Gu (Migration)

[2019] AATA 6303

Gu (Migration) [2019] AATA 6303 (16 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zongling Gu
Ms Pingli Liu

CASE NUMBER:  1906430

HOME AFFAIRS REFERENCE(S):          BCC2017/4186509

MEMBER:Bridget Cullen

DATE:16 September 2019

PLACE OF DECISION:  Brisbane

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 second named applicant.

Statement made on 16 September 2019 at 12:05pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – Restaurant Manager – applicant had ceased employment with the sponsor– applicant failed to comply with condition 8107– no approved nomination – no compelling need to remain in Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116,140, 348, 359,
Migration Regulations 1994, cl 457.223

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 12 March 2019 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 failed to comply with visa condition 8107(3)(b) of his Subclass 457 visa. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 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. 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 applicant appeared before the Tribunal on 12 September 2019 to give evidence and present arguments, via telephone. The hearing was conducted jointly, along with the related review of the applicant’s proposed nominator, and current employer, Auspac Hospitality Management Pty Ltd (“Auspac”).

5. The Tribunal record reflects that Ms Li Qin, of AMS Brisbane Pty Ltd, is the registered migration agent acting for both the applicant and Auspac.  Ms Qin appeared in person at the hearing, to assist the applicant. Ms Qin filed submissions and further information on the applicant’s behalf, near midnight on the evening prior to the hearing.  The Tribunal reminded Ms Qin that it expects that representatives appearing before the Tribunal comply with the Practice Direction, for the Management of Migration and Refugee Matters.  The Direction requires that material that was not available at an earlier juncture, to be filed no later than seven days before any scheduling hearing.

6. Ms Qin explained that she had been busy, had difficulty with staff, and that she had “lots of deadlines from the Department and the Tribunal”.  The Tribunal notes the practical difficulties created for it when representatives file material at midnight, the night before a 10.00 am hearing, in the Tribunal having the opportunity to read and consider the material filed in advance of the hearing. 

7. The Tribunal confirms that it has read and carefully considered the material filed by the applicant in the Tribunal, as well as the information contained in the Departmental file. 

8. The applicant was assisted by a NAATI Level 3 interpreter, proficient in the English and Mandarin languages.  The applicant confirmed with the Tribunal that he understood the Tribunal’s questions, and the interpretation, at the conclusion of the hearing.

9. As Auspac did not attend the hearing, or apply for an adjournment, following Auspac’s non-appearance, on 12 September 2019, the Tribunal affirmed the decision to refuse the nomination, on the material before it.

10. 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

11. 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). In this instance, condition 8107 attached to the applicant's visa. Specifically, subclause 8107(3) applies because the Department granted the applicant a subclass 457 visa on the basis that the applicant met the requirements of subclause 457.223(4).

12. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The visa would have naturally expired on 24 June 2020.

13. 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.

    Notification procedures

14. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled. In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

15. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.

16. On 29 January 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation ('the notice') noting that departmental records indicated that he had ceased working for the employer, effective from 26 April 2017. As a result, the Department informed the applicant in the relevant notice that his Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because he may have breached condition 8107. The notice invited the applicant to comment on why his visa should not be cancelled, and he responded to this invitation on 31 January 2018.

17. Accordingly, the Tribunal finds that the applicant was given notice of the Department's intention to consider cancellation of his Subclass 457 visa as required under the legislation.

    Does the ground for cancellation exist?

18. Departmental records show that on 24 June 2016 a delegate of the Minister for Immigration approved a nomination by Golden Vision Food and Beverage Services Pty Ltd to sponsor the applicant for a Subclass 457 visa.

19. Departmental records indicate that the applicant ceased work with Golden Vision Food and Beverages Services Pty Ltd on 26 April 2017.  The reason for the ending of the applicant’s appointment was that Worrells Solvency and Forensic Accountants were appointed as the liquidators of Golden Vision Food and Beverages Services Pty Ltd on that date.

20. The applicant explained, in his written submissions and at the hearing, that the reason he breached condition 8107 is that there was a change to the company, and he was “not transferred to the new company”.  From the applicant’s perspective, there has been no change to his employer – he has worked at the Fire and Stone restaurant since 28 April 2014, in the position of restaurant manager.

21. On 15 March 2017, the Fire and Stone restaurant that had been operated by Golden Vision Food and Beverages Service Pty Ltd was sold to new owners – Auspac Hospitality Management Pty Ltd. On 30 January 2018, Auspac Hospitality Management Pty Ltd lodged a nomination, seeking to nominate the applicant in the position of restaurant manager. As discussed in paragraph 9, above, the Tribunal has affirmed the Department’s refusal of the nomination following Auspac Hospitality’s non-appearance in the Tribunal.

22. The applicant had pinned his hopes on the Tribunal approving the nomination that Auspac Hospitality Management Pty Ltd had lodged, and which was being reviewed along with the review of his visa cancellation. The Tribunal, adopting the procedure set out in s.359AA of the Act, put information to the applicant that it considered might result in the Tribunal not approving the nomination. That information was a Media Release issued by the Office of the Australian Government Fair Work Ombudsman, dated 18 December 2018, reflecting that (in part):

    “The former manager of a Queensland resort restaurant is facing Court again, with the Fair Work Ombudsman alleging he has continued to be involved in underpaying young overseas workers.

    Facing the Federal Circuit Court is Jia Ning Wang, former manager of the Fire and Stone Restaurant on Moreton Island, located at the Tangalooma Island Resort. Also facing Court is the company that owns the restaurant, Auspac Hospitality Management Pty Ltd.

    The Fair Work Ombudsman alleges Mr Wang and Auspac underpaid nine employees - mostly young overseas workers - at the Fire and Stone Restaurant last year.”

