Foo (Migration)

[2020] AATA 148

Foo (Migration) [2020] AATA 148 (28 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kok Yee Foo
Ms Siew Yin Chong
Miss Kelly Foo
Miss Iren Foo

CASE NUMBER:  1920842

HOME AFFAIRS REFERENCE(S):          BCC2019/1575262

MEMBER:Jennifer Cripps Watts

DATE:28 January 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

Statement made on 28 January 2020 at 5:30pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – non-appearance before the Tribunal – ground for cancellation – ceased employment with sponsor – consideration of discretion – significant period of non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 July 2019 made by a delegate of the Minister for Home Affairs (the delegate) 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 primary applicant (the applicant) did not comply with a condition of the Subclass 457 visa he was granted on 16 December 2016, condition 8107(3)(b) of Schedule 8 to the Regulations, because he ceased employment for more than 60 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 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 applicant’s visa.  As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second, third and fourth named applicants.

4. The applicant’s visa was cancelled and he was notified on 26 July 2019.  On 30 July 2019, the applicant applied for merits review and provided the Tribunal with a copy of the delegate’s decision.  The Tribunal received an FOI request by email from the applicant on 17 December 2019, requesting specifically copies of AAT decision notification, AAT decision record, AAT application acknowledgment letter and AAT application record.  The next day, the Tribunal responded by return asking for clarification, which was detailed in the email sent to him.  The applicant phoned the Tribunal on 19 December 2019 because he said, a. He was concerned as to his visa status and wanted to confirm he had a bridging visa; b. His migration agent had not been in touch with him and he wanted to change the authorised recipient; and c. He wanted to know if his review was still active.  It is noted in the Tribunal system, by a case officer, that before the call ended the applicant was asked and confirmed he did not need anything further.  The applicant was advised to email the Tribunal to confirm the change of recipient and withdrawal of the migration agent in writing.  The Tribunal has had no further communication from the applicant since 19 December 2019.    

5. On 20 and 24 January 2020, SMS hearing reminders were sent to the mobile phone number the applicant provided for himself with the review application and which he has not informed the Tribunal has changed.  Delivery failed.

6. As the applicant had not communicated with the Tribunal since the hearing invitation was sent, on Friday 24 January 2020, and his hearing reminders failed, to remind the applicant of his scheduled hearing, the member requested that a case officer call the applicant.  The call was not answered and a message left.  On Friday 24 January 2020 courtesy copy of the hearing invitation was sent to the applicant at his personal email address that was provided in the review application.

7. The applicant’s authorised recipient is a registered migration agent, Mr Adam Yao Guo Chen, Migration Agent Registration Number 0319217.

8. With the written Tribunal hearing invitation, a document entitled ‘Information about hearings – MR Division’ was attached.  It includes information about who the applicant can bring to the hearing with them, what happens on the day of the hearing and, importantly and relevantly, what an applicant should do if they are not able to attend the scheduled hearing.  In both the hearing invitation, and in this attached document that, it is explained that if an applicant does not attend a schedule hearing, the Tribunal may, among other things, make a decision on the review without taking any further action to allow or enable them to appear.

9. The applicant did not attend the scheduled hearing and provided no reason for the non-attendance. The Tribunal received no request for a hearing postponement.  Neither the applicant, nor Mr Chen, responded to the hearing invitation that was sent.  In the hearing invitation, the applicant was informed that a Cantonese interpreter would be available at the hearing and he was invited to provide the Tribunal with additional documents or information prior to the scheduled hearing.  No additional documents or information has been received.

10. The hearing was scheduled as a video hearing, from Canberra (with the member sitting in Sydney), at 10:30am on 28 January 2020.  At 10:30am, a hearing officer informed the member that the applicant had not attended his hearing in Canberra.  The member instructed that the applicant be given another half hour in case he was running late.  At 11:00am, the hearing officer informed the member that the applicant had still not appeared for his hearing and the hearing officer was instructed to record the matter as a ‘no-show’. 

11. 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

12. 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), where a visa holder has not complied with a condition of the visa. 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.

13. The Tribunal has considered relevant information, including on both the Department and Tribunal files, in reaching its decision.

    Does the ground for cancellation exist?

