He (Migration)

[2020] AATA 1826

He (Migration) [2020] AATA 1826 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hongjin He
Miss Wanxin He

CASE NUMBER:  1933655

HOME AFFAIRS REFERENCE(S):          BCC2019/1968522

MEMBER:Michelle East

DATE:10 March 2020

PLACE OF DECISION:  Perth

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 10 March 2020 at 11:41am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 60 days – sponsor ceased trading – sponsorship cancelled – decision under review affirmed          

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 140, 348
Migration Regulations 1994 (Cth), r 2.12; Schedule 8, Condition 8107

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 20 November 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 s116(1)(b) on the basis that the applicant had not complied with paragraph 3(b) of visa condition 8107 attached to his visa. 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. A copy of the delegate’s decision was provided to the Tribunal under cover of email from the applicant dated 28 November 2019.

4. 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.

5. On 29 January 2020 the Tribunal wrote to the review applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone.  The Tribunal invited the review applicants to give evidence and present arguments at a hearing on 10 March 2020.  The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. 

6. No response to the hearing invitation was received and the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear.  Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

7. 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

8. 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?

9. 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 attached to the applicant’s visa. This condition requires the applicant to work in the occupation listed in the most recently approved nomination, and if the applicant ceases employment the period during which the visa holder ceases employment must not exceed 60 consecutive days.

10. The applicant provided to the Tribunal a copy of the delegate’s decision record. It records, amongst other things, that condition 8107 was attached to the applicant’s Subclass 457 visa, granted on 27 July 2017 on the basis of his employment with Fuzhong Trading Pty Ltd as a Cook (ANZSCO 351311).

11. On 25 September 2019 a Notice of Intention to Consider Cancellation (NOICC) was sent to the last known address of the applicant.  A ‘Return to Sender’ was received on 23 October 2019 and the NOICC was issued to a new address by Registered Post as well as email.  The NOICC was again returned to sender with the notation of being ‘unclaimed’.  The delegate proceeded to make the decision to cancel the visa.

12. Information as provided in the delegate’s decision is that the sponsor, Fuzhong Trading Pty Ltd advised the Department they had ceased trading on 1 October 2018 and their ABN was cancelled on 30 October 2018.  A decision was made under s.140M of the Act to cancel the approval of Fuzhong Trading Pty Ltd as a sponsor.  The delegate was of the view that the applicant ceased his employment on the same day that the sponsor ceased trading, 1 October 2018.

13. The occupation of Cook is not one specified in the relevant instrument referred to in paragraph 8107(3A) that would exempt the applicant from having to comply with the requirements of paragraph 8107(3)(a).

14. Therefore the applicant is required to only work for the sponsor or an associated entity.  There is no evidence to suggest that the applicant has worked for the sponsor or an associated entity since 1 October 2018.

15. Therefore, the Tribunal finds that the applicant has ceased employment for a period exceeding 60 consecutive days.

16. The Tribunal finds that the applicant has failed to comply with the requirements of condition 8107. 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) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

17. 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 Procedural Instructions (previously known as PAM3) ‘General visa cancellation powers’.

18. 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 Procedural Instructions 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 the Procedural Instructions cannot go beyond the wording of the legislation, even where they are favourable to the applicant.

19. Nevertheless, the Tribunal considers that the policy guidelines in the Procedural Instructions provide a useful starting point in respect of the exercise of its discretion.  In considering this matter, the Tribunal has also taken into account any information it received from the applicant.

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

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

21. The applicant arrived in Australia on 31 May 2015, having been granted a Sub-class 457 visa on 19 May 2015.  The evidence is that the applicant was working for his nominated sponsor until the sponsor ceased operating on 1 October 2018.

22. Based on the evidence before it the Tribunal is satisfied that as of the day of its decision, the applicant is not working in the nominated position with an approved standard business sponsor.

23. 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 was a temporary visa of limited duration related to working for a particular sponsor in the nominated skilled occupation.  The Tribunal finds that this purpose no longer exists because the applicant ceased working in the nominated position in October 2018 and there is no valid and current nomination.

24. As noted before, the applicant is neither the subject of an approved nomination, nor the subject of an application for approval of a nominated position by a standard business sponsor or party to a labour agreement.

25. The Tribunal gives this substantial weight in favour of exercising the discretion to cancel the visa.

    The reason for and extent of the breach

26. As noted in the delegate’s decision, the Department was advised that the standard business sponsor who nominated the applicant in the most recently approved nomination for the visa, Fuzhong Trading Pty Ltd cased trading on 1 October 2018.

27. There is no evidence before the Tribunal to suggest that the applicant has not otherwise complied with the conditions of his 457 visa or current bridging visa.  Prior to his sponsoring employer ceasing to trade, the applicant did not voluntarily cease his employment.

28. The Tribunal considers this factor weighs in favour of not exercising its discretion to cancel the visa.

    The circumstances in which the ground of cancellation arose

29. 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.  The Tribunal gives this some weight in favour of not exercising the discretion to cancel the visa.

    The degree of hardship (financial, psychological, emotional or other) that may be caused to the visa holder and any family members

30. There is no evidence before the Tribunal of any hardship to the visa holder and family members.

31. The Tribunal accepts that leaving Australia may involve some hardship to the applicant and his family, however balanced against this is the fact that the applicant came to Australia on a temporary visa which creates no expectation of remaining in Australia permanently.  It was designed to allow skilled workers to come to Australia and work for an approved sponsor for up to 4 years.

32. Overall the Tribunal gives this factor some weight in favour of its decision to cancel the visa.

    The visa holder’s past and present behaviour toward the Department

33. There is no evidence before the Tribunal that the applicant has breached any other visa conditions or had adverse behaviour towards the Department.  The Tribunal gives this some weight in favour of not exercising its discretion to cancel the visa.

    Any consequential cancellations that may result

34. The Tribunal notes that the applicant’s daughter has been granted a visa on the basis of being a family member of the family unit of the applicant, who is the primary visa holder.

35. The Tribunal accepts that this may impact the applicant’s daughter but notes that she is an adult who is able to lodge a visa application in her own right.

36. The Tribunal gives this factor some weight in favour of its decision to cancel the visa

    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 applicant from making a valid visa application without the Minister’s intervention

37. The applicant is currently on a bridging visa as a result of his review application.  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 so, he has the opportunity to depart Australia.  If he fails to do so, this may result in detention or removal action, but this is not a necessary consequence of the cancellation decision.  The Tribunal is satisfied that the applicant has applied for and been granted a bridging visa that would continue to be available to the applicant if he needs to make arrangements to depart or to lodge a judicial review application in the event that this review is unsuccessful.

38. 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 skill visas. This limits the visa applications which can be made by the applicant whilst onshore. However, these are the intended legislative consequences of the cancellation and they are consistent with the objectives of the migration program.

39. The Tribunal gives this factor some weight in favour of its discretion to cancel the visa.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa 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 to suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.

42. The Tribunal notes the applicant has one daughter onshore who is 20 years old this year.

43. The Tribunal observes that the daughter is able to lodge a visa application in her own right.

44. The Tribunal gives this factor some weight in favour of its discretion to cancel the visa.

45. Having regard to the findings above and the circumstances of this case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh those for not cancelling. 

46. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

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

    DECISION

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

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

    Michelle East
    Member