He (Migration)

[2021] AATA 3915

He (Migration) [2021] AATA 3915 (21 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peichuan He

CASE NUMBER:  2013815

HOME AFFAIRS REFERENCE(S):          BCC2020/940321

MEMBER:Noelle Hossen

DATE:21 July 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 21 July 2021 at 3:35pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Hotel/Motel manager – ground for cancellation – ceased employment with sponsor – consideration of discretion – failure to secure new nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8607

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 September 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage 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 he breached a condition of his visa as the applicant ceased employment and the time that he was unemployed exceeded 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. The applicant appeared before the Tribunal on the 15 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant’s matter had been listed for 3 previous hearings. The first hearing on the 29 April 2021 was postponed at the applicant’s request. The applicant had advised the Tribunal that he had recently visited a Covid hot spot and needed to self-isolate.

5. The matter was relisted for the 27 May 2021. The hearing could not go ahead on that date as the applicant declared in his Covid-safe Declaration form for visitors to the AAT that he had Covid- like symptoms, such as fever with cough, sore throat, or difficulty breathing. The Tribunal organised for him to do the hearing in another room by electronic means, but he said that he felt ill and was experiencing chest pains and wanted an ambulance to be called.

6. An ambulance was called, and he was attended to by paramedics and the hearing was postponed for another date. On the day of the next hearing being 6 July 2021 the applicant called on the 5 July to say that he could not attend as he was self-isolating as he had attended a gym that was deemed to be a Covid hot spot. The hearing was postponed at the request of the applicant.

7. The Tribunal decided to exercise its discretion to hold the hearing by telephone. The hearing was held during the Covid pandemic. The Tribunal determined that it was reasonable to hold a hearing by telephone having regard to the nature of the matter and the individual circumstances of the applicant.

8. The applicant did attend the hearing by telephone. The applicant did have access to an interpreter as he had said that he would be having difficulties with understanding the technical aspects of the hearing. The interpreter was available during the hearing by telephone and was used to interpret some of the matters as needed by the applicant. The applicant did seem to have a good understanding of the English language, so the hearing was conducted for the most part without the help of the interpreter. It was explained to the applicant that he could use the services of the interpreter if he felt that he did not understand the matters raised in the hearing.

9. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.

10. The applicant had previously been represented by a registered migration agent but at the time of the final hearing did not have representation.

11. The applicant did provide limited documents to the Tribunal. The Tribunal did have a copy of the Decision of the Delegate and during the hearing the Tribunal did advise the applicant that the Tribunal had read the Decision and intended to refer to the Decision in its review of the Decision. The applicant also provided a copy of his covid test results.  

12. Based on the evidence before it the Tribunal is satisfied that the applicant breached condition 8607 that was imposed on his subclass 482 visa, as the period during which he ceased employment exceeded 60 consecutive days.

13. The Tribunal indicated that it will take into consideration the evidence given at the hearing as well as documentary evidence provided in support of the application. It asked the applicant if there was anything else that he wanted to raise with the Tribunal.

14. 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

15. 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?

16. 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 8607 (5) attached to the applicant’s visa. This condition states that if the visa holder ceases employment. The period during which the visa holder ceases employment must not exceed 60 consecutive days.

17. The Tribunal has the following evidence before it that is relevant to the compliance by the applicant of the Visa Condition 8607(5) and whether the ground to cancel the applicant’s visa has been met;

    a)The applicant was granted his 482 visa on the 12 December 2019.The term of the visa was for 2 years. The visa is due to expire on the 12 December 2021.The standard business sponsor who nominated the applicant for that visa was Jing and Peng Pty Ltd (“the sponsor”).

    b)The applicant was employed as a Hotel/Motel manager in Lake Grace.

    c)The Department received written notification from the sponsor that the applicant ceased employment with the sponsor effective on the 17 February 2020.

    d)A delegate of the Department of Home Affairs sent a Notice of Intention to Consider Cancellation on the 18 June 2020 by registered post. The Department stated that they had been advised that the applicant was no longer employed by his nominated sponsor.

    e)The applicant did not respond to the Notice and did not provide reasons as to why they did agree or disagreed with the Notice. In the Notice the delegate of the Department of Home Affairs had asked the applicant to comment on the grounds of cancellation.

    f)The applicant did not provide any evidence to the Department that he had found employment. As he ceased employment with the sponsor , and at the time that the Department made its Decision to cancel the Visa  and the period during which the applicant ceased employment had exceeded 60 consecutive days, he no longer meets the requirement of subclause 8607(5).Therefore, he has not complied with a condition of his visa.

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.”

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia:

20. At the hearing the applicant said that he came to Australia initially as he was on a student visa. He said at the hearing that he had not completed his Course that he had been doing at ECU. He referred to the Course as a Bachelor of Hospitality and Management.

21. He said that he met his wife in Australia as they were both students.

22. He said that the fact that they were involved in a major car crash when his wife was pregnant. He said as a result of the injuries or the effect of the accident had a huge impact on his ability to concentrate on his studies, so he failed 4 units. They were both not feeling well after the crash. He had to concentrate on looking after his wife because she was pregnant.

