Ho (Migration)

[2020] AATA 1736

Ho (Migration) [2020] AATA 1736 (4 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Soo Ching Ho

CASE NUMBER:  2002704

HOME AFFAIRS REFERENCE(S):          BCC2019/4421856

MEMBER:Antoinette Younes

DATE:4 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 4 May 2020 at 2:30pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 Temporary Work (Skilled) – circumstances beyond visa holder’s control – sponsor’s approval as standard business sponsor cancelled – director claims no written correspondence from department notifying cancellation – FOI application – applicant’s work record and visa compliance – offer of position with another employer, pending sponsorship approval – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43, Schedule 8, condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s 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)(g) on the basis that there is a prescribed ground for cancelling the visa applies to the applicant. 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 by telephone on 29 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the director of the applicant’s former sponsor.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

5. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)(g). 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?

8. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(l)(iv) is relevant. That regulation stipulates that a prescribed ground exists in the case of a holder of a subclass 457 visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor), the sponsor has been cancelled or barred under s.140M of the Act.

9. In the course of the hearing, the Tribunal discussed with the applicant relevant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal in support of the application for review. Relevantly, the Tribunal noted that:

   ·    The sponsor that nominated the applicant in the most recently approved nomination for the visa is Wayne Massage Pty Ltd and the nomination was approved on 22 February 2016.

   · On 19 February 2019, a delegate of the Minister decided under s.140M(1) to cancel the approval of the sponsor as a standard business sponsor (SBS).

   NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC)

10. On 24 December 2019 and 23 January 2020, the Department sent to the applicant a NOITCC letters to which the applicant responded.  The Tribunal observes that the NOITCC letter of December 2019 relied on a potential ground of cancellation for ceasing employment but the NOITCC on January 2020 relied on the ground of SBS cancellation.  The decision under review relies on the ground of the SBS cancellation.

11. The applicant responded the NOITCC by noting that her employment with the sponsor had continued since the grant of the visa. She provided evidence in support such as a PAYG summary, bank statements for the periods covering 1 February 2019 to 24 January 2020, and an order summary. She also referred to multiple client reviews on Google to support her claim of continued employment with the sponsor.

    Material provided to the Tribunal:

12. Statement of the applicant dated 21 April 2020 confirming that since the grant of the visa on 22 February 2016, she had continuously worked for the sponsor as a full-time Massage Therapist and that she never had any issues with the sponsor or the Department. She stated that when she was first contacted by the Department in December 2019, she willingly provided her contact details as requested and on 24 December 2019 she received an email from the Department warning her of the potential cancellation of her 457 visa. She was confused and she immediately checked with the director of the sponsor and provided a response including documents in support of her continued employment. She is innocent and the cancellation of her visa is unfair and unreasonable. Her visa was cancelled through no fault of her own and her employment with the sponsor has been interrupted because of the cancellation. She never knew of the cancellation of the approval of the SBS and she has actively sought another employer and has been offered a full-time position as a Massage Therapist with another entity, located in a regional NSW area where she is willing to work. She hopes that the Tribunal would allow the new sponsor time for approval so that she could work in the regional area in her skilled occupation. Due to COVID19, she is unable to depart Australia.

13. Statement of the director of the sponsor, dated 17 April 2020 and a letter of support dated 29 April 2020. In essence, the director indicated that the sponsor never received any written correspondence from the Department and that the applicant since the grant of her visa has continued to work for the sponsor. The sponsor has paid superannuation and she the applicant has paid her taxes. The director noted that he was surprised on discovering the issues surrounding the cancellation of the applicant’s visa. He explained that he contacted the migration agent who had acted in the SBS and he was told that they knew nothing about the cancellation of the SBS. The director expressed that the sponsor takes its SBS obligations seriously and has complied with the obligations in accordance with the law. The cancellation of the SBS has had a disastrous impact on the applicant who had no knowledge of the SBS cancellation. She has ceased employment with the sponsor as her 457 was cancelled. The director noted that the sponsor is prepared to support the applicant in any lawful way and hoped that that the Tribunal would give her the opportunity to continue working in Australia in her skilled occupation.

