Hur (Migration)

[2018] AATA 5189

Hur (Migration) [2018] AATA 5189 (28 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tae Beum Hur
Ms Sunsook Min
Mr Jaemin Hur
Ms Dayeon Hur

CASE NUMBER:  1710913

HOME AFFAIRS REFERENCE(S):           BCC2017/362987

MEMBER:Susan Trotter

DATE:28 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first-named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 28 September 2018 at 8:03am

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Business (Long Stay)) visa – the first-named applicant ceased to work in his nominated occupation – non genuine position – no compelling need for the first-named applicant to remain in Australia – other applicants’ visas were automatically cancelled as a consequence of first named applicant’s cancellation – no jurisdiction with respect to the other applicants – decision for the first named applicant under review affirmed

LEGISLATION
Migration Act 1958, ss 109, 116,140, 348,
Migration Regulations 1994, r 2.43, Schedule 4, PIC 4013, 4014

CASES
Krummrey v MIAC (2005) 147 FCR 557
Rani & Ors v MIMA (1997) 80 FCR 379
SZBEL v MIMIA (2006) 228 CLR 152
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 17 May 2017 made by a delegate of the then Minister for Immigration and Border Protection[1] (the Minister) to cancel the first-named applicant’s Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

[1] Now the Minister for Home Affairs

1. The first-named applicant is a 54 citizen of the Republic of Korea (South Korea). He first arrived in Australia in February 1999 as the holder of an Electronic Travel Authority (visitor) visa and held a number of further visas before being granted a Subclass 457 (Business (Long Stay) visa on 11 December 2014, with DWL Pty Ltd (DWL) nominating him to work as a Wall and Floor Tiler. The second-named applicant is the wife of the first-named applicant and the third and fourth-named applicants are their children.

3.    On 2 May 2017, a Notice of Intention to Consider Cancellation (NOICC) was forwarded to the first-named applicant, with a response received on 8 May 2017.

1. On 17 May 2017, the first-named applicant’s visa was cancelled under s.116(1)(g) of the Act on the basis that a prescribed ground for cancelling the visa applied, namely that the first-named applicant had ceased to have a genuine intention to perform the occupation of Wall and Floor Tiler for which he had been nominated.

5.    For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to the first-named applicant. The second-named, third-named and fourth-named applicants’ visas were automatically cancelled as a consequence of the operation of s.140 of the Act, which made the cancellation of their visas self-executing upon 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 these visa cancellations under s.140(1), the Tribunal has no jurisdiction with respect to them.

6.    The applicants appeared before the Tribunal on 6 August 2018 and 18 September 2018 to give evidence and present arguments.

7.    For the following reasons, the Tribunal has concluded that the decision to cancel the first-named applicant’s visa should be affirmed.

ISSUES

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.

9. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to an 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 grounds set out in r.2.43(1)(kb) are relevant. Regulation 2.43(1)(kb) specifics that the Minister may cancel a visa where satisfied that:

(i)the visa holder did not have a genuine intention to perform the nominated occupation;

(ii)the visa holder has ceased to have a genuine intention to perform that occupation; or

(iii)the position associated with the nominated occupation is not genuine.

1. Also of potential relevance is whether on review of a decision made under s.116, the Tribunal is limited to the ground or grounds relied upon by the primary decision-maker and/or identified in the NOICC.

2. It is clear that if a decision has been made to cancel a visa under s.116, it is not open to the Tribunal on review to consider whether the visa might have been cancelled under a different power, such as s.109, and conversely, if a visa has been cancelled under s.109, it would not be open to the Tribunal on review to consider whether it might have been cancelled under s.116. On the other hand, the Tribunal is not limited to the particular issues that the delegate considered (SZBEL v MIMIA (2006) 228 CLR 152). Thus, it has been held that on the review of a decision to cancel a visa under s.116(1)(b) for breach of condition 8202(3)(a) (80% attendance requirement) it was open to the Tribunal to affirm the decision on the basis of breach of condition 8202(3)(b) (academic result). In Krummrey v MIAC (2005) 147 FCR 557, the grounds for cancellation , the Full Federal Court accepted that it would (theoretically) have been open to the delegate, and on review the Tribunal, to give consideration to cancelling the visa in reliance on a different ground in s.116(1) than that relied upon by the delegate.

3. If satisfied that a 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.

4. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the first-named applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Procedures Advice Manual (PAM3) of the Department of Home Affairs (the Department), ‘General visa cancellation powers’ including:

   (a)  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;

   (b)  The extent of compliance with visa conditions;

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

   (d)  Circumstances in which ground of cancellation arose. 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;

   (e)  Past and present conduct of the visa holder towards the Department;

   (f)    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;

   (g)  Whether there would be consequential cancellations under s.140 of the Act;

   (h)  Whether any international obligations would be breached as a result of the cancellation; and

   (i)    Any other relevant matters.

