Tribunal asked the applicant to confirm that she was in these businesses on 2 March 2017 and 15 August 2017 and that she was interviewed by Australian Border Force in regard to these events. The applicant confirmed that she was at these premises on these days but denied that she was actually engaged in work. The applicant reiterated her point of view as outlined in her written submissions to the delegate that she happened to be at those addresses at that time but that she was not engaged in work. She contended that on 2 March 2017 she had agreed to help out her friend who is an owner in the business by engaging in work activities as a favour. She also contended that on 15 August 2017 she was in that business as a coincidence because she happened to be in a car with a friend who is a business partner in the business who was called by his business partner asking him to pick up towels from the shop for cleaning. The applicant did not provide any other evidence in regard to these two visits by Australian Border Force and the circumstances as to what she was doing in those businesses on that date.

17. The Tribunal was concerned that the applicant was not able to provide any further evidence for her being in these two businesses at the time of these visits by Australian border Force. The Tribunal also notes that there appeared to be a contradiction in terms of the evidence given by the applicant as to the circumstances of her being in the business on 15 August 2017. Initially the applicant seemed to be stating that she had organised to visit on that particular day to assist with the business and then when reminded by the Tribunal about her statement regarding being with a friend in the car that day she then asserted that it was a random visit caused by that phone call and request to visit the business.

18. The Tribunal, after consideration of the evidence given at hearing, and the statements and submissions in the delegate’s file, finds that the applicant’s explanation for being in those two businesses at those times was not plausible. The Tribunal finds that it is more likely that the applicant was in fact working in those businesses.

19. 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

20. 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’.

21. The Tribunal has considered all the material in the delegates file and in the Tribunal file and the evidence given at the hearing.

    ·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

22. The applicant stated that she first arrived in Australia on 22 October 2015 on a TU580 Student Guardian visa. She stated that this visa had an expiry date of 28 August 2018. She stated that she came to Australia originally to assist her son, born on 12 April 2000, and on a student visa who was studying year 11 at age 17 at the time the applicant’s visa was cancelled.

23. The applicant stated that to she was a single mother who had an architecture business and a restaurant business back in her home country. She stated that the architecture business has since been wound up and her restaurant business has been franchised to another party for a period of time. She stated that she has her parents back at home.

24. The Tribunal asked the applicant to outline any compelling need she may have to remain in Australia on Student Guardian visas, particularly bearing in mind that her son is now 19 years old, and an adult, and is now engaged in tertiary study, a Diploma of Business.

25. The applicant stated that she and her son were still living together here in Australia and that if she could not remain in Australia on Student Guardian visas that she will then have to return home and would not be allowed to come back to Australia for several years. She stated that she would not be able to visit her son and that she needs to remain here in Australia on Student Guardian visas to help him.

26. The Tribunal is mindful that the applicant is a single mother with one son who is currently living here in Australia. However, the applicant’s son is an adult now and is living here engaged in tertiary study. The applicant could remain in touch with her son on a regular basis who could return home for lengthy periods of time during his student vacations and be with his mother. Alternatively, the applicant’s son could return home to his home country with his mother and continue his studies back in his home country.

27. The Tribunal has considered the evidence put by the applicant but finds that the applicant has not demonstrated that she has a compelling need to remain in Australia on Student Guardian visas.

    ·the extent of compliance with visa conditions

28. The Tribunal has found that the applicant was in breach of her visa conditions by not adhering to visa condition 8101 which precludes the applicant from working. But there is no evidence to indicate the applicant has breached other conditions.

29. The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. As such the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

30. When asked by the Tribunal to outline any hardship that would be caused by the applicant not being able to remain in Australia on Student Guardian visas the applicant stated that she has been a single mother since her son was two years old and that her son meant everything to her. She stated that her son made the decision to come to Australia as a student and that it was a dream for him and so she gave up her businesses in China. She also stated that she has spent a lot on her son’s tuition fees.

31. The Tribunal is mindful that the applicant has come to Australia to be with her son and assist him with his life here whilst here studying but finds that the applicant did not provide any other evidence that demonstrates that she would actually experience a degree of hardship should she return back to her home country where she could remain in regular contact with her son, alternatively, her son could return home for holidays during study breaks or return home once he has finished his business diploma level course.

32. The Tribunal finds that the applicant has not demonstrated that a degree of hardship may be caused if she could not remain here in Australia on Student Guardian visas.

    ·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

33. The Tribunal has reviewed the evidence provided by the applicant and to the evidence and material in the delegates file and in the Tribunal file and finds that there are no grounds for cancellation beyond the visa holder’s control.

    ·past and present behaviour of the visa holder towards the department

34. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the department or the Tribunal in her dealings. However, this is expected of all visa holders.

    ·whether there would be consequential cancellations under s.140

35. There is no evidence of consequential cancellations under s.140.

    ·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

36. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and she may be subject to a three year exclusion period under relevant Public Interest Criterion.

37. It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which she can leave the country or apply for review of the decision.

    ·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

38. There is nothing before the Tribunal to indicate any international obligations to consider.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

39. There is nothing before the Tribunal to indicate any relevant issues of consideration in this circumstance.

    ·any other relevant matters

40. The applicant also provided a witness on her behalf, Mr Simon Sheldy, who stated that the applicant’s son would find it difficult to remain in Australia studying if his mother has to go home because he needs parental guidance. The Tribunal has considered this but finds that the applicant’s son is now an adult and can either continue his studies as such here in Australia or either now or at some point in the near future return to his home country to be with his mother.

41. The Tribunal has considered the evidence provided by the applicant and finds that the applicant has not provided sufficient evidence to refute the delegate’s contention that the applicant was in breach of her visa condition 8101 by working here in Australia. The Tribunal finds that the evidence provided by the delegate demonstrated that the applicant was involved in working here in contravention of her visa. The Tribunal further finds that the applicant did not provide evidence of a compelling need to remain here in Australia on Student Guardian visas or that any hardship would be caused by her visa being cancelled.

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

    DECISION

43. The Tribunal affirms the decision to cancel the applicant’s Subclass 580 Student Guardian visa.

    Stephen Witts
    Member