Fan (Migration)

[2021] AATA 3336

Fan (Migration) [2021] AATA 3336 (3 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ho Sang Fan           
Ms Hsin-Ying Lu

CASE NUMBER:  2015591

HOME AFFAIRS REFERENCE(S):          BCC2019/6807657

MEMBER:Amanda Upton

DATE:3 September 2021

PLACE OF DECISION:  Melbourne

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 3 September 2021 at 12:22pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – discretion to cancel visa – transition to new position in associated business disrupted by COVID-19 restrictions – now working in new position – new nomination application refused because applicant’s visa already cancelled – applicant’s value to business – length of absence from home country and impact of COVID-19 there – consequent cancellation of second applicant’s visa – decision under review set aside for first applicant, no jurisdiction for second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (3), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1429
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Rani v MIMA (1997) 80 FCR 379
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sakhno v MIAC [2007] FMCA 1492
Tien v MIMA (1998) 89 FCR 80
Visnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 October 2020 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 had breached condition 8107(3)(b) as he had ceased working for his sponsoring employer on 8 December 2019 and had not returned to work for that employer for more than 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 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 appeared before the Tribunal on 6 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Boyali, the owner of Impressive Dumplings Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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

8. 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. In this instance condition 8107 attached to the applicant’s visa. At 8107(3)(b) this condition requires that the visa holder must not cease employment for a period exceeding 60 consecutive days.

9. The applicant confirmed to the Tribunal that he accepted that he had not been employed for a period of time that exceeded 60 days. He confirmed that he ceased employment with Kung Fu Kitchen on the specified date.

10. There is nothing in the evidence that the applicant gave to the Tribunal that is inconsistent with the existence of grounds for cancellation.

11. The Tribunal finds that the applicant ceased the relevant employment for a period exceeding 60 consecutive days and had breached condition 8107 that attached to his visa.

12. 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

13. 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’.

14. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant. ^[2]

    [1]    See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].

15. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

16. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8107, to which his visa was subject, prescribes in 8107(3) (b)hat, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

17. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

18. The applicant obtained his subclass 457 visa on 7 September 2018, it expires on 8 July 2025. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was Kung Fu Kitchen (Payroll) Pty Ltd. The applicant ceased employment with the company on 8 December 2019.

19. The Tribunal notes that on 10 June 2021 a subclass 482 nomination was lodged by Impressive Dumplings with respect to the applicant. This business is an associated business to Kung Fu Kitchen as detailed below.

20. The applicant has been employed by Impressive dumplings since 17 May 2020 and payslips were provided to the Tribunal confirming this fact. He accepted at the hearing that this was not a nominated position however as noted above a nomination has now been lodged for this position.  

    The purpose of the applicant’s travel and stay in Australia.

21. The applicant came to Australia on a working holiday visa in March 2012. He travelled and explored Australia and then settled and worked as a chef at Kung Fu Kitchen in Perth. He worked in this business from October 2013 to April 2014. After this time, the applicant returned to Hong Kong and continued to work as chef in Commis III/II, Four Seasons Hotel Caprice. He worked there from Jan 2015 to March 2017. In September 2017, the applicant returned to Australia as a student and commenced working at Kung Fu Kitchen as a part-time chef whilst he was completing his study.

22. The applicant decided to devote his future career as a chef in Kung Fu Kitchen in Australia and so lodged a Temporary Work (Skilled) visa subclass 457 application on 22 February 2018 This visa was granted on 7 September 2018.

23. The applicant provided the Tribunal with payslips from Kung Fu Kitchen 10/12/2017-23/12/2017 confirming this employment,

    ·Payslip from Kung Fu Kitchen 09/12/2018-22/12/2018,

    ·Payslip from Kung Fu Kitchen 24/11/2019-07/12/2019,

24. The Tribunal considers that the applicant’s purpose of travel and stay in Australia continues to be to work as a chef consistent with his original intention at the time of the grant of his subclass 457 visa.