5. It follows that the issues to be determined by the Tribunal are:

   (a)  Does a ground for cancellation exist?

   (b)  Should the discretion to cancel the visa be exercised?

   CONSIDERATION

6. The nominated occupation in relation to the grant of the Subclass 457 visa to the first-named applicant was the occupation of Wall and Floor Tiler with DWL.

7. As noted in the decision record which was provided by the applicants to the Tribunal, the delegate found that the first-named applicant ceased to have a genuine intention to perform the nominated occupation on the basis that on 9 February 2016, DWL advised the Department that the first-named applicant had never commenced employment with the company and that the company had tried but had not been able to get in contact with the first-named applicant to arrange for him to commence working in the nominated occupation.

8. The first-named applicant, in responding to the NOICC stated as follows in relation to why his visa should not be cancelled (unedited):

   As in the statement, the visa holder has not ceased to have genuine intention to perform the occupation. Due to discriminatory policy of the sponsoring company to 457 visa holder, the visa holder has tried to find alternative sponsoring company. Also, he has been misled by previous migration agent.

   Recently, he finally found a reliable sponsoring company and preparing for application under the same occupation. It iv very much appreciate if you kindly allow the visa holder a couple of weeks to have an opportunity to apply for 457 visa.

   As the father of a family, the visa holder is mostly worrying about his children because his children have been educated for a while in Australia and eager to study further here.

   Please refer to the translated statement attached.

   The Tribunal observes that there was no statement attached to the response contained on the Department’s file.

9. The first-named applicant provided the Tribunal with a letter in relation to his application, which as far as is of potential relevance to whether a ground for cancellation exists, states as follows (unedited):

   I do not agree to the statement about my work behaviour that the previous company called DWL. The owner of this company descried about me that I never received his phone and left the site without noticing site managers. However, this is not true. The office of this company is located near my house and the owner did not even call me. The owner of DWL has been lying on my working behaviour intentionally because they wanted to fire me. The reason I believe in this way is because they payed me differently as contract and forced me for over working every day (more than 10 hours of daily work, no guarantee of night work allowance, no extra pay for working on public holidays, no paid annual eave of 40 days). So I tried to change my sponsor to my wife as she was eager to start a construction business…

10. The first-named applicant’s evidence at the first hearing included as follows:

    (a)  DWL runs a tiling business. The company director is called Taewon Lee. Mr Lee lived in the same neighbourhood as him and he was the younger brother of his friend.

    (b)  He arrived in Australia in June 2009 on a tourist visa. He had previously also visited Australia and made some acquaintances during those visits. He had been working as a tiler in Korea and wanted to see through his acquaintances if he could find some jobs in Australia as a tiler. He met someone in Sydney with whom he was already acquainted. That person was working at the Gold Coast for Echo Tiles Pty Ltd so around June 2010 he went to the Gold Coast. He applied for a sponsorship and Subclass 457 visa through Echo Tiles and that was granted in September 2010.

    (c)  He worked for Echo Tiles from September 2010 to July 2014. After working there for four years he was introduced to Mr Lee through a friend and decided to get a sponsorship for another Subclass 457 visa through Mr Lee’s company, DWL. He was granted a 457 visa under the sponsorship of DWL on 11 December 2014.

    (d)  Even before that visa was granted, he started working for DWL. From July 2014, when he finished with Echo Tiles, he had already started working there and started the application process. He worked there for about a year.

    (e)  During the year he worked for them, they required him to work as a subcontractor even though he knew that being on a Subclass 457 visa mean it was illegal to work as a subcontractor. DWL had him get his wife to set up a tiling company, Wiz Tiling, and he was paid through his wife’s company. It was a mutually agreed decision because at the time DWL had some work in a regional area, Mackay, and if they were to send their employees there they had accommodation and other costs. They therefore instead thought a subcontractor arrangement would be better for them. It was therefore decided that he would do the work in Mackay as a subcontractor for four months from September 2014.

    (f)    When queried as to whether he was ever employed as an employee by DWL or whether the work was done all as a subcontractor, he responded that for 60% to 70% of the period that he worked with DWL, he worked as a subcontractor and for the rest of the period he worked as a paid worker.

    (g)  After coming back from the Mackay site, the work from DWL was intermittent. DWL did not have a lot of work so he would go to other work sites that he knew through his acquaintances, and would work for them.

    (h)  Wiz Tiling was set up around July 2014. When queried as to whether Wiz Tiling continued operating after January 2015, he responded that it did. When queried as to whether he kept working for Wiz Tiling, he responded that because legally he was not able to work under Wiz Tiling, he didn’t. He worked for DWL and because his son is a tiler himself, he worked for Wiz Tiling.