14. In submissions to the Tribunal dated 21 April 2020, the representative indicated that:

    ·Neither the applicant nor the sponsor had any knowledge of the cancellation of the approval of the sponsor as a standard business sponsor until the applicant received the NOITCC on 23 January 2020. The sponsor does not have the decision relating to the SBS approval cancellation or has any knowledge of the circumstances that gave rise to cancellation of the approval.

    ·On 14 February 2020, the sponsor made an application under FOI and to date the sponsor has not received any of the requested information.

    ·On receipt of the NOITCC on 23 January 2020, the applicant informed the sponsor immediately. She was confused as her employer confirmed that they had never received any decision to cancel the SBS approval. The applicant believed that there might be an error. She provided all documents in relation to her continued employment with the sponsor and genuinely hoped that such evidence would satisfy the Department not to cancel her visa. She however actively sought employment with another employer and successfully applied to Xing and Zhang Wellcare Pty Ltd for a full-time position in her skilled occupation of Massage Therapist based in the regional New South Wales town of Orange. A new employer’s nomination application was lodged on 21 April 2020 in which the applicant has been nominated for a subclass 482 visa.

    ·The applicant’s visa was cancelled through no fault of her own. The non-compliance with condition 8107 where the applicant did not have a new nomination application approved within 90 days of ceasing employment with the sponsor was solely due to the employer and the applicant not knowing of the Departmental decision relating to the cancellation of the SBS approval. The applicant has also received an offer of full-time employment in regional New South Wales soon after the cancellation of her visa on 6 February 2020.

    ·The applicant has been cooperative with the Department and in good faith has honestly engaged with Departmental staff. Other than condition 8107, the applicant has no history of non-compliance with her visa conditions. She in fact ceased employment with the sponsor once she was informed by the Department of the decision to cancel her 457 visa.

    ·The applicant could become unlawful in case of the cancellation of her visa and she would be subject to the s.48 bar.

15. The applicant provided documents to the Tribunal concerning the sponsorship and nomination applications by Xing and Zhang Wellcare Pty Ltd for the applicant in the position of Massage Therapist.

    FINDINGS & REASONS

16. In the course of the hearing, the applicant gave evidence that she was never aware of the cancellation of the SBS and that she continued working for the sponsor until January 2020, when her visa cancelled.  She stated that she has always complied with visa conditions and that she takes her job very seriously.  The director of the sponsor gave evidence that he was not aware of the cancellation of the SBS approval until he was told by the applicant.  He stated that he contacted the agent who had acted for the sponsor in relation to the SBS application and that the agent told him that he had no knowledge of the SBS cancellation.

17. One of the central issues in this case relates to the cancellation of the SBS approval.  Although both the sponsor and the applicant have contended lack of knowledge of the SBS approval cancellation, there is no dispute that the cancellation of the approval of the SBS occurred on 19 February 2019.  The Tribunal is mindful that the cancellation of the SBS approval is not the subject of this review, although it could be relevant.  The Tribunal finds it odd that the sponsor was not aware that its approval had been cancelled.  The Tribunal is of the view that there could be many explanations relating to this issue but this does not mean that the cancellation of the SBS approval is invalid or that there is an issue with its notification.  The Tribunal gives significant weight to the delegate’s findings that the approval of the SBS was cancelled on 19 February 2019.  On the material before it, the Tribunal finds that the approval of the sponsor’s SBS was cancelled on 19 February 2019 and that the applicant was not personally aware of the SBS cancellation.  Therefore, the Tribunal finds that the requirements in reg. 2.43(1)(l)(iv) are met.

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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. On 22 February 2016, the applicant was granted the subclass 457 for the purpose of employment with the sponsor in the approved occupation of Massage Therapist.  She continued to work for the sponsor in the nominated occupation until the cancellation of her visa.  Another entity has lodged a new nomination application for the applicant in the same occupation and that application has not yet been finalised.  The assessment of that application is a matter for the Department.  The applicant gave evidence she would like to remain in Australia and continue working in that occupation.

