Chung (Migration)

[2018] AATA 4167

Chung (Migration) [2018] AATA 4167 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Won Yong Chung

CASE NUMBER:  1717975

HOME AFFAIRS REFERENCE(S):           BCC2017/1896414

MEMBER:K. Chapman

DATE:14 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 14 September 2018 at 3:20pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – ceased to work in occupation – wall and floor tiler – new nomination lodged late – resigned – physical injury – letter from nominator – resides in different state from nominator – temporary visa ceased – awareness of Condition 8107 – inconsistent information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (‘the Act’). The applicant is a national of South Korea.

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant did not comply with condition 8107(3)(b) of his Subclass 457 visa because the applicant ceased to work in the occupation of Wall and Floor Tiler (ANZSCO 333411), in his most recently approved nomination with Top Tiling Services Pty Ltd, for a period exceeding 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. The visa cancellation decision record of 14 August 2017, a copy of which was provided to the Tribunal by the applicant, reveals the following particulars:

   a.on 3 December 2013, the applicant was granted a Subclass 457 Business (Long Stay) visa valid until 3 December 2017;

   b.the standard business sponsor who nominated the applicant in the most recently approved nomination is Top Tiling Services Pty Ltd (‘Top Tiling’);

   c.Top Tiling provided written notification to the Department that the applicant ceased employment with them effective 20 May 2016;

   d.on 25 July 2017, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on the basis that he failed to comply with condition 8107 of his Subclass 457 visa;

   e.on 31 July 2017, the applicant responded in writing to the NOICC indicating that a new nomination with JP Tiling Pty Ltd ATF YS Family Trust (‘JP Tiling’) for him was lodged on 29 August 2016 and refused and another nomination with JP Tiling and associated visa application was lodged on 13 July 2017 which are still pending with the Department;

   f.on 14 August 2017, the delegate cancelled the applicant’s Subclass 457 Business (Long Stay). The delegate noted that approximately 14 months had elapsed since the applicant held employment with Top Tiling and that cancellation of his visa would not impact the processing of his latest Subclass 457 application; and

   g.no consequential cancellation of any dependent visa holders arises in the present matter.   

4. On 14 August 2017, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with his application. On 3 August 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that 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 scheduled for 29 August 2018 at the Brisbane Registry (noting that his address as advised to the Tribunal in his application for review was located in Brisbane). On 10 August 2018, the then representative for the applicant returned the response to hearing invitation indicating that the applicant would attend the scheduled hearing in Brisbane.

5. On 21 August 2018, the then representative sent detailed written submissions to the Tribunal and requested its decision be deferred pending a decision by the Department on the outstanding nomination and visa applications linked to JP Tiling. The Tribunal Registry wrote to the then representative noting no request for adjournment had been made and the hearing would proceed as scheduled. On 22 August 2018, the applicant wrote to the Tribunal indicating that he had removed the then representative from his matter and appointed a new representative. He sought an adjournment. The Tribunal carefully considered this request for adjournment but did not grant it after consideration of the circumstances, including that detailed written submissions had been made. This decision was conveyed to the applicant on 23 August 2018.

6. On 27 August 2018 in the evening, two days prior to the scheduled hearing, the applicant formally appointed a new representative and made submissions that his former representative had provided incorrect advice. He also advised that as he now lives in Sydney he would like the hearing to be conducted there. It is worth pausing to reflect that this was the first notification to the Tribunal indicating the applicant was not living in Brisbane. Following careful consideration, the Tribunal declined to grant the adjournment but permitted the applicant and his new representative to attend the hearing by video conference in Sydney and advised they may discuss at hearing any further time they may need for post hearing submissions. On 28 August 2018, the new representative advised the Tribunal that she and the applicant would attend the scheduled review hearing on 29 August 2018 in Sydney. All pre-hearing submissions and evidence have been duly considered by the Tribunal.

7. On 29 August 2018, the applicant appeared before the Tribunal via video link from Sydney. He confirmed no other witnesses were providing evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant confirmed to the Tribunal that he understood the interpreter and was feeling well enough to give his evidence. The applicant’s newly appointed representative also attended the hearing in Sydney. Upon request, the Tribunal granted the applicant two weeks to provide any post-hearing submissions and evidence.