    (i)    He had an employment contract with DWL which provided for him to have a yearly salary of $92,000. However, before the sponsorship even started, DWL said that they were not going to honour the contract and that they would only use him as a subcontractor. He understood that he was not permitted to do this; that it was not the purpose of the Subclass 457 visa. However, that was the arrangement that DWL required of him.

    (j)    He finished working for DWL around October 2015. When queried as to how that came about, he responded that DWL started underpaying them for the subcontract work. The work cost was usually calculated per square metre but DWL were paying them under the conventional rate and that caused trouble and he told them he would start looking for a different sponsor.

    (k)   When queried as to why a square metre rate was relevant when pursuant to the employment contract he was meant to be paid a salary of $92,000 per annum, he stated that was what DWL wanted instead of paying him the salary. If there were small odd jobs, they would pay a daily job rate.

    (l)    It was put to the first-named applicant that based on his evidence it might seem that he never had an intention to work for DWL as an employed Wall and Floor Tiler but rather always intended to work for them via subcontract with Wiz Tiling. The first-named applicant responded that he still worked for DWL but because it was hard for them to manage all the work sites, they got him to set up a team of workers and to subcontract.

    (m) The Tribunal suggested to the first-named applicant that based on his evidence it appeared he had essentially set up his own company, albeit in his wife’s name, and obtaining the Subclass 457 visa via DWL enabled him to have a visa to stay in Australia to do that. The first-named applicant responded that the Mackay subcontract job was before he was granted the visa with DWL and that arrangement did not continue. Most of the jobs after that were small jobs and he was paid daily pay rates the same as DWL employees would get. He said he had a team of 4-5 people that he was supervising. The money went through Wiz Tiling but the work was for DWL.

    (n)  When queried as to who employed the 4-5 people he supervised, the first-named applicant responded that they were not employed by DWL. He just asked around when he needed an extra set of hands. When queried as to who paid those people, he responded that because the money was received through Wiz Tiling, Wiz Tiling paid those employees.

    (o)  The Tribunal suggested to the first-named applicant that based upon his evidence, it appears the arrangement was a means of the first-named applicant getting a visa to remain in Australia but to run his own business, not to work for DWL as an employee. The first-named applicant responded that he understood that he was allowed to work as a subcontractor via Wiz Tiling before the visa was granted which is what he did for the Mackay project. He continued the same arrangement with DWL after the visa was granted because they demanded he continue to work as a subcontractor.

    (p)  The Tribunal discussed with the first-named applicant the letter he provided to the Tribunal in support of his application. The first-named applicant said that he wrote the letter and his daughter translated it. The Tribunal discussed with the first-named applicant the following part of the letter:

    The owner of the DWL has been lying on my working behaviour intentionally because they wanted to fir me. The reason I believe in this way is because they payed me differently as contract and forced me for over working every day (more than 10 hours of daily work, no guarantee of night work allowance, no extra pay for working on public holidays, no paid annual leave of 40 days). So I tried to change my sponsor to my wife as she was eager to start a construction business…

    (q)  The Tribunal queried whether the first-named applicant took any action with any organisation, such as Fair Work Australia, or another organisation that could help employees with unfair payment issues, in relation to DWL not paying him correctly. He responded that he would complain to the owner over the telephone but there was no documentation. The Tribunal queried whether he received any payslips from DWL. He responded that he did not.

    (r)   The Tribunal asked the first-named applicant why he had earlier stated that he worked as a subcontractor with DWL for 60 to 70% of the time and as an employee the rest of the time, but had subsequently said that he worked as a subcontractor for DWL the whole time. The first-named applicant responded that what he meant is that the rest of the time, he was paid daily rates.

    (s)  When queried as to whether he was paid individually or to his own bank account by DWL at any time for his work, he responded no, the money always went to Wiz Tiling.

    (t)    After an adjournment in the hearing, the first-named applicant sought to confirm what had happened. He said that he was introduced by an acquaintance to DWL, he went to Mackay from September 2014 to December 2014 and had his wife set up Wiz Tiling. After that he was granted the Subclass 457 visa via DWL. He knew that continuing to work as a subcontractor was illegal so he asked to get paid on a salary basis. After that from around January/ February 2015 when DWL called him, he would go there and work on a daily rate basis but his pay was still paid via Wiz Tiling. Because he did not want to break the law he got an acquaintance to introduce him to an agent and asked them if there were any other options. They advised that it might be possible for him to set up a company under his wife’s name and set up a family sponsorship. Because they already had Wiz Tiling, they used that to sponsor him and they started the process for Wiz Tiling to sponsor him instead. Wiz Tiling could not sponsor him earlier because he was told by his migration agent that the sponsor needed to have a certain amount of turnover.

