HWANG (Migration)

[2017] AATA 2332

HWANG (Migration) [2017] AATA 2332 (7 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr DONGWOOK HWANG
Mrs JONG SUN KIM
Mr JUN SEO HWANG
Mr HYUNSEO HWANG

CASE NUMBER:  1701986

DIBP REFERENCE(S):  BCC2016/3959964

MEMBER:Catherine Carney-Orsborn

DATE:7 November 2017

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 07 November 2017 at 4:33pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (UC) visa – Subclass 457 (Temporary Work (Skilled)) – Employer in liquidation – Remained unemployed – Did not inform Department – No evidence of new approved sponsorship

LEGISLATION

Migration Act 1958, ss 116, 116(1)(b), 116(3), 140(1), 348

Migration Regulations 1994, Schedule 2, Condition 8107(3)(b)

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 30 January 2017 made by a delegate of the Minister for Immigration 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 had not complied with a condition of 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. 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 applicants appeared before the Tribunal on 26 September 2017 to give evidence and present arguments.  The Tribunal also heard from the first named applicant’s previous employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal 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 or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(b) attached to the applicant’s visa. This condition requires that if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days.

9. It is not in dispute that the applicant ceased employment and that period has exceeded 90 consecutive days.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

11. 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 applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

12. The applicant gave oral evidence at a hearing. The first named applicant’s employer gave provided oral evidence.

13. The Tribunal has before it the Department’s file and further documents and submissions supplied by the first named applicant (the applicant). 

14. The applicant was granted a subclass 457 visa on 20 October 2014 and arrived in Australia o the 25 October 2014.  He started working for his sponsor.  He stopped working in April 2016.   He claims he did not receive any notification however the employer slowly stopped paying him.

15. Since that time he has relied on family living in Australia and his church to support him and his family.   He has family in Korea who have been supportive.

16. The Tribunal pointed out to the applicant that he had been a long time in breach of the condition.

17. He stated that his children are studying in Australia and have been doing so for nearly seven years.

18. He stated that he came to Australia as he wants to reside here permanently.  He sent his children before him.  He wants to stay with his children in Australia.  The Tribunal pointed out that the visa was always a temporary visa.

19. He stated that a new company is sponsoring him.

20. The applicant’s previous employer gave evidence he stated that his company was put in voluntary liquidation.  He claims that it was voluntary as he was advised to do so.  He claims that the accountants told him to operate as normal.  He claims he was given advice which was incorrect.

21. The applicant asked the Tribunal to give a further period of time to see if the nomination is approved.  The Tribunal gave the applicant until the 26 October 2017 to provide information on the outcome of any further nomination.

22. On 31 October 2017 the applicant provided the outcome of an IELTS result.  No information was provided in relation to any nomination.

23. The purpose of the applicant’s travel to Australia was to work.  He worked until April 2016.  Since that time he has not worked.  He claims that the business he was working for went into voluntary liquidation.  The applicant has not secured further employment.  He has been given time to secure further employment however has been unsuccessful.

24. The applicant has been in breach of a condition of his visa since April 2016.  This is well over a year and a half.  He has chosen to stay in Australia.

25. He claims he wants his children to finish their studies.  It was his and his family’s choice to move his children to Australia with him on what was always a temporary visa.  He could apply to the Department to put in place an appropriate bridging visa to assist his children to finalise their years study in Australia.

26. The applicant has parents in Korea whom are supportive of him and his family.  Children are adaptable and they are returning to their home.  If his family return to Korea they will be able to continue their education.  They are citizens of Korea and have family there.   He has acquired skills in Australia including English skills.

27. There is nothing to stop the applicant applying for further visas offshore.

28. There is no indication that any international obligations would be breached if the visa is cancelled and the applicant returns to Korea.

29. The applicant claims that his sponsor going into voluntary liquidation was circumstances which were beyond his control.  Those circumstances may have been beyond his control however he did not inform the department that his work had ceased in April 2016.  The Department was not aware that the sponsor had ceased trading until 7 September 2016.  It was not until after the Notice of Intention to Cancel was sent in September 2016 that the applicant corresponded with the Department.

30. He has had over a year and a half to remedy the breach and has not done so.  There is nothing before the Tribunal to indicate that he has secured employment with an approved sponsor.

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

    DECISION

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

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

    Catherine Carney-Orsborn
    Member