8. On 11 September 2018, the Tribunal received written submissions enclosing additional documentary evidence. Of note, the applicant provided a copy of the decision by the Department dated 3 September 2018 to refuse the outstanding nomination application by JP Tiling on the basis that the position associated with the nominated occupation is not genuine. The aforementioned post-hearing submissions and material have been duly considered by the Tribunal.

9. 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

10. 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) of the Act. 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.

    The review hearing

11. The Tribunal began the hearing by explaining its role and the purpose of the review hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded he had not complied with condition 8107 attached to his visa. The Tribunal outlined the condition requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained to the applicant that, if satisfied the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

12. The applicant gave oral evidence to the Tribunal which may be summarised as follows. He recently engaged a new representative having discharged the first. The applicant asserted his former representative made errors including responding to the NOICC one day out of time, failing to advise him of the reason his visa was cancelled and submitting an application for a new nomination 99 days after he had ceased work with Top Tiling instead of by the 90^th day. The applicant was observed by the Tribunal to be reading from notes as he provided the aforementioned oral evidence and when brought to his attention he ceased to do so. The applicant maintained that although he was ‘fully aware’ of the 90 day restriction attached to his Subclass 457 visa, he found a new sponsor within 90 days but his former representative lodged the new nomination application (with JP Tiling) on the 99^th day.

13. The applicant contended that the Department cancelled his visa because his new nomination by JP Tiling was lodged more than 90 days after he ceased work with Top Tiling. He blamed his former agent for not informing him of relevant conditions and for making delayed responses to the Department. When asked by the Tribunal why he had earlier advised he was aware of the 90 day time frame in the visa condition then sought to resile from this, the applicant confirmed to the Tribunal that he left his employment with Top Tiling Pty Ltd on 20 May 2016 and knew he had to apply for a visa within 90 days but his former representative lodged an application 9 days after this time. The Tribunal notes that it explained to the applicant at the commencement of the hearing the requirements of condition 8107, specifically that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

14. The applicant advised that he first came to Australia on 26 September 2011 holding a Working Holiday visa (Subclass 417) to ‘make money.’ Since that time he has only ever worked as a tiler. He held a second Working Holiday visa then obtained a Subclass 457 visa in 2012. He ceased work 2 years ago and now holds a Bridging Visa E with no permission to work. The applicant currently resides in Sydney and has done so for approximately 6 months. Prior to that he resided in Canberra for 3 months and before that he was living in Brisbane. He confirmed that he had not lived in Brisbane for approximately 9 months. When asked why he left Brisbane, the applicant advised that he had a ‘money problem’ so he went to live in Canberra for free with Mr Young Ho Park who is the owner of JP Tiling, the company seeking to sponsor the applicant for a fresh Subclass 457 visa. The applicant then went to live in Sydney because he had a best friend there with whom he could stay. The applicant told the Tribunal that he had not worked in Australia since 20 May 2016 because he had no permission to do so and that he relied upon savings and financial assistance from his parents to sustain himself. The applicant advised that he has a good relationship with his parents who live in South Korea.

15. The applicant obtained his employment with Top Tiling through a South Korean acquaintance. The business is run by Australian citizens of South Korean origin. The applicant worked as a tiler at Top Tiling from 2011 until 20 May 2016. This work was mostly conducted in Darwin. The applicant resigned from Top Tiling because he had a back complaint and his boss did not view this favourably. The applicant did not require medical assistance for his back. He initially advised that his back is now ‘perfect’, then changed tack to advise that he has a slipped disc but he has treated it with stretching and exercise. When asked by the Tribunal why he resigned from his employment with Top Tiling when he knew the purpose of his Subclass 457 visa was to work temporarily with them, the applicant advised that his back was in pain and he was disappointed with his boss’s response. The applicant then advised that he went back to work after hurting his back. He clarified that he did not injure his back at work but the injury was aggravated by work. The applicant then indicated he hurt his back prior to his departure from Top Tiling and was able to return to work in mid March 2016 as he was careful not to put pressure on his back.