    (u)  When queried as to what he has been doing since October 2015 when he finished working for DWL, he said that because his visa was via DWL, it was illegal for him to work for someone else but his son, who is a tiler, could work for Wiz Tiling.

    (v)   He is now working for another tiling company, Casa Tiling. It is with someone who he previously worked with at Echo Tiling. He started working with them two months ago because Wiz Tiling applied for bankruptcy in July 2018. He only started working with them from May 2017 when he received work rights from the Department. His son is also now working for Casa Tiling.

    (w) He believes it is unfair because DWL demanded the working conditions he had. That led to him seeking advice from the wrong migration agent and that cost him over $10,000. He therefore thinks it is very unfair that DWL notified the Department that he ignored the supervisor’s calls and left the workplace without notifying the managers. They forced him to work in an illegal working environment but he did the work not according to their tastes and they framed him as though he was not working there. He told DWL, after the four month project in Mackay, that he wanted to be paid pursuant to the contract but they kept insisting on him subcontracting.

    (x)   He did not at any time ask DWL to delay the commencement of his employment with DWL for personal or other reasons as alleged. In response to the Tribunal putting to the first-named applicant[2] that information before the Department from DWL was that the first-named applicant had requested postponement of his commencement of employment with DWL for personal reasons and he did not commence employment with DWL afterwards despite DWL asking him to work in compliance with the employment contract, the first-named applicant responded that DWL did not ever contact him to come to work despite him living very close to his work. It is a baseless thing that DWL said to have his visa cancelled.

    [2] Pursuant to s.359AA of the Act

    (y)   He has been living in Australia most of the time since 2009. He has gone back to South Korea a few times for short visits. He has two older sisters and an older brother living there. His sisters are housewives and his brother works in construction.

    (z)  He used to own a property in South Korea but sold it in approximately 2016 to buy a townhouse in Southport.

    (aa)When queried as to why he sold his property in South Korea and purchased a property in Australia in circumstances where he only had a temporary visa in Australia, he responded that it was because his children are going to live in Australia.

    (bb)He is too old to get a job in South Korea now. When queried as to whether he had made any enquiries about working in South Korea, he responded no.

    (cc)The Tribunal noted that given that the first-named applicant had 30 years’ experience in tiling (as stated in his letter), with 20 of those years being in South Korea, that notwithstanding his age now, the Tribunal might not consider that the first-named applicant would not be able to get a job and earn money to support himself in South Korea. He responded that he has been in Australia for close to 10 years and is now 53 (54 at the time of decision) and would find it hard to have the courage to go back to South Korea and start working again. He is accustomed to the way of Australia and it would be hard for him to reaccustom to life in South Korea.

    (dd)His daughter is studying and his son is working. They now have their own visas. He needs to help his daughter with her tuition fees by working in Australia and his son wants to apply for permanent residency through the Regional Sponsored Migration Scheme.

    (ee)The Tribunal observed that the Subclass 457 visa is a temporary visa only, and even if not cancelled it would expire in late 2018, and was not a visa that ever guaranteed the first-named applicant of being able to remain in Australia. The first-named applicant stated that his pastor had recommended taking a theology course and applying for a religious visa. Alternatively, his daughter may obtain a permanent visa in a regional area and might sponsor him. That might be an option.

    (ff)His son and daughter are preparing to apply for permanent visas and if his visa was to be cancelled he would have to go back to South Korea and that would enforce a three year ban when he could not come to Australia. His biggest concern is for his children. He needs to provide for his daughter’s tuition fees. He wants to be in Australia for his daughter’s graduation ceremony next year and for his son’s wedding which will likely be in June 2019. If the visa is cancelled he will not be able to attend these important family occasions because of the three year ban. It would be heartbreaking to not be present on these occasions. He had a $200,000 mortgage on the property he has bought in Australia. He only has $60,000 to pay back. The idea of going back to South Korea in these circumstances is very gruesome and very worrying.

    (gg)He has a potential to contribute to the Australian community through his skills and employment history.

1. The first-named applicant’s evidence at the second hearing included as follows:

   (a)  After confirming the Tribunal’s understanding of the first-named applicant’s evidence at the first hearing as summarised in paragraph 19, the Tribunal queried the first-named applicant as to how he differentiated between when he worked for DWL as a subcontractor and when he says he worked for them directly. The first-named applicant responded that it was more to do with the site operations style. For example, DWL would not have enough tilers doing ceiling tiles so they would ask him to arrange a team to do the work. So for some sites he was told to bring along his own workers and for other sites it was just him. However he was still paid via Wiz Tiling. Sometimes he was paid based on a square metre rate and sometimes he was paid a daily rate of $450 per day. When queried as to how that rate was worked out, the first-named applicant responded that it is quite common practice among Korean tiling companies to pay approximately that rate. The rate was not calculated pursuant to the employment contract he had with DWL because DWL did not want to have employees. They did not want to have to pay wages.