23. As a result of the crash and the events following that he did not finish his Course.

24. He told the Tribunal that he has lived in Australia for 10 years and did not want to go back to his home country. He told the Tribunal that he had been living in Australia since 2006.He had obtained a temporary visa for work in 2017. He had worked for the nominated sponsor the subject of this review for 2 years.

25. He now has 2 infant children who were born in Australia. His wife and children have returned to live in China. He told the Tribunal that they lived in his parent’s home.

26. He said whilst he was working at the Lake Grace Hotel that his wife and children lived with him.

27. He said that he was now 35 years old and that he had put in a lot of effort for the last 10 years that he has lived in Australia. He wanted to be treated fairly and felt aggrieved that he was now on a Bridging Visa with no work rights and that his parents were now sending him money so he could survive in Australia. He did not want to go back to China.

28. The applicant wishes to remain In Australia permanently and to locate a new employer that will sponsor him for a visa, which has to date been unsuccessful.

29. A 482 Visa is a temporary visa that provides for skilled people and their immediate families to work for an approved employer. When the applicant ceased his employment with Jing and Peng Pty Ltd on the 17 February 2020, the applicant has not been able to secure a new nomination. The applicant’s visa stated that he would have 60 days to search for new sponsor. The purpose (extended search for work) is not consistent with the purpose of the applicant’s visa.

30. The Tribunal weighs the following heavily in favour of exercising its discretion to cancel the applicant’s visa:

    a)The seriousness of the applicant’s breach of condition 8607 (5) of his visa- the applicant ceased employment with Jing and Peng Pty Ltd on the 17 February 2020 and has to date not secured a new nominating sponsor;

    b)The applicant’s wish to remain in Australia to search for a new sponsoring employer is inconsistent with the purpose of the 482 visa.

    the extent of compliance with visa conditions:

31. Other than the applicant’s breach of condition 8607(5) of his visa in issue, he has not breached any other condition of his visa. The Tribunal has weighed those facts against exercising its discretion to cancel the applicant’s visa.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship):

32. If the applicant’s 482 visa is cancelled, the applicant will not have the authority to remain in Australia and will have to return to China.

33. The applicant claims that he will suffer hardship as he has lived in Australia for a reasonable period. His wish is to remain living in Australia as he has lived in Australia for over 10 years. The applicant wishes for his children to live in Australia as they were born here.

34. The applicant’s family are all residing in China and he said that his wife and children are presently living with his parents and he will have a home to go to once he returns to China.

35. He does not have a job in Australia and the Tribunal finds that he will not suffer undue hardship as he will be reunited with his family especially his children in China.

36. The Tribunal accepts that there may be some difficulties adjusting to life in China especially as he has lived in Australia for such a long time, but he is young enough to establish a career in China. The matters referred to in the above paragraphs at some instances do mitigate against the weight the Tribunal places on the applicant’s hardship claims.

37. On balance the applicant’s hardship claims weigh in favour of the Tribunal exercising its discretion to cancel the visa, although the weight is reduced by the matters referred to in the preceding paragraphs.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control:

38. The applicant’s employment was terminated by his employer by notice in writing citing, breach of terms of his employment contract, negligence, misdemeanour and misconduct.

39. At the hearing the applicant was asked whether he had challenged the decision if it was unfair.

40. He said that he had contacted the Fair Work Commission but did not take the matter further after the initial telephone call as he could not afford a lawyer.

41. The Tribunal is unable to make a finding regarding the circumstances of the termination and whether it was out of the control of the applicant, and as to whether the applicant was at fault when his employment was terminated.

42. There is no evidence before the Tribunal that the applicant did start searching for employment soon after the termination of employment. The applicant did not submit to the Tribunal any written evidence of his search for a new employer. The Tribunal is unable to make a finding in respect of whether the termination was beyond his control.

    past and present behaviour of the visa holder towards the department:

43. There is no evidence before the Tribunal that the applicant has not complied with the requests of the Department. The Tribunal has given some weight in respect of this factor in favour of the applicant’s case.

    whether there would be consequential cancellations under s.140:

44. There is no evidence that the cancellation of the applicant’s visa would result in the separation of the applicant from his immediate family. The applicant’s wife and children already live in China so if he returns to China he will be reunited with his wife and children. The Tribunal weighs this factor in favour of cancelling the applicant’s visa.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention:

45. If the applicant’s bridging visa ceases on the Tribunal affirming the Delegate’s Decision, in the absence of the Minister granting the applicant another visa, he will not be authorised to remain in Australia. If that is the case the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may eventually result in detention or removal action, it is not a necessary consequence of the cancellation decision. The Tribunal has weighed that possibility against its discretion to cancel the applicant’s visa.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].):

46. Given that the evidence is that the applicant’s children have been living in China with their mother the Tribunal considers that the cancellation of the applicant’s 482 visa will not place Australia in breach of its international obligations. Under the United Nations Convention on the rights of the child. If the applicant returns to China, the family will be reunited and they will be able to resume their lives together in China (despite the applicant’s preference for the family to live in Australia.)

47. On the evidence before the Tribunal, Australia’s international obligations are not engaged by the cancellation of the applicant’s visa.

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

    DECISION

49. The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Noelle Hossen
    Member