16. The applicant confirmed that he has not worked for an approved sponsor in an approved occupation since 20 May 2016. When the Tribunal raised to his attention that this evidence might tend to suggest that he breached Condition 8107 by ceasing employment for a period exceeding 90 days, and that the ground for cancelling his visa exists, the applicant confirmed he did not go back to work, adding that one month before leaving that employment he had made up his mind to leave and found a new sponsor. The applicant blamed his former representative for lodging the new nomination and visa applications 9 days after the 90 day period. When asked by the Tribunal how he could work as a tiler with another employer given his back condition, the applicant advised that he thought he could overcome it and that tiling is all he can do.

17. The Tribunal raised with the applicant that submissions and documents provided by him indicate that JP Tiling lodged a nomination for him on 29 August 2016 which was refused on 6 December 2016 due to him not meeting the English language requirement. Further, another nomination with JP Tiling and an associated visa application were lodged on 13 July 2017 which are still pending with the Department. The applicant was invited to provide further particulars on these matters. He advised that when receiving advice on 25 July 2017 that his visa might be cancelled he thought it was in relation to the visa application lodged in July 2017. He blamed his former representative for not explaining the true situation. The applicant advised that he wants to remain in Australia permanently and wants to obtain a new Subclass 457 visa to assist him to apply for permanent residence on the basis of being a tiler.

18. When asked to outline his relationship with JP Tiling, the applicant explained that the owner, Mr Park, is around the same age as him. Mr Park also used to work at Top Tiling in Darwin and obtained permanent residence, following which he established JP Tiling. The applicant last spoke to Mr Park the week prior to the hearing. When asked where JP Tiling is located, the applicant initially advised it is in Canberra, then stated it was originally based in Brisbane, then indicated it moves around, finally settling on it being a Brisbane based company. When asked if he had signed an employment contract with JP Tiling, the applicant stated that he had not. He indicated he will not have a formal relationship with JP Tiling until he obtains a visa. When asked why he submitted a copy of an employment contract with JP Tiling to the Tribunal, the applicant blamed his former representative indicating he didn’t know he had signed such a document due to his limited English language ability. He then added that he forgot and it was a long time ago. The applicant indicated he is frustrated with the visa process and so didn’t fully remember. 

19. The Tribunal drew to the applicant’s attention that according to a letter from JP Tiling dated 20 August 2018, which he submitted, the business in located in Queensland. Further, the Tribunal raised with him that as he has been living in Sydney for 6 months that might tend to suggest he does not have a genuine intention to work with JP Tiling. The applicant responded that he went to live in Sydney to be with his best friend and that once granted the visa he would return to Brisbane to work with JP Tiling.     

20. The Tribunal drew to the applicant’s attention that according to the letter from JP Tiling dated 20 August 2018, they require his services urgently. The Tribunal raised that given approximately 13 months have elapsed since they lodged their most recent nomination on the applicant’s behalf, that might tend to suggest they do not require his services so urgently, inviting his comment. The applicant responded that Mr Park is frustrated with the delay and it is neither of their fault. When asked if he had made any other efforts to secure employment since he ceased work with Top Tiling, the applicant advised that one month before leaving that employment he had secured a nomination application from JP Tiling. He confirmed he had not approached any potential employers other than JP Tiling. The Tribunal raised with the applicant that by attempting only to pursue employment with JP Tiling when a previous nomination had been refused, that might tend to suggest he has not made reasonable efforts to obtain other employment, inviting his comment. The applicant responded that he didn’t think of approaching any other employers, blamed his prior representative for not advising him correctly of the English language requirements, and that due to his English language situation there was no point approaching others for work. When asked why he thought JP Tiling persisted in sponsoring him when he did not initially meet the English language requirement, the applicant advised that he subsequently passed the English language test and had established a personal rapport with Mr Park and that is why he was helped by him. The applicant characterised their relationship in the following manner, Mr Park probably thinks of him as a friend, but he thinks of Mr Park as a boss.