   (b)  The Tribunal discussed with the first-named applicant that if an alternative ground for cancellation of the visa existed, it could mean, subject to consideration of whether the discretion to cancel the visa should be exercised, that notwithstanding that the Tribunal might find that the actual ground relied upon by the Department did not exist, it could still conclude that a ground to cancel the visa existed such that the decision of the Department to cancel the visa would be affirmed. The first-named applicant indicated that he understood this position.

   (c)  The Tribunal asked the first-named applicant if he wished to comment on the possible alternative ground for cancellation, and therefore new issue, the Tribunal was considering. The first-named applicant responded that at the first hearing he did not fully explain the situation. He said that he worked under DWL meaning that he was paid by DWL and the reason why he worked as a subcontractor is because that is something they asked him to do. The Tribunal noted, however, that the first-named applicant’s evidence at the first hearing was that he was never paid directly by DWL and that all payments went through Wiz Tiling. The first-named applicant responded that DWL did not give him a choice as they did not want to have employees. The only way they would give him work was as a subcontractor through Wiz Tiling. They did not want to pay for things like superannuation. The owner said they could not really afford it. The Tribunal suggested that in those circumstances it might conclude that there was never a genuine position as an employee as a Wall and Floor tiler such that there was a ground for cancellation of the visa on that basis, and subject to considering whether the discretion to cancel the visa should be exercised, including as part of that consideration that DWL insisted upon him working in the manner that he did, the Tribunal might therefore conclude that the decision to cancel his visa should be affirmed. The first-named applicant responded that he felt he had no choice but to agree to that arrangement to get the work. DWL offered to sponsor him and those are the conditions they offered.

   (d) In the context of consideration of this new issue, an alternative ground for cancellation pursuant to r.2.43(1)(kb)(iii), at the hearing on 18 September 2018, the Tribunal again put to the first-named applicant[3] the information before the Department from DWL that the first-named applicant had requested postponement of his commencement of employment with DWL for personal reasons and did not commence employment with DWL afterward despite DWL asking him to work in compliance with the employment contract. The first-named applicant responded that his story has not changed. He has nothing new to add. He did not receive any contact from DWL regarding working for them. They alleged he was not working on different sites, which was not true.

   (e)  It was not his intention to end up in breach of immigration law. He has heard that if his visa is cancelled he will be banned from entering Australia for three years. He would like to come back to Australia to attend his son’s wedding and his daughter’s graduation. He is willing to face going back to Korea but he would like to come back to attend these important family events.

   (f)    When queried, the first-named applicant responded that his son’s wife is not an Australian citizen or Australian permanent resident. She is on a student visa.

   (g)  The Tribunal discussed with the first-named applicant that the Subclass 457 visa was due to cease at the end of 2018 even if it were not cancelled. The first-named applicant told the Tribunal that it is going to be extremely difficult for him. He has been in Australia for nearly 10 years. He left his job in Korea. He was hoping to establish his life here. He does not want to go back to start a new life and be separate from his family.

   (h)  He has not been very lucky with visas. He worked with Echo Tiles for four years and would have become eligible to become a permanent resident in January 2013. A lot of his colleagues managed to get a permanent visa. However in July 2012 the English exemption requirement changed and that is how he lost the opportunity to become a permanent resident and then had trouble with DWL. There have been many good potential sponsors available but for the last nine years there have been very frequent changes to the immigration law. Some have been lucky. He has not been lucky.

   (i)    He is the biggest victim in all of this. He was bullied into working as a subcontractor. Also his migration agent somehow suggested to him that Wiz Tiling would become his sponsor and somehow that didn’t happen. He was simply following instructions and the arrangements made for his sponsorship. He is the one who feels this pain and is now a victim because his visa has been cancelled.

   [3] Pursuant to s.359AA of the Act

2. The second-named applicant told the Tribunal that the whole visa status is unfair treatment. It would be heartbreaking for her husband to miss their daughter’s graduation ceremony and their son’s wedding. They sold their assets in South Korea to settle in Australia and it seems unfair as they have nothing in South Korea now. Further, her husband has been underpaid and it has caused financial and emotional distress. Her husband is a very good person who works very hard. The main reason they came to Australia was to have a good life as a family. They did not come to Australia to be in debt. The wages her husband received were far less than he was promised.

