Chen (Migration)

[2023] AATA 1463

Chen (Migration) [2023] AATA 1463 (10 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hong Chen
Ms Lulu ZHANG
Master Shi Huang CHEN

REPRESENTATIVE:  Mr STANLEY CHAN (MARN: 0430097)

CASE NUMBER:  2210571

HOME AFFAIRS REFERENCE(S):          BCC2021/1308150

MEMBER:Noelle Hossen

DATE:10 January 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

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

Statement made on 10 January 2023 at 1:40pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ground for cancellation – ceased employment with sponsor – consideration of discretion – work-related injury – purpose of travel and stay – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348

Migration Regulations 1994 (Cth), Schedule 8, Condition 8607

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors 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 20 July 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant did not comply with condition 8607 because the period that the applicant had ceased employment has exceeded 60 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 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 applicants were represented in relation to the review.

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?

   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 8607 attached to the applicant’s visa. This condition requires that if the visa holder ceases employment the period with which the holder ceases employment must not exceed 60 consecutive days.

8. On the16 November 2018 the applicant lodged an application for a Temporary Skill Shortage (Labour agreement) subclass 482 Visa with his nominated occupation declared.

9. On the 19 November 2018 a Delegate of the Minister granted the applicant the Temporary Skill Shortage (Labour Agreement) (Subclass 482) Visa as he had met the relevant criteria – the visa conditions imposed on the applicant’s visa at the time of the grant included condition 8607, which states in part:

   8607: If the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

10. The applicant may not have complied with condition 8607.

11. On the 16 October 2019 the sponsor applied to nominate the applicant. TEYS AUSTRALIA SOUTHERN Pty Ltd (the sponsor) applied to nominate the applicant for a position as per the requirements of condition 8607 attached to his Visa. The nomination was approved on the 27 November 2019.

12. On the 23 June 2021 the sponsor notified the Department that the visa holder ceased employment with them on the 15 June 2021.

13. The period that the applicant had ceased employment exceeded 60 consecutive days at the time that the Department issued the Notice of Intention to Cancel the Visa on the 7 March 2022.

14. The Notice of Intention to Consider Cancellation was provided to the applicant in writing dated 7 March 2022. It was indicated that the method of response specified in the notice was that it should be in writing. That the applicant did not provide a response to the notice to the Department. The Department did not receive a response to the notice therefore is not aware whether he agrees or disagrees that there is a ground for cancellation of his Visa.

15. The Department found that there was no information on departmental systems that indicated that the applicant had an approved nomination for him to work for any other employer aside from TEYS AUSTRALIA SOUTHERN Pty Ltd.

16. The applicant was invited to a hearing to provide oral evidence to the Tribunal on the 19 December 2022, but the Tribunal received an email from the applicant’s representative, Stanley Chan dated 12 December 2022 asking that the Tribunal deal with the matter on the papers and declining the hearing invitation. The only comment in the email sent to the Tribunal was that the applicant had suffered a severe work-related injury and was forced to write his own resignation letter and was not able to work. However, there was no evidence to support the allegation contained in the email from the representative. The Tribunal does not have any evidence that the applicant suffered a work-related injury nor any information relating to any proceedings to Fair Work or any other legal proceedings. The representative stated that he had advised the applicant to seek legal advice to make a claim, but the applicant had declined to do so. The applicant did not submit any medical evidence of his alleged injury.

17. 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

18. 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.

    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

19. The only evidence available is the evidence as contained in the delegate’s decision as other than the email from the applicant’s representative, stating that he suffered a work-related injury the applicant did not provide any further evidence including submissions or paperwork. The applicant declined an invitation to attend a hearing. The delegate stated in his Decision that the applicant arrived in Australia on 4 December 2018 as the holder of a Temporary Skill Shortage (labour agreement) Visa and has remained on shore since that date.

20. The applicant’s Visa was granted on the basis that he was to work for his approved employer ASHTON Pty Ltd. On 21 August 2019 ASHTON Pty Ltd notified the Department that the Visa holder had ceased employment with them on 16 August 2019. On 27 November 2019 the applicant had a new nomination approved, for him to work for a new approved employer TEYS SOUTHERN AUSTRALIA Pty Ltd (the sponsor). On 23 June 2021 the sponsor advised the Department that the applicant had ceased employment with them effective on 15 June 2021. There is no information on departmental systems that indicates that the applicant has a new nomination approved for him to work for any other employer

21. On 18 August 2021 the applicant’s wife Lulu Zhang (date of birth 15 February 1991) lodged a valid application for a Temporary Activity Australian Government Endorsed event(Subclass 408) Visa listing the Visa holder as a dependent. That application was under assessment at the time of the Delegate’s Decision.