21. On several occasions, the applicant sought to blame his former representative for lodging documents late and not advising him correctly. It is worth pausing to reflect that the applicant only dispensed with the services of the former representative when the Tribunal initially declined to grant an adjournment of the scheduled hearing. Following questioning by the Tribunal, the applicant in due course confirmed that he understood Condition 8107 which was attached to his Subclass 457 visa. The applicant advised the Tribunal that he has never worked in Australia without the right to do so and has not failed to comply with visa requirements. It is worth pausing to reflect that on his account he has not worked in Australia since 20 May 2016 when he resigned from Top Tiling.

22. The Tribunal raised with the applicant the following matters and invited his comment. All of the visas he has held in Australia, including the Subclass 457 visa, are temporary visas. The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. There should be no expectation that the grant of a Subclass 457 visa would necessarily lead to permanent residency or an extended stay in Australia. The applicant’s Subclass 457 visa would have expired on 3 December 2017 if it was not cancelled and the Tribunal has no power to reinstate a visa that has ceased. The applicant responded that he applied for another visa with JP Tiling on 13 July 2017 and he hopes it can be granted.

23. The Tribunal raised with the applicant that given the Subclass 457 visa is a temporary work visa, its grant should not create an expectation of further stay, and he has not worked for an approved sponsor in an approved occupation since 20 May 2016, these matters might tend to suggest the Tribunal need not await the outcome of his latest nomination and visa applications and that his visa should be cancelled. The applicant responded that his dream is to obtain permanent residence in Australia by initially obtaining a Subclass 457 visa. He only knows how to work as a tiler and wants to pursue his dream utilising that employment. He is not a person who likes study so he must rely upon his tiling work. When asked by the Tribunal if there is any reason he cannot make an offshore application for another visa, such as another temporary work visa, he replied that he wants to stay in Australia and apply for any visa permitting him to work as a tiler. He added that he is angry about his visa situation and not happy with his former representative. The applicant again indicated to the Tribunal that he has not worked since departing Top Tiling on 20 May 2016.

1. When asked by the Tribunal if he had a compelling need to remain in Australia, the applicant replied that he did not. When the Tribunal raised with him that he appears to have gained skills and experience in the Australian work force which would make him more marketable in the South Korean job market, the applicant indicated that he doesn’t want to work elsewhere, only in Australia. When asked by the Tribunal if he will face any hardship if his visa is cancelled, the applicant replied that it would be very unfair because he wants to stay in Australia.

2. The Tribunal raised with the applicant that most temporary visas, including the Subclass 457 visa, require applicants to meet Public Interest Criterion (PIC) 4013 and 4014. However, given his circumstances, including that he obtained a Bridging Visa E shortly after his Subclass 457 visa was cancelled, it appeared that he is not likely to be subject to an exclusion period under PIC 4013 or 4014 if his visa is ultimately cancelled. The applicant replied that he is thankful of this and he wants to return to work immediately and remain in Australia.

3. The Tribunal raised with the applicant that if his visa is cancelled, and he does not hold a valid visa, he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make visa applications in Australia and he would be liable to removal from Australia, inviting his comment. He replied that he didn’t intend to remain in Australia unlawfully. The applicant added that he wants a visa so he can work again. When asked if there were any international obligations concerning his case, the applicant replied that there were not. He confirmed to the Tribunal that no other persons were linked to his visa. The applicant concluded his evidence by indicating that although he may have sounded inconsistent and confused, he managed to tell the Tribunal everything. He confirmed he did not suffer from any medical conditions. The applicant also confirmed he had no further evidence to provide to the Tribunal. The applicant’s representative requested time for further written submissions. She and the applicant both agreed 2 weeks was sufficient time for this purpose.

4. The Tribunal notes that it had the benefit of observing the applicant provide his oral evidence. It observed him to deliver large portions of his oral evidence in a vague and inconsistent fashion, with his demeanour defensive and evasive at times. For example, his oral evidence concerning his back complaint and return to work, the location of JP Tiling, the signing of the employment contract with JP Tiling, his understanding of condition 8107 and his refrain from working since 20 May 2016, displayed the aforementioned characteristics. Following careful consideration, due to these matters, the Tribunal developed concerns with the applicant’s credibility.   

