Guan (Migration)

[2018] AATA 5105

Guan (Migration) [2018] AATA 5105 (15 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhisen Guan
Miss Yongyin Guan

CASE NUMBER:  1702740

HOME AFFAIRS REFERENCE(S):           BCC2015/3725209

MEMBER:Antonio Dronjic

DATE:15 August 2018

PLACE OF DECISION:  Melbourne

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 15 August 2018 at 10:07am

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Temporary Work (Skilled) visa – the period during which applicant ceased employment exceeded 90 consecutive days  – breach of condition 8107 – applicant has not found a new sponsor at the time of decision – second named applicant’s visa was automatically cancelled as a consequence of first named applicant’s cancellation  – no jurisdiction with respect to the second named applicant – decision for the first named applicant under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 348
Migration Regulations 1994, r 2.12

CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
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 10 February 2017 made by a delegate of the Minister for Immigration and Border Protection 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 breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 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.

   Background to the cancellation of the applicant’s visa

4. The decision record of 10 February 2017 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 16 September 2013, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 16 September 2017;

   ·The standard business sponsor who nominated the applicant to work as a cook was H.K Chun Kong Pty Ltd;

   ·On 1 July 2015 the applicant ceased his employment with the sponsoring business;

   ·A notice of intention to consider cancellation (NOICC) was issued 20 January 2016;

   ·On 22 January 2016, the applicant responded in writing to NOICC stating that he was aware that his sponsoring employer will close its business in July 2015; that he managed to find the new employer, Yau Shun Investments Pty Ltd, who lodged a nomination application on 4 August 2015, nominating him for the position in their business; that the nomination application was refused by the Department on 5 October 2015 and that the prospective employer applied for a merits review of this decision to this Tribunal.

   ·On 10 February 2017, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 17 February 2017 for review of the visa cancellation and with his application submitted a copy of the primary decision record.

6. On 15 June 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 14 August 2018.

7. On 7 August 2018, the applicant’s representative submitted:

   ·A letter stating that the applicant will request the Tribunal to set aside the decision made by the Department and allows Shun Investments Pty Ltd to apply and become the applicant’s temporary working visa sponsor;

   ·A copy of the applicant’s PAYG payment summary for the most recent financial year as evidence that the applicant’s gross payments for the 2017-2018 financial year were $44,650;

   ·A copy of the applicant’s payslips from 7 May 2018 to 16 July 2018; evidencing the applicant’s weekly gross pay of $950.00;

   ·A copy of the applicant’s Westpac Bank account statement for the period from January to July 2018; and

   ·A copy of Yau Shun Investments Pty Ltd financial statements for the year ending 30 June 2017.

8. The applicant appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Leung, the Director and the shareholder of Yau Shun Investments Pty Ltd (trading as Hong Kong Dim Sum Glen Waverley) who is the applicant’s current employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

9. The applicant was represented in relation to the review by their registered migration agent who attended the Tribunal hearing. At the commencement of the hearing the applicant’s representative submitted a copy of the most recent Financial Statements for Yau Shun Investments Pty Ltd.

10. 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 the condition of his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

11. 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.

12. This is the summary of the applicant’s oral evidence:

    The applicant is 56 years of age and a married national of China. His wife and one of his two daughters currently reside in China. His younger daughter, who is 22 years of age, is undertaking studies in Australia and holds a Student visa.

    His cousin lives in Sydney but he is not an Australian permanent resident or citizen. His sister and mother live in China. Before arriving in Australia, the applicant lived and worked in China where he accumulated over 40 years of experience in making dim sums. He had also completed a six month course relevant to this occupation. His wife and daughter live in China at the apartment owned by the applicant. He does not have any property in Australia and has approximately $7,000 to $8,000 in savings.

    The applicant first came to Australia in October 2013, holding Subclass 457 visa granted to him in China and soon after commenced employment at H.K Chun Kong Pty Ltd. The business was located in Box Hill, Victoria and he was paid an annual salary of $59,000. He gave evidence that he did not sign any employment agreement with this business. He stated that he ceased employment in June 2015 as the sponsoring business closed.

    In August 2015, he received an offer of employment from Yau Shun Investments Pty Ltd. The business lodged the nomination application with the Department. This application was refused on 5 October 2015. The business applied for a review of this decision to this Tribunal but in February 2017 withdrew its review application. He confirmed in his evidence that he did not work in Australia from July 2015 until August 2017.

    His visa was cancelled on 10 February 2017. In April 2017, the Department removed the no work condition from his bridging visa ‘E”. The applicant commenced employment at Yau Shun Investments Pty Ltd in August 2017 and he still works there.

    When asked if his current employer lodged a new sponsorship and nomination application since he commenced his employment there, the applicant stated that they did not and that he first has to work for this business for some time. He is currently paid $950.00 per week and works on a full-time basis.

13. I explained to the applicant that, based on the evidence before me, I am satisfied that he breached the condition 8107 that was imposed on his subclass 457 visa and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

14. I indicated that I will take into consideration the evidence given at the hearing as well as documentary evidence and submission provided in support of the application. I asked the applicant if there is anything else that he wants to raise with the Tribunal.

