Chen (Migration)

[2018] AATA 358

Chen (Migration) [2018] AATA 358 (22 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chun-Liang Chen

CASE NUMBER:  1709565

DIBP REFERENCE(S):  BCC2017/156758

MEMBER:Angela Cranston

DATE:22 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa.

Statement made on 22 January 2018 at 3:06pm

CATCHWORDS
Migration – Cancellation – Electronic Travel Authority (Class UD) visa – Subclass 601 (Electronic Travel Authority) – Intention to stay in or visit Australian temporarily for tourism or business purposes – Applicant undertook work qualification shortly after arriving – Intention to work – Grounds for cancellation exist – Consideration of discretion – Applicant failed to appear at hearing

LEGISLATION
Migration Act 1958, s 116(1)(g)
Migration Regulations 1994, r 2.43(ea)(ii), Schedule 8, Condition 8201

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 April 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116 and r.2.43(ea)(ii) for the following reasons:

I am satisfied that the visa holder ceased to have an intention to stay in or visit Australia temporarily for tourism or business purposes because he had applied for work health and safety general construction induction card soon after arrival in Australia for the intention to work.

3.    The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.    The Tribunal wrote to the applicant’s adviser on 20 October 2017 as follows:

On 26 April 2017 you provided New South Wales compliance officers your ‘work and health and safety general construction induction card’ RTO number RTO800178 issued by Safework New South Wales on 7/3/2017.

Departmental records show that you arrived in Australia on 1/03/2107 and you were issued with the card on 7/3/2017. This card may lead the Tribunal to find that you have applied for work health and safety card for the intention of working in the construction industry.

This is relevant because you held a 601 visit to stay in, or visit Australia temporarily for tourism or business purposes and based on the above, it appears that you have ceased to have the intention to stay in or visit Australia temporarily for tourism or businesses purposes. If the Tribunal finds that you ceased to have the intention to stay in or visit Australia temporarily for tourism or business purposes then subject to your comments, and subject to you providing any reasons why the Tribunal should not cancel your visa, the Tribunal would affirm the decision to cancel your visa.

5.    The Tribunal received the following response:

We are instructed to provide a series of photographs that the visa applicant has been actively engaged in tourism activities in Australia, demonstrating his genuine visitor per se.

We do also note that there are no evidence to suggest Mr Chin was in breach of any visa condition whilst holding the visa.

We do note that condition 8201 expressly allowing the visa holders to engage in studies or training for no more than three months. When approached by the department Mr Chen was undertaking a short training course and certainly not in breach of this condition.

We do thus submit that the fact that Mr Chan was conducting an activity expressly allowed by the visa should not be interpreted as he has ceased to have any intention to engage in other activities such as tourist or business in Australia.

We do note that section 116 cancellation does have very serious consequences to the applicant, greater onus should be placed to demonstrate that the intention to remain in Australia for visit and business purposes has ceased one should not act on mere suspicion.

We do thus submit that Mr Chen’s visa should not be cancelled the cancellation should be set aside.

6.    On 13 November 2017 the Tribunal wrote to the applicant’s authorised recipient advising that it had considered all the material before it relating to the applicant but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 January 2018 at 10.30am. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

7.    The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. There was no reason provided as to the applicant's failure to appear and there is nothing before the Tribunal to suggest that he was ill. In these circumstances, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8.    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

9. 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)(g) and r.2.43(1)(ea)(ii). That states that if satisfied, despite the grant of the visa, that the visa holder did not have, at the time of the grant, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted; or has ceased to have that intention; the visa may be cancelled, regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

1. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations).

2. It is claimed by the applicant that he was actively engaged in tourism activities in Australia demonstrating he is a genuine visitor and he provided a series of photos in support of these claims.

3. However, these claims before the Tribunal are lacking in essential detail. While the applicant claimed that he was actively engaged in tourism activities in Australia, he also provided compliance officers with his work and health and safety general construction induction card issued on 7 March 2017 which was less than one week after his arrival in Australia. When this was put to the applicant by the Department, he stated that he went with his brother to apply so that he could understand what his brother did for work in Australia and tell his parents and he did this because his brother had been injured many times and he wanted to find the safety issues at work. The applicant was invited to appear before the Tribunal but did not do so. As a consequence, the Tribunal has been unable to question him further about the reasons why he applied for the card, leaving the veracity of his claims that the card was issued because he was inquiring into his brother’s work and not because he ceased to have any intention to engage in tourism activities unclarified and the Tribunal's questions unanswered.

4. While the Tribunal has considered the submission that he was inquiring into his brother’s work and the submission that the applicant was simply undertaking a short training course and was not in breach of any condition, the Tribunal finds the timing and nature of the work health and safety course is indicative of someone who has the intention of working in the construction industry in Australia. While the Tribunal has also considered a series of photographs that show the applicant at various locations in Australia, the Tribunal finds these photos record fragments of time only and are not determinative of whether the applicant has actually ceased to have an intention to stay in or visit Australia temporarily for tourism or business purposes.

5. On the evidence before it, the Tribunal is not satisfied that the applicant is telling the truth when he states that he did not cease to have any intention to engage in tourism activities. The Tribunal is therefore satisfied that the ground for cancellation has been made out and the applicant ceased to have the intention to stay in or visit Australia temporarily for tourism purposes.

6. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(g) and r.2.43(1)(ea)(ii) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

7. The Department’s guidelines set out matters that as a matter of policy should be taken into account, where relevant, when considering whether to cancel a visa, whether temporary or permanent, under s.116. Potentially relevant to this matter are the following:

   ·the purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;

   ·the extent of compliance with visa conditions;

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

   ·     the circumstances in which the ground for cancellation arose (for example, whether there were extenuating circumstances beyond the visa holder’s control that led to the ground/s for cancellation existing). If cancellation is considered because of a relationship breakdown, consider whether the breakdown is the 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

   ·     the visa holder’s past and present behaviour towards the Department (for example, whether they have been truthful and cooperative in their dealings with the Department);

   ·     whether indefinite detention is a possible consequence of the cancellation decision;

   ·     whether upon cancellation the person would become an unlawful non-citizen liable to be detained under s.189;

   ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister’s intervention (eg ss.46A, 46B, 48, 48A, 91E, 91K, 91P);

   ·     whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, such as:

   if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;

   whether the cancellation would lead to removal in breach of Australian’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment;

   any other relevant matters.

8. When the Tribunal wrote to the applicant inviting him to provide any reasons why the Tribunal should not affirm the decision to cancel his visa if the Tribunal found that he had ceased to have the intention to stay in or visit Australia temporarily for tourism or business purposes, he did not respond to that question.  In addition, the applicant was invited to appear before the Tribunal but did not do so.  The Tribunal has therefore considered whether to cancel the visa taking into consideration that the applicant told the Department that he came to Australia for a holiday, that he wanted to apply for a student visa and wanted to study in Australia, and also noted that when interviewed, he was cooperative. The Tribunal is not persuaded these reasons are sufficiently strong to not cancel the visa.

9. No other submissions or information are before the Tribunal about whether any other considerations are relevant and as noted, the applicant did not attend the hearing and the Tribunal was unable to question him further.  

10. Based on the evidence available to the Tribunal and considering the circumstances as a whole, including that the applicant wants to study and was cooperative, the Tribunal concludes that the visa should be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa.

Angela Cranston
Member