   Material received following the review hearing

5. On 11 September 2018, the Tribunal received post-hearing material including, but not limited to, written submissions by way of a Statutory Declaration of the applicant, correspondence from the Department and email records relating to the former representative. All post-hearing material has been duly considered by the Tribunal. Of note, the applicant submitted a copy of the recent (post-hearing) decision by the Department dated 3 September 2018 to refuse the outstanding nomination application by JP Tiling on the basis that the position associated with the nominated occupation is not genuine. The Tribunal also notes that according to his Statutory Declaration, the applicant wishes to remain in Australia to pursue other visa options, possibly a Student visa, in order to position himself for “…another skill visa…” if he can obtain appropriate English language test results.   

6. The applicant’s post-hearing submission also maintains the contention that he was poorly advised by his former representative and this led him to be denied nominations, associated visa applications and a meaningful chance to respond to the current visa cancellation. For example, the applicant writes at page two of his Statutory Declaration that he “…was not aware of my visa condition 8107…” due to allegedly receiving poor advice from the former representative. This is to be contrasted with his admission in oral evidence during the review hearing that he was “fully aware” of that visa condition. Following careful consideration, the Tribunal prefers the spontaneous oral evidence of the applicant indicating he was aware of Condition 8107 to the ex-post facto attempt in post-hearing written submissions to suggest otherwise. The aforementioned inconsistency buttresses the previously outlined concerns of the Tribunal with respect to the applicant’s credibility.     

   Does the ground for cancellation exist?

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. Condition 8107(3)(b) provides that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant's visa, which was granted on 3 December 2013 and which, but for its cancellation, was valid until 3 December 2017.

8. Following careful consideration of the evidence, the Tribunal finds that the applicant ceased employment with the sponsoring business, Top Tiling, on 20 May 2016. Additionally, the Tribunal finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. The Tribunal therefore finds that the applicant did not comply with condition 8107(3)(b) attached to his Subclass 457 visa. The contentions of the applicant with regard to his former representative lodging his new nomination and visa application nine days later than he instructed do not alter the aforementioned circumstances.

9. 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 power to cancel the visa should be exercised.

   Consideration of discretion

10. 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’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

11. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

12. The applicant’s background has been detailed above. He held a series of temporary visas prior to the grant of the temporary Subclass 457 visa on 3 December 2013. The Tribunal considers that the purpose of the applicant’s stay in Australia holding a Subclass 457 visa is to work for an approved business sponsor in the approved nominated occupation of Wall and Floor Tiler (ANZSCO 333411). He resigned his employment with Top Tiling on 20 May 2016 and on his own evidence has not worked in Australia since that time. The applicant’s Subclass 457 visa would have expired on 3 December 2017 had it not been cancelled earlier on 14 August 2017.

13. The Tribunal considers it a matter of significance that the applicant has not yet obtained a current approved nomination. As previously outlined, according to material submitted by the applicant, on 3 September 2018 the Department refused the outstanding nomination lodged on 13 July 2017 in respect of JP Tiling on the basis that the position associated with the nominated occupation is not genuine. Further, the Tribunal notes the admission of the applicant in oral evidence that he has not attempt to secure a nomination with any other employer and that he doggedly maintained he has not worked in Australia since resigning from Top Tiling on 20 May 2016.

14. The Tribunal considers that the applicant has had a lengthy period of time in which to seek alternate employment opportunities and become the subject of an approved nomination by an approved sponsor, he could pursue other visa options offshore, he has not worked for an approved sponsor with an approved nomination for a significant period of time, his Subclass 457 visa would already have expired if it were not cancelled and it is inconsistent with the purpose of the Subclass 457 visa to allow him to remain in Australia pending the pursuit of other (as yet unconfirmed) visa options. Following careful consideration, the Tribunal considers that the purpose of the applicant’s stay in Australia is no longer extant given the aforementioned matters. Accordingly, the Tribunal finds that this factor weighs strongly in favour of cancelling the applicant’s visa.