14. 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 8107(3)(b) attached to the applicant’s visa. This condition requires that:

    ‘if the holder ceases employment – the period during which the older ceases employment must not exceed 60 consecutive days’

15. The applicant was granted the Subclass 457 visa, in the occupation of Café or Restaurant Manager - Australian and New Zealand Standard Classification of Occupations (ANZSCO) 141111, on the basis of a nomination that was approved on 24 November 2016 for Public Enterprise Pty Ltd (the sponsor).  The applicant provided the Tribunal with a copy of the delegate’s decision, which includes that they received written notification from the sponsor, aka Sambal Kampung Restaurant, advising that the applicant ceased employment with them on 9 June 2017. 

16. On 6 June 2019, the Department received notification from Mr Chen that he had been appointed to act on behalf of the applicant.  On 7 June 2019, the Department sent the applicant, through Mr Chen, a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa granted on 16 December 2016, putting the applicant on notice that it appeared he had been non-compliant with condition 8107(3)(b).  He was invited to respond and say whether he agreed, or not, with the ground for cancellation, within five (5) working days.  No response was received and the applicant was notified his visa had been cancelled on 26 July 2019.  On 30 July 2019, he applied to the Tribunal for merits review.

17. On the evidence, the Tribunal is satisfied that the applicant ceased employment with the sponsor no later than 9 June 2017 and that he has not complied with condition 8107(3)(b).

18. 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

19. 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’.  Relevant or material information the Tribunal has relied on in making its decision has been weighed in the applicant’s favour where appropriate.  Matters that are unfavourable to the applicant have not been weighed because the ground for cancellation has already been made out.

    Purpose of the applicant’s travel and stay in Australia and need to remain in Australia

20. The applicant’s Subclass 457 visa that is the subject of this review was granted on 16 December 2016 for him to work for the sponsor.

21. Evidence before the Tribunal indicates that no later than 9 June 2017 the applicant ceased working for the sponsor for a period exceeding 60 days.  No evidence has been provided that the applicant obtained a new nomination or returned to work with the sponsor under the original nomination, working in the same nominated occupation.

22. The Tribunal is satisfied, on the evidence, that the applicant is no longer staying in Australia, since about mid-2017, for the purpose for which the visa was granted.  The applicant has made no claim, nor provided any evidence, that he has a need to remain in Australia.

    Extent of compliance with visa conditions

23. The Tribunal is satisfied that the applicant has not been working for the sponsor, or any other approved, relating to his Subclass 457 visa, since at least 9 June 2017.  Having ceased employment from that date, he was required, to be compliant with condition 8107(3)(b), to recommence work in the same nominated occupation with an approved sponsor within 60 days.  He has been given opportunities by both the Department and Tribunal to provide information favourable to his case and has not provided any information that he is not in breach of condition 8107(3)(b). 

24. It is acknowledged that the applicant has had a review application, this one, on foot since July 2019.  However, more than two and a half years has passed since the applicant ceased work for the sponsor in mid-2017.

25. A Subclass 457 visa holder is granted the visa for the purpose of working in the nominated occupation.  Essentially, this requires that they must work for a standard business sponsor with an approved nomination, and in the nominated occupation.  Evidence before the Tribunal indicates that the applicant has done neither of these things since mid-2017.

26. The Tribunal considers this to be very significant non-compliance, as working for a standard business sponsor with an approved nomination is effectively essential to the purpose for which the visa was granted. 

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

27. The applicant was invited to respond to the Department’s NOICC with reasons why his visa should not be cancelled, but provided no response or information.  The applicant provided a copy of the delegate’s decision when he lodged the review application and the Tribunal considers it reasonable to think the applicant was aware of the reasons given in the delegate’s decision about why he was found to have breached condition 8107(3)(b) and the matters the delegate considered in deciding not to exercise discretion not to cancel the visa.  It was mentioned in the delegate’s decision that an NOICC was sent to the applicant, through his authorised recipient Mr Chen, on 7 June 2019, which put the applicant on notice that he was non-compliant with a condition of his visa which could result in cancellation.  As mentioned earlier, the applicant did not put forward any reasons why his visa should not be cancelled when he was invited to do so.

28. It has now been more than two and a half years since the applicant, when he held a Subclass 457 visa, ceased working in the nominated occupation for a standard business sponsor with an approved nomination relating to him. 