15. The applicant stated that his daughter is studying in Australia and that he would like to be with her. He stated that his current employer is willing to sponsor and nominate him for a temporary visa and that he was a law abiding resident in Australia since he arrived to this country.

16. I enquired as to whether he signed any employment agreement with Yau Shun Investments Pty Ltd and he stated that he did not. I enquired as to whether he has any written undertaking from his current employer that they will sponsor and nominate him for a temporary visa and he stated that he does not have any such undertaking.

    Oral Evidence from Mr Leung

17. The witness stated that he is a Managing Director of Yau Shun Investments and that he holds 50% of the company’s shares. He has been with the business for the past 10 years.

18. Mr Leung stated in his evidence that the business nominated the applicant to work at the Hong Kong Dim Sum Glen Waverley business in August 2015. This application was refused by the Department on 5 October 2015. The business applied for a review of this decision to this Tribunal but in February 2017 withdrew its review application.

19. He confirmed in his evidence that the applicant has been working for Yau Shun Investments Pty Ltd since August 2017. He stated that he is paid ‘a bit over $50,000 per year’ but was unable to recall the exact amount of the applicant’s wages.

20. I enquired if the business sponsored and nominated the applicant at any time after August 2017. Initially the witness responded that it did, that the applicant submitted the application himself and then changed his evidence and stated that he is not sure if the business sponsored and nominated the applicant after August 2017.

21. 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

22. 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?

23. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.

24. In this instance condition 8107 was attached to the applicant’s visa, which was granted on 16 September 2013, and which, but for its cancellation, was valid to 16 September 2017.

25. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment with H.K Chun Kong Pty Ltd on 1 July 2015. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the Tribunal finds that the review applicant did not comply with condition 8107(3)(b).

26. 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

27. 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’.

28. 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 (No. 2) (1978-1980) 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]

29. 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.

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

30. The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

31. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a dim sum cook/supervisor on a temporary basis. The applicant was unfortunate to lose his job in July 2015. The applicant decided to remain in Australia and try to find a new employer.  He was unable to do so before his visa was cancelled by the Department on 10 February 2017.

32. Despite receiving an offer of employment from Yau Shun Investments Pty Ltd in August 2015, the applicant did not commence employment at this business until August 2017.

33. I accept that the applicant attempted to find another sponsoring employer. However, as of the day of my decision the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business. Based on the evidence before me, I find that the applicant’s visa, but for the cancellation, would have ceased on 16 September 2017 in any case.

34. As explained at the hearing, 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. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor on 1 July 2015 and he has not found a new sponsor at the time of decision.  I give significant weight to this consideration.

    The reason for and extent of the breach

35. The ground for cancellation arose when the applicant ceased working with his sponsoring employer on 1 July 2015. I accept that the applicant did not voluntarily cease working with his sponsoring employer. The applicant had an opportunity to rectify the breach, however, by commencing employment with another sponsor within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant did not work in Australia from 1 July 2015 until August 2017. He is currently working for an employer which does not have approved business nomination in relation to the applicant. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after 25 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

36. The applicant lost his job at H.K Chun Kong Pty Ltd on 1 July 2015. Despite him not being able to recommence employment for more than 18 months, the department did not proceed with the visa cancellation until 10 February 2017. I am satisfied on the evidence before me that the department afforded the applicant sufficient time to secure the employment in Australia with an alternative business sponsor.

37. Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

    Past and present conduct of the visa holder towards the department

38. There is no evidence before me that the applicant previously breached visa conditions or that he was not co-operative with the Department.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

39. I have taken into consideration the applicant’s evidence that his wife, daughter, mother and sister are residing in China; that he owns an apartment in China and that he has accumulated over 40 years of relevant work experience in China.

40. I accept that leaving Australia may involve some hardship to the applicant and his family, but I am of the view that this hardship would be significant. I do not accept that the applicant would not be able to re-establish himself in China, given his employment background and experience.   

41. Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant came to Australia on temporary visa which created no expectation of remaining in Australia permanently.

42. The 457 visa would have ceased on 16 September 2017 in any event. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

1. In any event, the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

   Whether there are mandatory legal consequences, such as whether cancellation would
   result in the visa holder being unlawful and subject 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

2. 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 has the opportunity to 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.

3. The Tribunal is mindful that Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

   Whether there would be consequential cancellations under s.140

4. Whilst the applicant’s wife’s visa is also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his wife.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

5. 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).  

6. There is little 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. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

   The impact on any victims of family violence

7. There is no evidence before the Tribunal regarding this matter.

   Other relevant matters raised by the applicant

8. The applicant stated that his daughter is studying in Australia and that he would like to be with her. He stated that his current employer is willing to sponsor and nominate him for a temporary visa and that he was a law abiding resident in Australia since he arrived to this country.

9. I accept that the applicant would like to stay in Australia with his daughter and that he was a law abiding resident since he arrived to Australia.

10. There is nothing to prevent his current employer to sponsor and nominate the applicant for a temporary work visa if they wish to do so.

11. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

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

    Antonio Dronjic
    Member