15. As previously outlined, the Tribunal has found that the applicant breached condition 8107(3)(b) of his visa as the period during which he ceased employment with Top Tiling exceeded 90 days. The Tribunal notes the applicant’s Bridging Visa E has the ‘no work’ condition 8101 attached and it is prepared to accept the applicant’s evidence that he has not worked in Australia since 20 May 2016. Accordingly, there is no evidence before the Tribunal that the applicant has failed to comply with visa conditions other than 8107. Following careful consideration, the Tribunal finds that the extent of the applicant’s compliance with visa conditions weighs moderately in favour of cancelling his visa given the centrality of compliance with condition 8107 to the purpose of the grant of the Subclass 457 visa.

16. Regarding the applicant’s past and present conduct towards the Department, there is no evidence before the Tribunal to suggest that he has not been cooperative in his dealings with them. The Tribunal finds that this circumstance weighs moderately against cancelling his visa. For completeness, the Tribunal notes that there would be no consequential visa cancellations pursuant to s.140 of the Act and that this circumstance weighs neither in favour nor against cancelling his visa.

17. The Tribunal has also had regard to the circumstances of the visa cancellation. The ground for cancellation arose when the period during which the applicant ceased employment with Top Tiling exceeded 90 days. The Tribunal notes that the applicant confirmed he resigned from Top Tiling on 20 May 2016. Whilst citing issues with his back, the applicant did not seek medical treatment for that condition and gave vague and evasive evidence regarding it and his return to work. Further, for reasons previously outlined, the Tribunal does not accept that the applicant was unaware of Condition 8107 attached to his Subclass 457 visa. Additionally, due to the credibility concerns identified, the Tribunal does not accept that the applicant was misled by his former representative to the degree he has contended. On balance, the Tribunal finds that the applicant voluntarily ceased employment with Top Tiling in order to pursue employment with Mr Park at JP Tiling. Accordingly, the ground for cancellation did not arise due to circumstances beyond the applicant’s control. The Tribunal finds that the circumstances in which the ground for visa cancellation arose weigh moderately in favour of cancelling the applicant’s visa given the voluntary nature of his cessation of employment.

18. The Tribunal has also considered the hardship that may be experienced if the applicant’s visa is cancelled. The Tribunal notes the applicant gave oral evidence that he does not have a compelling need to remain in Australia. Further, he has developed valuable skills and experience which would make him more marketable in the South Korean job market. His oral evidence is that his family in South Korea has supported him financially and that he has a good relationship with them. The Tribunal notes the applicant’s preference is to remain working as a tiler in Australia and that he views it as unfair for his visa to be cancelled. The Tribunal also notes that the applicant is unhappy with the services of his former representative, although it does not accept he was unaware of the requirements of condition 8107 given that during his oral evidence he conceded that he did understand the condition, nor does it accept he was misled by his former representative to the degree he has contended as previously noted. Following careful consideration, the Tribunal finds that a minimal degree of hardship would be experienced by the applicant if his visa is cancelled and this weighs slightly against cancelling his visa.

19. Regarding the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant does not hold a valid visa he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make visa applications in Australia and he would be liable to removal from Australia. However, the Tribunal also notes that it is unlikely the applicant will be affected by the three year exclusion period in PIC 4013 and 4014 if he applies for a temporary visa offshore as previously outlined. On balance, the Tribunal affords limited weight in favour of cancelling the applicant’s visa regarding the mandatory legal consequences of cancellation as they are the intended consequences of legislation. In relation to the consideration of Australia’s international obligations, there is no evidence before the Tribunal that any such obligations would be breached as a result of the visa cancellation. This circumstance weighs neither in favour nor against cancelling the visa. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there is any other circumstance weighing against cancellation of the applicant’s visa.    

    CONCLUSION

20. The Tribunal has carefully reflected upon the factors both against, and in favour of, cancelling the applicant’s Subclass 457 visa. As outlined above, the Tribunal notes that some factors weigh against cancellation of the visa. These factors must be carefully balanced with those in favour of the visa cancellation. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

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

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    K. Chapman
    Member