22. The Department concluded that the information indicated that the applicant’s purpose for remaining in Australia had changed and that his purpose for remaining in Australia is to accompany his wife as a secondary Visa holder should his wife’s application be granted.

23. The Tribunal places some weight on those facts in favour of cancelling the Visa.

    The extent of compliance with visa conditions

24. the applicant’s temporary skill shortage Visa was granted with Visa conditions 8501 and 8607 imposed. Visa condition 8501 requires the applicant to maintain appropriate health insurance wine Australia and there is no information before the Department or the tribunal that indicates that he has not complied with this condition.

25. As stated in the in the department’s decision it appears that the applicant is not complied with condition 8607 subparagraph five as the sponsor has advised that the applicant’s employment with them ended on 15 June 2021. Neither the sponsor nor the applicant has advised the Department that he has returned to work for the sponsor. Therefore, the period since the applicant was employed in his nominated occupation has exceeded 60 consecutive days.

26. There is also no information on departmental systems that indicates the applicant has a new approved nomination for him to work for any other employer.

27. The Tribunal places some weight on those facts in favour of cancelling the visa.

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

28. The applicant has not provided a response to the notice of Intention to Cancel the Visa, so the Tribunal is unaware of any specific hardship the applicant may experience should the Tribunal decide to cancel his Visa. The Tribunal accepts that the cancellation of the Visa may cause emotional hardship or some financial hardship as the applicant will have no work rights and therefore no legal ability to work in Australia to gain income.

29. The Tribunal places some weight on those facts against the cancellation of the Visa.

    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:

30. The Tribunal does not have any information other than the email from the representative setting out a possible reason for the termination of employment due to a work-related injury. The Tribunal is unable to assess this ground as there are no details or evidence available to the Tribunal other than what is contained in the Delegate’s Decision and the email dated the 12 December 2022. The Tribunal makes no findings in respect of this consideration.

    Past and present behaviour of the visa holder towards the department:

31. The Tribunal has no information before it save and  except that the ground for cancellation arose because the applicant was not working for the approved sponsor for a period exceeding 60 days.

    Whether there would be consequential cancellations under s 140 and whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention:

    According to the records the following people hold their Visa because the applicant holds his Temporary Skill Shortage Visa namely Lulu Zhang (date of birth 15 February 1991) and Shi Huang Chen (date of birth 11 April 2010)

32. The Visa held by the above-named people were granted on the basis of being part of the applicant’s family unit as he was the primary Visa holder. Cancellation of his Visa will result in the consequential cancellation of the visas held by the above-named by operation of law under section 140 of the act.

33. The Tribunal places some weight on those facts against cancelling the Visa.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

34. If the Visa is cancelled the applicant would become an unlawful noncitizen and could be liable for detention under section 189 and removal under section 198 of the act if he does not voluntarily depart. In addition, the applicant may be affected by section 48 of the Act which means that the Visa holder will have limited options to apply for further visas in Australia. The Tribunal places some weight on those facts against cancelling the Visa.

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

35. The policy guidelines require that all delegates should assess whether Australia would be in breach of its international obligations if the Visa was to be cancelled. These include amongst others the obligations in relation to non-refoulement and pursuant to the 1951 Convention relating to the status of refugees (the refugee Convention) and its 1967 Protocol international Covenant on Civil and Political rights, the Convention on the Rights of the Child and the Convention against torture and other cruel inhumane or degrading treatment or punishment.

36. The applicant is a citizen of China. He has not applied for protection or raised any claims of any fears returning to his home country. There is also no information available before the Tribunal to indicate that the applicant’s political and civil rights would be affected if his Visa was to be cancelled. The Tribunal is satisfied that cancelling the Visa would not potentially lead to the applicant’s to be removed in breach of Australia non-refoulement obligations under the Refugee Convention or in breach of Australia’s obligations under the Convention against Torture and other Cruel inhumane or Degrading Treatment or Punishment

37. It is stated in the Decision of the delegate that the applicant’s son has never arrived in Australia. Therefore, there is no information before the Tribunal to indicate that the applicant has other children in Australia. As such the Tribunal considers that the circumstances of this case would not lead to a breach of Australians International obligations under the Convention on the Rights of the child in relation to observing the rights of a child in Australia.

38. For this consideration the Tribunal places some weight in favour of cancelling the visa.

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

    DECISION

40. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

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

    Noelle Hossen
    Member