HUANG (Migration)

[2018] AATA 5446

HUANG (Migration) [2018] AATA 5446 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr DEHUANG HUANG
Mrs WEILIN XU
Mr BIN HUANG

CASE NUMBER:  1728554

HOME AFFAIRS REFERENCE(S):           BCC2017/3015345

MEMBER:Antoinette Younes

DATE:21 November 2018

PLACE OF DECISION:  Sydney

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 other applicants.

Statement made on 21 November 2018 at 12:29pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – commence employment within 90 days – consideration of discretion – purpose of a Subclass 457 visa – degree of hardship – borrowed money to pay agent – alleged fraud – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), 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 31 October 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 did not comply with condition 8107 of his Subclass 457 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. 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 other applicants’ visas were 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 those other visas 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 them.

4. The applicant appeared before the Tribunal on 20 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

6. 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

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)(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?

8. 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(3)(aa)(i) attached to the applicant’s visa. Condition 8107(3)(aa)(i) requires the visa holder to commence work within 90 days after arrival in Australia.

9. In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record provided in support of the application for review.  The Tribunal noted that the delegate’s decision record indicates that:

   ·The applicant’s nominating standard business sponsor with the approved nomination on 29 February 2016 for the applicant’s visa is CROWN STONE PTY LTD (the sponsor).

   ·According to Departmental records, the applicant arrived in Australia on 13 April 2016 as the holder of the subclass 457 visa.

   ·On 22 November 2016, the sponsor notified the Department that the applicant never commenced employment.

10. On 12 October 2017, the Department sent to the applicant a Notice of Intention to Consider Cancellation, to which the applicant did not respond.

11. In the course of the hearing, the applicant agreed that he had not commenced working with the sponsor.  The Tribunal indicated that this would suggest that he was in breach of condition 8107, attached to his visa.  He gave explanations as discussed below.

12. On the evidence, the Tribunal finds that the applicant did not commence work with the sponsor within 90 days after his arrival in Australia and that as a consequence, he breached condition 8107(3)(aa)(i).

13. For those 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

14. 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

15. The applicant was granted the visa for the purpose of working with an approved sponsor in a skilled occupation for which he was specifically nominated to work. The evidence is that he did not commence working with the sponsor within 90 days after his arrival in Australia. The sponsor on 22 November 2016 advised the Department that the applicant had never commenced employment with the company.

16. The applicant gave evidence that he is not working but his wife and son are working in Australia. Given the purpose for which the visa was granted, this factor weighs against the applicant because he did not commence working as contemplated by condition 8107(3)(aa)(i).

17. There is no evidence before the Tribunal that the applicant has a compelling need to remain in Australia.

18. The Tribunal has given this consideration significant weight in deciding that the visa should be cancelled.

    ·the extent of compliance with visa conditions

19. Condition 8107(3)(aa)(i) allows the applicant 90 days to commence working with the sponsor after his arrival in Australia and the applicant did not. The subclass 457 is a visa with a specific objective to allow the holder to work in Australia. The applicant has breached a condition attached to his visa.

20. The Tribunal has given this consideration significant weight in deciding that the visa should be cancelled.

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

21. The applicant did not provide a response to the notice of intention to consider cancellation. He did not provide any written submissions to the Tribunal.

22. In the course of the hearing, the applicant stated that when he was in China, he was told that there were many opportunities in Australia but that is not what he had discovered on his arrival. He said the agent did not take him to the employer.

23. He gave evidence that he had paid a lot of money to the agent in China and he had to borrow that money. He stated that he would like to remain in Australia and work so that he could repay the loan. He stated that the former agent had committed fraud on him but he did not provide any details about this alleged fraud. The Tribunal asked him if he remembered the name of the agent and he stated that he could not recall.

24. The applicant was granted a visa to work in Australia and he has breached a significant condition attached to his visa. Although it is plausible that he has to repay a loan, the Tribunal is not satisfied that this means that the visa should not be cancelled.

25. The Tribunal also notes that the two other applicants are working and would have obtained financial benefits from being able to work in Australia.

26. The Tribunal appreciates that the cancellation of the visa could cause a degree of hardship including financial hardship and the Tribunal has given this aspect some weight in the applicant’s favour.

27. In case of the visa cancellation and if the applicant chooses not to leave Australia voluntarily, he could become an unlawful noncitizen and could be liable to detention and removal from Australia. He would also be subject to s. 48 of the Act which would limit his options for any further visa in Australia. Although these are important considerations, the Tribunal is of the view that they are legitimate and intended consequences of the cancellation scheme and in the applicant’s circumstances, the Tribunal is not satisfied that they mean that the visa should not be cancelled.

28. On balance, the Tribunal is not satisfied that any hardship which could be encountered by the applicant means that the visa should not be cancelled.

    ·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

29. The ground for cancellation arose because the applicant breached condition 8107(3)(aa)(i). There is no evidence before the Tribunal that the ground for cancellation arose due to circumstances beyond the applicant’s control.

30. The Tribunal has given this aspect weight in deciding that the visa should be cancelled.

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

31. The applicant did not respond to the notice of intention to consider cancellation.

    ·whether there would be consequential cancellations under s.140

32. The two other named applicants, the applicant’s spouse and 21-year-old son were granted visas because the applicant was granted a visa. Their visas were automatically cancelled as a consequence of the cancellation of the applicant’s visa, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa. 

33. The applicant advised the Tribunal that his son and wife are working which means that they could suffer a degree of hardship, including financial and the Tribunal has taken this into consideration. The cancellation of their visas would mean that unless they depart voluntarily from Australia, they could also be detained and deported. The Tribunal considers those potential consequences to be legitimate and intended by the legislation.

34. On the evidence before it, the Tribunal is not satisfied that the consequential cancellation pursuant to s.140(1) of the visas of the spouse and son means that the applicant’s visa should not be cancelled.

    ·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. As previously discussed, if the applicant chooses not to leave Australia voluntarily, he could be detained and removed from Australia. He would also have difficulties in obtaining any further visas. Those are intended and lawful consequences of the legislation and in the applicant’s case, the Tribunal does not consider them to mean that the applicant’s visa should not be cancelled.

    ·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

36. There are no minor children whose interests need to be taken into consideration. In the course of the hearing, the applicant stated that he would like to remain in Australia in order to be able to work to repay his debt. The Tribunal does not consider those to be protection claims and there is no other evidence before the Tribunal that the applicant has protection claims.

37. There is no evidence before the Tribunal that Australia would be in breach of its international obligations, in case of cancellation of the applicant’s visa.

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

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

    ·any other relevant matters

39. There is no evidence of any other relevant matters which the Tribunal needs to take into consideration.

40. The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. On balance, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

42. The Tribunal has no jurisdiction with respect to the other applicants.

    Antoinette Younes

    
    Senior Member