29. Starting from when the NOICC was sent to the applicant on 7 June 2019, he has been invited to comment on whether he agreed that grounds for cancellation existed, he has been invited to attend a hearing at the Tribunal to give oral evidence and present arguments and also to provide any additional documentary information.  He provided no additional information to the Department or the Tribunal.     

30. The Tribunal considers it reasonable that while holding a visa, a visa holder should be aware of and compliant with the conditions attached to the visa which, in this case, included condition 8107(3)(b) relating to the applicant’s Subclass 457 visa.  The Tribunal, having accepted that the applicant ceased working for the sponsor no later than 9 June 2017, considers that he has more than ample time to regularise his visa status, which would include taking steps to address or mitigate against any hardship he may experience as a result of cancellation, which may include having to depart Australia.  The Subclass 457 visa is a temporary visa and, as such, it is always a possibility that departing Australia will be required, because the visa is temporary and not permanent.

31. The applicant has provided no evidence to the Department or the Tribunal claiming he will suffer any financial, emotional or psychological hardship as a result of the cancellation of his visa.  Nevertheless, the Tribunal accepts that it is likely that anyone in the applicant’s situation, including the applicant, may suffer at least some level of hardship as a result of cancellation.  However, for the reasons given, the applicant has been aware for some years that he may be required to depart Australia simply because, up until the time of cancellation, he was a temporary visa holder and since then he has held a bridging visa pending Tribunal review of the cancellation decision.

    Circumstances in which the cancellation arose

32. The ground for cancellation arose because, no later 9 June 2017, the applicant ceased employment with the sponsor and he did not recommence employment, within 60 days, with the sponsor or any other standard business sponsor with an approved nomination for him relating to his Subclass 457 visa.

33. Despite being invited to provide a response to the NOICC sent by the Department on 7 June 2019, the applicant did not respond with reasons why his visa should not be cancelled, or at all.  He was invited to a Tribunal hearing to give oral evidence and present arguments and did not attend the hearing, nor did he provide any additional documents or information favourable to his case.

34. There is no evidence before the Tribunal that the applicant is the subject of an approved nomination relating to his Subclass 457 visa that was granted in December 2016.

    Past and present behaviour towards the Department

35. There is no information or evidence before the Tribunal to suggest that the applicant has been unco-operative with the Department, other than his non-response to the NOICC sent in June 2019.  It is noted, however, that the period from when the applicant ceased work for the sponsor up until the NOICC was sent, a period of about two years, the delegate states that the applicant made no contact with the Department to advise of his changed circumstances or to resolve his visa status, which the Tribunal considers to be a very significant period of time, during which the applicant was aware his circumstances had changed.

    Whether there would be consequential cancellations under s.140

36. The applicant has three dependants – the second, third and fourth named visa applicants - who made a combined application for the Subclass 457 visa and were granted the visa as secondary applicants; his spouse born in 1961 and two children, born in 1996 and 2005.

37. As a result of cancellation of the applicant’s Subclass 457 visa that is the subject of this review, the secondary applicants’ visas would also be cancelled under s.140 of the Act.  There is no information before the Tribunal, and the applicant has made no claim, that the family would be separated as a result of cancellation. 

    Mandatory legal consequences

38. Cancellation of the Subclass 457 visa will have the result that the applicant will become an unlawful non-citizen.  The applicant would have limited options to apply for further visa in Australia and may be required to depart Australia.  He may be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart if required to do so. 

    International obligations, including non-refoulement and best interests of children

39. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

40. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

41. The applicant has made no claim, and provided no information to the Tribunal that there is, or that he fears, a risk of harm to him or his family if they have to return to his home country, or that it would not be in the best interests of the children to return to their home country as a result of cancellation.  The Tribunal is satisfied, in the circumstances of this case, that cancellation would not lead to removal in breach of non-refoulement obligations.  There is no information before the Tribunal that suggests the applicant would not be able to apply for or be granted a Subclass 866 Protection Visa. 

    Other relevant matters

42. No other relevant matters have been raised by the applicant and the Tribunal is unaware of any.

43. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should be cancelled.

    DECISION

44. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Jennifer Cripps Watts
    Member