3. The fourth-named applicant told the Tribunal that her parents came to Australia to give her the experience of being in Australia. They enjoyed being here so tried to extend their visa with DWL. Her parents did not sell their property in Korea to start with. They only sold after two years. She is studying accounting in Australia and will be qualified for a permanent visa next year in August. Her parents did not have any intention to live here forever when they first arrived however the plans changed when she became qualified.

   Issue 1 - Does a ground for cancellation exist?

4. Having considered all the evidence before it, the Tribunal is satisfied that the first-named applicant has at all times intended to perform the occupation of a tiler, albeit as a sub-contractor rather than as an employee of DWL. It follows therefore that the Tribunal is not satisfied that there is a ground for cancellation under r.2.43(1)(kb)(ii).

5. However, the Tribunal also considered whether alternatively a ground for cancellation exists under r.2.43(1)(kb)(iii) on the basis that the position associated with the nominated occupation is not genuine.

6. As already noted, at the hearing on 18 September 2018, the Tribunal discussed with the first-named applicant that although it might not be satisfied that a ground for cancellation of his visa exists under r.2.43(1)(kb)(ii), it may find that the position associated with the nominated occupation is not genuine such that an alternative ground for cancellation existed under r.2.43(1)(kb)(iii). The Tribunal noted that that ground had not been canvassed by the Department but that the Tribunal considered that if it concluded that the position associated with the nominated occupation was not genuine, a ground for cancellation nevertheless existed.

7. The Tribunal carefully considered all of the evidence before it, including the first-named applicant’s response to the new possible alternative ground for cancellation raised by the Tribunal. Having considered all the evidence before it, the Tribunal is not satisfied the position associated with the nominated occupation with DWL was genuine. Rather, as suggested to and discussed with the first-named applicant at both hearings, the Tribunal considers that the first-named applicant at all times only worked as a subcontractor for DWL via Wiz Tiling. The first-named applicant’s clear evidence on a number of occasions was that DWL did not want to have employees. Based on the evidence, the Tribunal is of the view that it was always intended that the first-named applicant’s relationship with DWL be via a subcontract arrangement with his wife’s company Wiz Tiling, and that there was never a genuine position as employee in the nominated occupation for DWL. The Tribunal finds that the position associated with the nominated occupation was not genuine.

8. For these reasons, the Tribunal is satisfied that a ground for cancellation in s.116(1)(g) exists pursuant to r.2.43(1)(kb)(iii). As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled

   Issue 2 – Should the discretion to cancel the visa be exercised?

9. The Tribunal had regard to all relevant factors in considering whether the discretion to cancel the visa should be exercised, including the factors suggested in PAM3.

   The purpose of the first-named applicant’s travel and stay in Australia, whether the first-named applicant has a compelling need to travel to or remain in Australia

10. Notably departmental policy guidelines in PAM3, refer to the purpose of the Subclass 457 visa program, which no longer exists, as being “designed to enable employers to address labour shortages by bringing in genuinely skilled workers where they cannot find an appropriately skilled Australian.” A Subclass 457 visa is not one under which the visa holder can stay permanently in Australia to establish himself or herself, and it does not create an expectation of a permanent stay. Its purpose is to enable a 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 under the Australian and New Zealand Standard Classification of Occupations (ANZSCO). The Subclass 457 visa is one of limited duration related to working for a particular sponsor in a skilled occupation. The purpose of a Subclass 457 visa is not served by allowing an applicant to remain in Australia to study, train for a particular career, look for employment opportunities, or improve their financial position.

11. On the basis of the evidence before it, the Tribunal is satisfied that the first-named applicant was granted a Subclass 457 visa on 11 December 2014 to enable him to remain in Australia and work as an employee of DWL as a Wall and Floor Tiler.

12. However, as already noted the Tribunal is not satisfied that the nominated position with DWL genuinely existed. The Tribunal accepts that there was a business relationship of some sort between the first-named applicant and DWL but is not satisfied that it was one of employer/employee. If follows that the Tribunal is not satisfied the intended purpose of the visa ever existed.

13. The Tribunal also considered whether there is a compelling need for the first-named applicant to remain in Australia. The Tribunal considers it understandable that the first-named applicant would wish to remain in Australia to assist his daughter with tuition fees, to attend his daughter’s graduation and to attend his son’s wedding (with both events to occur in 2019). Further, the Tribunal accepts that the first-named applicant and his family would all prefer to remain living as a family in Australia. However, the Tribunal does not consider these preferences amount to a compelling need for the first-named applicant to remain in Australia.

    The extent of compliance with visa conditions and co-operation with the Department

14. There is no evidence before the Tribunal that the first-named applicant has otherwise breached any visa conditions.

15. There is no evidence of a lack of co-operation with the Department. The first-named applicant promptly responded to the notice of intention to cancel his visa. Those matters stand in his favour.