23. Following an adjournment to allow the applicant to confer with his representative, the applicant told the Tribunal that he was unaware of the allegations that had been made against his proposed nominator, Auspac Hospitality Management Pty Ltd.

24. The Tribunal finds that the applicant’s last approved nomination was with Golden Vision Food and Beverages Pty Ltd, and that the applicant has not worked for the sponsor since 26 April 2017. 

25. As such, 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. The circumstances that gave rise to the cancellation as put forward by the applicant are considered below.

    Consideration of discretion

26. 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'.

27. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. 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.

28. 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 and the oral evidence from the applicant at the hearing.

29. The policy outlines that the following matters should be taken into account, if relevant, when deciding whether to cancel a visa.

    The purpose of the visa holder's travel to and stay in Australia

30. At the hearing, the applicant gave evidence that he first arrived in Australia in December 2011, on a 457 visa.  Although he has changes sponsors at a few points, he has worked in the restaurant industry since his arrival, always on a 457 visa.  He has been living in Australia since that time.

31. Although the applicant's wife had come with him to Australia, she returned to China with their young child some time ago. 

32. The applicant was issued a Subclass 457 visa on 24 June 2016, to enable him to remain in Australia and work for his sponsoring employer, Golden Vision Food and Beverages Pty Ltd, as a restaurant manager. The applicant's wife is included as a dependant on his Subclass 457 visa.

33. The applicant gave evidence that he had been working in the same restaurant, Fire and Stone, despite the changes in ownership since 2014.  The Tribunal has affirmed the decision made by the applicant’s prospective sponsor, Auspac Hospitality Management Pty Ltd, following non-appearance by it at the hearing.

34. Although the applicant’s representative submits that the applicant would like to obtain a Subclass 482 visa, the Tribunal notes that this is a review of a Subclass 457 visa cancellation.  The Tribunal notes that it is no longer possible for the applicant to secure a sponsor under the Subclass 457 scheme.

35. As a result, the Tribunal finds that the applicant does not have another Australian employer willing or able to sponsor him under the Subclass 457 visa scheme. Accordingly, given this and the fact that the applicant ceased his employment with Golden Vision Food and Beverages Pty Ltd in mid-2017, the Tribunal finds that the purpose for the grant of the Subclass 457 visa to the applicant no longer exists.

36. While the applicant outlined his desire to remain in Australia, he did not outline any compelling need to remain in Australia.

37. The Tribunal finds that this factor does not weigh against exercising the discretion to cancel the Subclass 457 visa.

    The extent of compliance with visa conditions and the visa holder's past and present behaviour towards the Department

38. The Tribunal accepts that the applicant has not previously breached any visa conditions. There is also no evidence to suggest that the applicant has a history of difficulties, or lack of co-operation with the Department.

39. At the hearing, the applicant confirmed that he has had no other compliance issues with the Department since arriving in Australia in 2011.

40. This weighs against exercising the discretion to cancel.

    The degree of hardship that may be caused to the visa holder and any family members

41. As outlined, the applicant's wife is listed as a dependant on his Subclass 457 visa. As such, her visa would be subject to consequential cancellation under s.140 of the Act.

42. The applicant’s wife has returned with their young child to China.  The applicant has purchased a property in China, and explains that he sends money home to pay for this property and his family’s living expenses.  The applicant does not own any property in Australia.

43. The applicant would like to obtain permanent residency in Australia.  Having lived in Australia since 2011, he feels that he has assimilated, and is comfortable in Australia.  He is worried that he will have difficulty getting work as a cook in China, as things have moved on since he left.

44. While it may be upsetting for the applicant to depart Australia, particularly after living here for more than 8 years with aspirations to remain permanently, the Tribunal finds that the cancellation of the Subclass 457 visa will not result in any significant hardship to the applicant or his family. The Tribunal notes that the applicant has no financial commitments related to his housing in Australia, and has family with property in China.

45. While the applicant may be in a position to financially contribute to his family through his employment in Australia, he will not be precluded from doing so in China. The applicant now has the benefit of the work experience gained in Australia working in restaurant management. The Tribunal notes that the applicant held a temporary visa with no guarantee that he could remain in Australia on the expiration of the visa.

46. These factors do not weigh against exercising the discretion to cancel the visa.

    The circumstances in which the ground for cancellation arose

47. The policy suggests the Tribunal should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

48. The Tribunal accepts that the applicant may not have been aware of the changes in the corporate structure of his workplace.  The Tribunal accepts that the applicant has continued working at the Fire and Stone restaurant, hopeful that the nomination by the new owner, Auspac Hospitality Management Pty Ltd, would be approved.  That has not happened, and the applicant does not have an approved sponsor.

49. The applicant's non-compliance with condition 8107 of his visa is substantial, in the sense that at the time of decision he has not been employed with his sponsoring employer for more than 2 years. The Tribunal considers that this weighs in favour of exercising the discretion to cancel the visa.

    Whether there are mandatory legal consequences to a cancellation decision

50. The Tribunal acknowledges that upon the cancellation of his visa, the applicant would become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s.198 if he does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of his visa.

51. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116.

52. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new visa from overseas in the future.

    Australia's international obligations

53. 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).

54. There is nothing in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Therefore, the Tribunal is satisfied that there is little in these matters to weigh against exercising the discretion to cancel.

55. Based on the evidence before it and taking into account all the relevant circumstances, on balance, the Tribunal finds that the reasons for exercising the discretion not to cancel the applicant's Subclass 457 visa do not outweigh the reasons to cancel the visa.

    DECISION

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

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

    Bridget Cullen
    Member