Chen (Migration)

[2019] AATA 4140

Chen (Migration) [2019] AATA 4140 (10 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haibo Chen

CASE NUMBER:  1902810

HOME AFFAIRS REFERENCE(S):           BCC2018/4847899

MEMBER:Mark Bishop

DATE:10 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 590 (Guardian) visa.

Statement made on 10 September 2019 at 11:21am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 590 (Guardian) – engaged in work – purchase of business  – active role in business – theft – employee disappeared – forced to supervise business – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 590 (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 had worked in Australia in breach of condition 8101 attached to 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 10 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant provided a copy of the decision record to the Tribunal.

5. 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

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

8. The delegate outlined the applicant was granted a Tourist (subclass 600) visa on 11 October 2014 and a subsequent Tourist visa on 22 October 2016. The visa holder travelled to Australia on multiple occasions while on Tourist visas from 10 December 2014 to 216 April 2018.

9. On 22 June 2018 the visa holder was granted a Student Guardian (subclass 590) visa offshore with condition 8101 attached. The visa holder first arrived in Australia as the holder of a Student Guardian (subclass 590) visa on 2 July 2018.

10. The delegate summarised the evidence of grounds leading to cancellation as follows:

    ·On 10 October 2018 the visa holder arrived at Melbourne Airport. On his arrival, he was interviewed by Australian Border Force (ABF) officers.

    ·During the interview, the visa holder said the following through an interpreter:

    oHis phone number is 0402190728, which was also declared in the Incoming Passenger Card (IPC).

    oHe has a company in Australia, named ‘C & WANG’. It is a motel. The trading name is KICKBACK COTTAGES.

    oHe is a shareholder of the company.

    ·On 10 October 2018, the ABF officer accessed the KICKBACK COTTAGES’s website at which lists the business’s phone number as 0402190728.

    ·This is the number provided on the visa holder’s IPC, dated 10 October 2018, as his contact phone and which was also verbally confirmed to the ABF officer by the visa holder of 0402190728 being their contact phone number.

    ·The ABF officer decided to conduct a search on the visa holder’s phone under section 252 of the Act.

    ·During the search, multiple messages on the visa holder’s phone (phone number 0402190728) were located, showing that the visa holder was taking an active role in the day to day operation of KICKBACK COTTAGES. The messages are dated to be all from 2018, including messages sent and received after 22 June 2018, when their subclass 590 visa was granted.

    ·Based on the findings from the interview and search undertaken by the ABF officers on 10 October 2018 it appears the visa holder has not complied with condition 8101 attached to his visa as he has engaged in work in Australia while holding a subclass 590 visa.

    ·If the visa holder did not comply with a visa condition - 8101, his Student Guardian (subclass 590) visa may be cancelled under section 116(1)(b) of the Act, which sets out the following ground for cancellation:

    os116 (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    o(b) its holder has not complied with a condition of the visa;

11. The applicant was notified of the intention to consider cancellation (NOICC) and the notice invited the applicant to respond in writing (Df: 17). The applicant did respond. The delegate made a finding applicant the applicant responded and advised there were not reasons for cancellation. He also provided reasons why the visa should not be cancelled as follows:

    ·The visa holder’s child Xuanlin CHEN (DOB: 28/04/2005) is studying in Acknowledge Education Language Center in Box Hill. The visa holder and his child are living in the property by themselves, and the visa holder’s main duty is to look after his child.

    ·A letter has been provided as a part of the visa holder submission from Education provider Acknowledge Education dated 16 January 2019, stating that Xuanlin CHEN has studied at the Melbourne Language Centre in Box Hill from 16 July 2018 to 21 December 2018. It is advised that during this time the Xuanlin CHEN has lived with the visa holder and has recollections of the visa holder dropping the child to and from school every day.

    ·Further information was provided to address in the business in the response to the NOICC, where it is advised the business was purchased in 2017 and settlement took place in April 2018. The business was named "Kickback Cottages", after settlement. The visa holder appointed a local employee to manage the whole motel.

    ·The visa holder did not engage in anything until they found out the employee was cheating on them and cost major damage to the business.

    ·The visa holder appointed another person Ms HAN (Mona) to take over the position of manager.

    ·The visa holder is a fulltime father. His main responsibility is to take care of the child.

    ·As a consequence of the bad experience, the visa holder started to monitor the business performance through his mobile phone and that is the reason why there were messages found in the visa holder’s mobile phone.

    ·It is advised the visa holder’s situation does not fall into any of above circumstances as the visa holder’s business activities are run by an employee at the motel, the visa holder’s resident place is hours away from the motel. The visa holder only executes his right as a business owner to supervise the motel business. Purchasing a business and monitoring the business do not abuse any of the visa holder’s visa conditions attached to his subclass 590. This means as a holder of a guardian visa, the visa holder is allowed to own a business anywhere in the world.

    ·Therefore the visa holder believes the ground of cancellation does not exist. The visa holder’s visa should not be cancelled as his child is going to Blackbum High School later on, and it is very important the visa holder remains in Australia with his child during the studying period, while taking into consideration the child’s age.

    ·The visa holder will continue to appoint the manager to work for them, but as the business owner will monitor the business at the same time.