21. On the evidence, the Tribunal accepts that the applicant travelled to Australia to work and she is staying in Australia with the intention to work for another employer, once approved.  She has travelled and is staying in Australia consistent with the purpose of the visa she was granted.

22. The Tribunal gives this consideration significant weight in the applicant’s favour.

    ·the extent of compliance with visa conditions

23. The approval of the sponsor’s SBS was cancelled on 19 February 2019 and consequently, the applicant is taken to have ceased employment effective of that date.  However, the Tribunal has accepted that the applicant continued to work for that sponsor until the cancellation of her visa in January 2020 as she did not know of the SBS approval cancellation. 

24. The Tribunal is satisfied that although technically the applicant is in breach of condition 8107 which was attached to her visa, given the circumstances, the Tribunal gives this consideration neutral weight.

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

25. The applicant gave evidence that she has no family in Australia.  Her parents and three siblings live overseas.  She stated that she provides financial support to her parents who have retired.  She explained to the Tribunal that her siblings have their own families to support and that their finances are limited.  She gave evidence about her parents’ unconditional support when she was studying medicine and she feels personal disappointment in how she has not been able to pursue a career in medicine in Australia to ‘repay’ her family.

26. The Tribunal accepts the evidence that the applicant’s employment in Australia is important to her family financially and that the cancellation of her visa is likely to cause a significant degree of financial, psychological, and emotional hardship to the applicant personally and to her family.

27. The Tribunal gives this consideration weight in the applicant’s favour.

    ·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

28. The circumstances in which the ground for cancellation arose was when the approval of the sponsor’s SBS was cancelled on 19 February 2019.  The Tribunal has accepted that the applicant had no knowledge of the cancellation. 

29. The Tribunal is satisfied that the cancellation of the SBS was not within the applicant’s control.  The evidence is that she continued to work in circumstances where she did not know of the cancellation.  She has found another employer who has lodged a new nomination for the applicant.

30. The Tribunal has considered the circumstances very carefully and has decided to give this aspect weight in favour of the applicant.

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

31. The applicant took the cancellation process seriously and responded to the NOITCC.  There is no evidence before the Tribunal that she was uncooperative.

32. The Tribunal gives this aspect weight in favour of the applicant.

    ·whether there would be consequential cancellations under s.140

33. There is no evidence before the Tribunal of ay consequential cancellation.

34. The Tribunal gives this aspect neutral weight.

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

35. The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia.  The applicant would also be impacted by s.48 of the Act which means that she may face difficulties in applying in Australia for any further visas.  She could apply for an Australian visa offshore and any such application would be assessed on its merits, including any application of Public Interest Criterion 4013 (PIC 4013). 

36. The Tribunal considers potential detention and removal from Australia as well as the s.48 bar and PIC 4013 to be intended legislative consequences. 

37. The Tribunal gives this aspect limited weight in the applicant’s favour.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

38. There is no information before the Tribunal to suggest that any children would be impacted or that Australia would be in breach of any of its non-refoulement obligations in case of cancellation. 

39. The Tribunal gives this aspect neutral weight.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

40. The subclass 457 visa is not a permanent visa.   

41. The Tribunal gives neutral weight to this consideration.

    ·any other relevant matters

42. The Tribunal is not aware of any other relevant matters.

    Concluding remarks

43. The Tribunal has carefully considered the material before it individually and cumulatively. There are multiple aspects in the applicant’s favour, particularly the fact that the cancellation of the SBS approval in February 2019 was not within her control. 

44. The Tribunal is mindful that the cancellation guidelines, as discussed above contemplate 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.  That is a ‘general rule’ and not a mandatory or strict application.  The Tribunal is satisfied that this aspect, as well as others, are in the applicant’s favour.

45. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of the applicant.

46. Considering the circumstances as a whole, the Tribunal concludes that the visa should be not be cancelled.

    DECISION

47. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Antoinette Younes

    
    Senior Member