Chen (Migration)

[2019] AATA 3988

Chen (Migration) [2019] AATA 3988 (14 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Huiting Chen
Ms Tsz Tung Chan

CASE NUMBER:  1823154

HOME AFFAIRS REFERENCE(S):           BCC2018/2031595
BCC2015/2054402

MEMBER:Susan Trotter

DATE:14 June 2019

PLACE OF DECISION:  Brisbane

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 second named applicant.

Statement made on 14 June 2019 at 5:10pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – employment ceased more than 90 days – changed jobs – current nomination undecided – best interest of child – no jurisdiction for second name applicant – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107, 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 August 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 failed to comply with visa condition 8107(3)(b) of her Subclass 457 visa. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 named applicant.

4. The applicants lodged an application for review with the Tribunal on 10 August 2018. The applicant appeared before the Tribunal on 7 June 2019 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent.

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

   ISSUES

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(b) which applies if a visa holder has not complied with a condition of the visa.

7. Relevantly, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer. At the of visa grant, condition 8107(3)(b) required that the applicant not cease employment for more than 90 consecutive days.

8. If satisfied that a 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.

9. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department of Immigration and Border Protection’s (the Department) Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ including:

   (a)  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;

   (b)  The extent of compliance with visa conditions;

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

   (d)  Circumstances in which ground of cancellation arose. 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;

   (e)  Past and present conduct of the visa holder towards the Department;

   (f)    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;

   (g)  Whether there would be consequential cancellations under s.140;

   (h)  Whether any international obligations would be breached as a result of the cancellation; and

   (i)    Any other relevant matters.

10. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist? And, if so,

    (b)  Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issue 1 - Does the ground for cancellation exist?

11. At the hearing, the applicant confirmed that she commenced working with her original sponsor in January 2016 and ceased working with them in May 2017 to commence with a new employer, in relation to whom there currently remains an undecided application before the Tribunal in relation to approval of a nomination by the new employer. The applicant told the Tribunal that she acted on the advice of her previous migration agent and resigned from employment with her original sponsor on 1 June 2017 following giving her resignation in May 2017. She later commenced employment with the new employer, but ceased work with them pending resolution of her visa issues arising out of the cancellation of the visa the subject of this application. The applicant told the Tribunal that although she now realised she breached a condition of the visa she did not at the time realise that as she was acting on the advice of her then migration agent and thought she was following all the correct steps to transition to another employer.

12. Although there was some inconsistency as to when the applicant commenced work with the new employer, including as put to the Tribunal pursuant to s.359AA of the Act, in written submissions and at hearing it was not disputed that the applicant had breached condition 8107 such that a ground for cancellation exists.

13. As such, 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.

    Issue 2 - Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?

14. As already noted, 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’ referred to earlier in these Reasons.

15. The applicant was granted a Subclass 457 visa on 18 August 2015 to work in the position of Technical Sales Representative for her sponsoring employer. The purpose of the Subclass 457 visa scheme was to fill genuine shortages in the Australian skilled job market and the occupation of Technical Sales Representative was is included on the list of occupations designated for that purpose at the relevant time. The applicant commenced employment with her nominator and employer in January 2016 and ceased working for that employer on 1 June 2017 following giving her resignation. Prior to resigning from the position, she sought out and was successful in obtaining employment with another employer, a position which she considered would better provide her with skills consistent with her education and goals, and further, because the new employer was using a better product. She sought, and followed, advice from her then migration agent in relation to transitioning between the two employers. Ultimately, however, the nomination application by the new employer was refused by the Department, and is currently the subject of an undecided application to the Tribunal. The applicant’s evidence at hearing was that if advised differently, she would have remained employed with her original nominator and employer until the subsequent nomination was approved. A copy of the applicant’s resignation letter in this regard was in evidence before the Tribunal. The applicant’s evidence to the Tribunal was she worked for the new employer until September 2018 and that the new employer then became concerned because of the uncertainty of her visa status but has assured her that she would be reemployed if her visa status was rectified.

16. Having regard to the circumstances in which the applicant ceased to work for her original nominator and employer and the applicant’s voluntary resignation based upon her then migration agent’s advice, the Tribunal is satisfied that the circumstances in which the ground of cancellation arose were beyond the control of the applicant. The Tribunal has placed considerable weight on this factor as weighing against exercising the discretion to cancel the visa.

17. There is no information on the departmental file indicating that the applicant has had any compliance issues in the past. This also weighs against exercising the discretion to cancel.

18. The Tribunal acknowledges that upon the cancellation of her visa, the applicant would become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s198 if she does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of her visa.

19. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116 and these intended consequences do not amount to a factor that the Tribunal finds weighs either for or against exercising the discretion to cancel the visa.

20. The Tribunal also considered the financial, psychological or emotional hardship that may be caused to the applicant and any family members. The Tribunal accepts the following evidence before it in that regard:

    (a)  The applicant’s daughter, the second-named applicant, has lived in Australia since she was four years of age and has integrated well at school (currently in Grade 3) and with the Australian culture.

    (b)  All of the applicant’s immediate family members (including her parents and her brother) reside in Australia and have for more than 15 years and are either Australian citizens or permanent residents.

    (c)  If forced to return to Hong Kong, the applicants will be isolated from their immediate family.

21. Given the length of time the applicants have lived in Australia, and the considerable resources devoted to living in Australia, and the understandable connections that have grown between, in particular, the second-named applicant and other family members during that time, the Tribunal is satisfied that there would be not insignificant financial, psychological and emotional hardship to the applicants and family members if the visa remained cancelled. The Tribunal places significant weight upon this factor as weighing against exercising the discretion to cancel the visa.

22. The Tribunal also had regard to the Convention on the Rights of the Child (the Convention), to which Australia is a signatory, requiring that the “best interests of the child” are a primary consideration and is satisfied that given the lengthy time period the second-named applicant has lived in Australia, and given the residence of most of her family in Australia, her integration into the Australian community, including at school, the Tribunal is satisfied it is in the best interests of the second-named applicant, a child, to remain in Australia. The Tribunal places significant weight on this factor as weighing against exercising the discretion to cancel the visa.

23. There would be a consequential cancellation under s.140, that is the second-named applicant’s visa, if the discretion to cancel the visa was exercised and the Tribunal gives weight in favour of not exercising the discretion to cancelling the visa in this regard for the same reasons as outlined in the previous paragraph.

24. In the circumstances of the applicant seeking out and obtaining work in the same nominated occupation for which the visa was granted, which work would likely again be available to her upon regularisation of her visa status, the Tribunal considers that the purposes of the visa program would be upheld if the visa was not cancelled and the Tribunal also places weight on this factor as weighing against exercising the discretion to cancel the visa.

25. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

26. On balance and considering the circumstances as a whole, as canvassed in these Reasons, the Tribunal concludes that the discretion to cancel the visa should not be exercised.

    DECISION

27. 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.

28. The Tribunal has no jurisdiction with respect to the second named applicant.

    Susan Trotter
    Member