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

16. The Tribunal accepts that financial, psychological and emotional hardship is likely to be caused to the first-named applicant and his family members should the visa be cancelled.

17. The Tribunal accepts that the first-named applicant and his wife and family have now been in Australia almost continuously for over nine years and that the first-named applicant’s children now have visas to remain, at least temporarily, in Australia, to work and study. The Tribunal has taken into account the first-named applicant’s submission that he would find it hard to have the courage to go back to South Korea and start working again, that he is accustomed to the way of Australia and it would be hard for him to reaccustom to life in South Korea.

18. The Tribunal accepts that the first-named applicant and his family will likely suffer not insignificant hardship if the visa is cancelled, likely necessitating the first-named applicant to return to South Korea. As discussed at hearing, the Tribunal does not accept that the first-named applicant will be unable to make a livelihood in South Korea. As discussed with the first-named applicant at hearing, he has 30 years’ experience in tiling, of which 20 years was in South Korea, and has family links in South Korea (including a brother who works in construction) and the Tribunal is satisfied that these matters would stand him in good stead, despite his relatively mature age, in likely obtaining employment in South Korea. Notably, the first-named applicant’s evidence was that he had not made enquiries about job prospects in South Korea. As such there is no evidence before the Tribunal that would support a finding that the first-named applicant will encounter insurmountable difficulty re-establishing himself and his wife in South Korea where the first-named applicant’s older siblings live and are able to maintain livelihoods. Nonetheless, the Tribunal accepts that the first-named applicant and his family will likely be impacted financially, psychologically and emotionally if the visa is cancelled given that they had invested their time, energy and money in to establishing a life in Australia over the last nine years and it is their preference that the family all remain living in Australia. The Tribunal gives the likely hardship the first-named applicant and his family will suffer some weight in the first-named applicant’s favour in consideration of whether to exercise the discretion to cancel the visa.

    Circumstances in which ground of cancellation arose - 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

19. The summary of the first-named applicant’s evidence earlier in these Reasons transverses the circumstances in which the ground for cancellation arose. It is clear that the first-named applicant was desirous of continuing to work in Australia and accepted the sponsorship offered by DWL to that end. The Tribunal accepts that the first-named applicant felt that he had no choice but to work as a subcontractor for DWL, rather than as an employee, given he saw this as his option at the time to remain in Australia. However, it is clear that the first-named applicant was aware that this was not the intended purpose of the Subclass 457 visa and, notably, until an apparent recent application for bankruptcy (liquidation) by Wiz Tiling in July 2018, the first-named applicant was essentially running his own tiling business, albeit legally under his wife’s name. Having taken all of these matters into account, the Tribunal does not accept that the circumstances in which the ground of cancellation arose were beyond the first-named applicant’s control. The Tribunal considers the circumstances that led to the cancellation of the first-named applicant’s visa weigh in favour of exercising the discretion 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 person from making a valid visa application without the Minister’s intervention

20. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The first-named applicant currently holds a Bridging E visa and will only be subject to detention if he does not continue to hold a visa to remain lawfully in Australia or he refuses to depart. The Tribunal accepts that if the visa is cancelled the first-named applicant will be affected by s.48 of the Act. He will have limited options for applying for a valid visa in Australia, without the intervention of the Minister.

21. However, these possible legal outcomes are the intended consequences of the legislation. They also reflect the seriousness with which visa cancellation is viewed.

22. Accordingly, given the evidence before it, the Tribunal is not persuaded that there is anything in the mandatory legal consequences that generally flow from cancellation that warrants the discretion to cancel the visa not being exercised.

    Whether there would be consequential cancellations under s.140 of the Act

23. As noted earlier, the first-named applicant’s wife and children had their Subclass 457 visas automatically cancelled under s.140 of the Act once the first-named applicant’s visa was cancelled. Notably, however, the children now hold visas in their own right; the third-named applicant holds a working holiday (temporary) visa and the fourth-named applicant holds a student (temporary) visa.

24. Given cancellation of the second-named applicant’s visa is an intended operation of the law, the Tribunal places no weight on this factor.

    Whether any international obligations would be breached as a result of the cancellation

25. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

26. As already canvassed, the Tribunal took into account the first-named applicant’s concern that he is accustomed to the way of Australia and it would be hard for him to reaccustom to life in South Korea. The Tribunal accepts and acknowledges that it will likely be hard for the first-named applicant to reaccustom to life in South Korea, particularly after such an extended period of residence in Australia. However, the Tribunal considers that despite such hardship the first-named applicant, who has gained valuable further work and life experience in Australia, will be able to overcome any such hardship and re-establish himself in his home country, his country of residence from birth and for most of his life. The Tribunal is satisfied that the first-named applicant has gained valuable work experience during his stay in Australia. Further, while continued cancellation may now mean that the first-named applicant and his wife are temporarily separated from their children, that position is only temporary. The visas the children have to remain in Australia are temporary visas and there is nothing to prevent continued contact between the family, and travel by the children to visit the first-named applicant and his wife in South Korea.