12. The applicant provided relevant supporting documentation.

13. In evidence the applicant advised as follows:

    ·     He came to Australia to supervise the education of his daughter. She is now 14 and enrolled at Blackburn High School. The applicant’s wife lives in China and visits Australia to stay with her husband and child on a regular basis;

    ·     He purchased a motel in Lakes Entrance in 2017 and appointed a local person as manager. He rarely visited the motel complex. It is a small 8 room complex that is busy in warmer weather. He discovered the local employee was stealing from him and made a complaint to police. He advised the employee was now in gaol. He did not provide proof of a prosecution or finding of guilt or sentence;

    ·     He advised he paid $900,000 AUDS for the motel and settlement occurred in April 2018. He discovered several instances if employee theft in the first half of 2018. He did not sack the employee. She simply “went missing”;

    ·     After the disappearance of the local employee he appointed Mona to manage his motel. She is a Chinese woman who lives in Kew with her family and owns a similar motel very close to the motel of the applicant. She agreed to manage the applicant’s motel for a 10% share of the net profit. It is yet to make a profit;

    ·     She gave evidence she does the bookings, meets customers and organises the cleaning and general maintenance on a regular basis. She gave evidence the applicant rarely attends the motel and remain in Melbourne nearly all the time looking after his daughter. Her son and the applicant’s daughter are a similar age and the families spend time with each other in Melbourne. She gave evidence she managed the motel and the applicant had little if any day to day involvement.

14. The applicant advised the Tribunal that after his first manager went missing and prior to retaining Mona as his motel manager he was involved in some basic bookings organisation and staff direction as to cleaning. He confirmed he was a participant in a range of texts in August/September 2018. Arguably this activity at that time was work.

15. On the evidence before the Tribunal, the applicant was engaged in work at the relevant time. Accordingly, the applicant has not complied with condition 8101 attached to his visa.

16. 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

17. 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’.

    Consideration of the discretion to cancel the visa

18. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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’

    Consideration of discretion

    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’.

19. The applicant provided a written submission to the Tribunal prepared by his solicitors. It outlined the following:

    ·     The submission summarised background information in that the applicant had purchased a motel in Lakes Entrance prior to the grant of his 590 visa. The business was purchased by C & Wang International Pty Ltd. A relevant extract from ASIC was provided;

    ·     In the IPC the applicant declared his mobile phone number and the Border Force Officer located “some messages” in relation to the business operation. The delegate described this as “multiple messages”;

    ·     The applicant’s child Xuanlin CHEN is studying at Acknowledge Education Language Centre in Box Hill. The applicant’s main duty is looking after his child;

    ·     The business was purchased in 20917 and settlement took place in April 2018. The applicant appointed local employees to manage the business. The applicant alleges the local employee cheated him. He appointed another person, a MS HAN to take over the position of manager. Because of this bad experience he started to monitor the business;

    · The applicant provided an extract of the definition of “work” from the Migration Act

20. The applicant provided the following documentation:

    ·Copy of a “notice to victim” dated 24 February 2018 relating to the theft of a motor vehicle and obtaining of property by deception;

    ·Confirmation of enrolment of Xuanlin CHEN at Blackburn High School from 29 January 2019;

    ·Twelve month lease agreement signed by the applicant for a property at John St Blackburn Vic;

    ·Semester 1 school report for the applicant’s son

21. The applicant did not provide a copy of an extract from ASIC as outlined in paragraph 20 above.

22. In evidence the applicant advised the Tribunal he sacked his former law firm because they were incompetent. He advised the Tribunal he felt he had been ripped off serially by a real estate salesperson, his solicitor, his Migration Agent and an employee at this motel. He advised the Tribunal he did not engage in work in the motel and did not manage the motel. His only interest was to ensure it was run properly and returned a profit. He was satisfied with the current management of the motel.

23. 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

24. The applicant came to Australia to supervise his daughter’s education. He did not advise of any other family in Australia. He has spent a lot of money to find a place for his daughter in a school in Australia. He is not a wealthy man and sold his home and property in China to fund his daughter’s education In Australia.

    The extent of compliance with visa conditions

25. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  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)

26. If the applicant is required to leave Australia he will be forced to sell his motel. He has not made any profit to date. It is likely it will be sold at a loss. The hardship experienced will be of a financial nature.

    Circumstances in which ground of cancellation arose

27. The circumstances are outlined in detail in the delegate’s decision.

    Past and present behaviour of the visa holder towards the department

28. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

    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

29. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled. Without he father’s presence in Australia it is likely his daughter will also have to leave Australia as she is a minor.

    Whether there would be consequential cancellations under s.140

30. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

31. There is nothing before the Tribunal to indicate there are international obligations to consider.

32. Any other relevant matters

33. There are no other relevant matters before the Tribunal.

34. The Tribunal has considered all the evidence. The Tribunal is not satisfied the applicant was engaged in work in the motel in the relevant period when his former employee disappeared and prior to the appointment of a new manager. The Tribunal is satisfied the applicant has not engaged in any work in the period after September 2018 in the motel.

35. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

36. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 590 (Guardian) visa.

    Mark Bishop
    Member