    The extent of compliance with visa conditions

25. The Tribunal considers that on the face of it, non-compliance with the visa condition appears to be significant given the time that the applicant has not had a nominated position. The Tribunal considers however, the circumstances as to how this occurred, detailed below and concludes that these circumstances render the non-compliance significantly less serious than it appears on the face.          

    
    
    

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

26. The applicant told the Tribunal that he had not really considered the degree of hardship to him as he was surprised by the cancellation. He stated that he does not have any savings, his career has been in Australia.

27. The applicant’s partner has been working but was made redundant during the first lockdown, she has not been working since then which has been difficult for them. The applicant considers that it will be very hard to go back to Hong Kong as they have been in Australia for 10 years. He is of the view that it would be difficult to find employment as they are both over 30 and COVID has also had a significant impact in Hong Kong. The applicant has now effectively been with the same business for 10 years.

28. The applicant and his employer told the Tribunal that the business would be impacted if he was to have to go back to China as they are reliant on him for his skills and recipes.

29. The Tribunal accepts generally, that the cancellation of a visa results in opportunities lost and disappointment. It also accepts that there is potentially a financial loss for the applicant. The Tribunal considers that it is expected that there will be consequences to a visa cancellation, and these are such consequences. Whilst accepting that such things do constitute hardship in some sense, the Tribunal therefore gives a small amount, although minimal weight to these considerations raised by the applicant in favour of not cancelling the visa.

    Circumstances in which ground of cancellation arose.

30. The issue with the applicant’s employment status was in effect caused by the business for which he was working, Kung Fu Kitchens being changed to become a different legal entity , Mr Boyali gave evidence to the Tribunal that he was the owner of both businesses and that they were in effect one and the same. He had decided to open a restaurant in Brisbane and wanted the applicant to work for him in that business hence the change in employment. This however happened right at the time that COVID began to impact Australia generally and this caused problems with a smooth transition to the new restaurant operating as there were restrictions on trading that caused concern about viability.

31. In effect, the applicant moved to other employment, effectively with the same company although the structure had changed and therefore it became a different legal entity. This required a new nomination to be lodged.

32. In February the new business started to get quiet and in March there was a lockdown Mr Boyali was not sure that the business would survive and this is why the nomination was not applied for in time. In April the business picked up and so a nomination was submitted. It was at this time that the applicant also received notice of the visa cancellation and the nomination was refused. It was communicated by the Department that the nomination was refused because the applicant’s subclass 457 visa had already been cancelled.

33. The applicant told the Tribunal that he understood that he was in breach at the time and apologised for it. He told the Tribunal that he had now been with the business for a long period of time and wanted to continue to work for Mr Boyali. Mr Boyali gave very convincing and compelling evidence as to the value of the applicant to his business and his genuine desire to have the applicant continue to work with him. He stated that he valued the applicant’s experience and has opened a further restaurant with a plan for more. He would like the applicant to be part of his business as it grows and considers him to be an integral part of it. The Tribunal found the evidence of both the applicant and Mr Boyali to be genuine and credible.

34. The business, Impressive Dumplings was approved as a Standard Business Sponsor in April 2020.

    Past and present behaviour of the applicant towards the Department.

35. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

    Whether there would be consequential cancellations under s.140

36. The applicant has a partner whose visa is subject to consequential cancellation under s.140.

37. The Tribunal notes the hardship that may be experienced by the consequential cancellation both to the applicant and his partner and gives this consideration a small amount of weight in favour of not cancelling the visa.

    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.

38. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case, he can depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

39. The Tribunal notes that it may be difficult for the applicant to leave the country in the current situation however also notes that the Australian Government has put in place several contingency options for visa holders who find themselves in Australia with limited options for returning home.

    Whether any international obligations including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation.

40. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations.  These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR).

41. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Accordingly, the Tribunal does not give this consideration any weight to these considerations, either in favour of or against cancellation of the visa.

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

42. As the applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration, either in favour of or against cancellation of the visa.

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

    DECISION

44. 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.

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

    Amanda Upton           
    Member