1. The Tribunal has also taken into account the various letters of support provided in favour of the first-named applicant and his wife, including from their church, and is satisfied that they are commendable, hard-working and valuable members of the community. The Tribunal places some weight in the first-named applicant’s favour on the positive and commendable role of the first-named applicant in the Australian community.

2. It is understandable that the first-named applicant (and his wife) wish to be present in Australia to attend their daughter’s graduation ceremony and their son’s wedding. The first-named applicant referred to his inability to return to Australia for three years if the visa is cancelled, meaning that he would be unable to attend his daughter’s graduation or his son’s wedding.

3. The Tribunal acknowledges in this regard that most temporary visas, including currently a Visitor visa, require that applicants meet Public Interest Criterion (PIC) 4013 and 4014 of Schedule 4 to the Regulations.

4. However, the Tribunal is not satisfied on the evidence before it that the first-named applicant will necessarily be affected by the three year exclusion period if his Subclass 457 visa is cancelled. The first-named applicant’s Subclass 457 visa was cancelled on 17 May 2017. He was granted a Bridging E visa on, 30 May 2017such that the Tribunal is satisfied the Bridging E visa was granted to the first-named applicant within 28 days after his Subclass 457 visa ceased to be in effect.

5. The Tribunal has had regard to PIC 4013 and considers that the first-named applicant will not be subject to an exclusion period because he is not affected by a risk factor in PIC 4013(1A), (2), (2A) or (3). He is not affected by the risk factor under PIC 4013(2)(b) because although his visa is cancelled under s.116, the visa was not of a subclass specified in Part 2 of Schedule 4. The risk factor in PIC 4014(4)(b) will also not apply to the first-named applicant under PIC 4014(5) if a bridging visa held by the first-named applicant, at the time of departure, was granted within 28 days after a substantive visa held by the first-named applicant ceased to be in effect. In this case, the first-named applicant was granted a bridging E visa within 28 days of his Subclass 457 visa being cancelled. Therefore, if at the time the first-named applicant departs Australia he holds the bridging visa that was granted within 28 days after the substantive visa held by him ceased to be in effect, the risk factor in PIC 4014(5) will not apply to him.

6. It is not the role of the Tribunal to provide advice and it is a matter for the first-named applicant as to what visa he might seek to return to Australia if this visa is cancelled and he wishes to return for his daughter’s graduation and his son’s wedding. However, given current migration law, it would appear that cancellation of the visa on the basis being considered would not result in the first-named applicant being affected by the three year exclusion period in PIC 4013 and PIC 4014 if he applies for a temporary visa offshore. The Tribunal therefore places no weight on the possible three year ban in the first-named applicant’s favour in considering whether the discretion to cancel the visa should be exercised. Notably, however, any visa for which the first-named applicant might choose to apply for in the future, whether a Visitor visa or otherwise, necessarily also requires the satisfaction of other visa criteria not the subject of the Tribunal’s consideration.

   Conclusion

7. As already canvassed and as discussed with the first-named applicant, a Subclass 457 is of limited duration related to working for a particular sponsor in a skilled occupation. It does not create an expectation of a permanent or extended life in Australia or an expectation of ongoing financial or other advantage by reason of being in Australia.

8. The Tribunal has placed weight in the first-named applicant’s favour on a number of factors as canvassed. The Tribunal accepts, as canvassed, that there will likely be not insignificant financial, psychological and emotional hardship caused by the cancellation of the visa to the first-named applicant and his family. The Tribunal accepts that the first-named applicant and his family, individually and as a family unit, would prefer to remain in Australia together, particularly given that they have been here since 2009 and there are expected important family celebrations to take place in 2019. The Tribunal also accepts that the first-named applicant may find it difficult to reaccustom himself to and re-establish a life in South Korea after such an extended absence. The Tribunal has also taken into account the first-named applicant’s potential to contribute to the Australian community through his skills and employment and the valuable role he plays in his church and the local community.

9. The Tribunal has also placed some weight in the first-named applicant’s favour on his co-operation with the Department. However, importantly the Tribunal also placed significant weight upon the intended purpose of the visa and the circumstances in which the ground for cancellation arose.

10. Having had regard to all of the evidence and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

11. The Tribunal affirms the decision to cancel the first-named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

    Susan Trotter
    Member