Jatikavanij (Migration)

[2019] AATA 1599

Jatikavanij (Migration) [2019] AATA 1599 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Pimpisa Jatikavanij
Mr Pisut SANGKARAT
Miss Priya SANGKARAT

CASE NUMBER:  1815534

HOME AFFAIRS REFERENCE(S):           BCC2018/375984

MEMBER:Mr S Norman

DATE:16 January 2019

PLACE OF DECISION:  Sydney

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 16 January 2019 at 10:22am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Restaurant Manager – ceased employment for more than 90 days – tax issues – conflict with employer – inconsistent evidence – circumstances not beyond applicant’s control – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198, 348, 359
Migration Regulations 1994 (Cth), Condition 8107, PIC 4013

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 17 May 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) visa (the Subclass 457 visa) under s.116 of the Migration Act 1958 (the Act).

2. The Department delegate’s decision was not lodged with the Tribunal. However, the Notification of Cancellation of the Subclass 457 visa under s.116 (General Power) of the Migration Act dated 17 May 2018, was lodged with the Tribunal.

3. The delegate cancelled the visa under s.116(1)(b) of the Act, on the basis that the applicant had breached condition 8107(3)(b) (discussed below). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The 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.

5. The applicant appeared before the Tribunal on 10 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband (Mr Pisut SANGKARAT – that evidence was materially similar to that of the applicant).

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) of the Act. 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)(b) attached to the applicant’s visa. That required:

   8107 (3) …

   (b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 90 consecutive days …  

9. The applicant was granted a Subclass 457 visa on 10 March 2016 (the sponsor’s nomination was approved on 10 March 2016[1]). The Notification of Cancellation of the Subclass 457 visa under s.116 (General Power) of the Migration Act dated 17 May 2018 (and which was lodged with the Tribunal[2]) stated:

   The standard business sponsor who nominated you in the most recently approved nomination for your visa is WAI KEI ANDY CHOIC (the sponsor [Orchard Thai Restaurant]). On 19 June 2017, the sponsor advised the Department in writing that the applicant had ceased employment with them effective 1 May 2017.

   Neither the applicant nor her sponsor  ... informed the Department that she had returned to work for the sponsor or an associated entity of theirs, within 90 consecutive days of ceasing employment.

   The circumstances in subclause 8107(3A) do not apply because the applicant’s occupation is not specified in an instrument in writing to exempt her from having to meet the requirements of condition 8107(3A)(a)(ii). Therefore, in order for the applicant to lawfully work for another sponsor in Australia while she holds her visa, she would first need to lodge a new Temporary Business Entry Nomination Application in respect of her and for the Department to approve this.

   Therefore, I am satisfied you have ceased employment for more than 90 consecutive days, and therefore do not meet the requirements of condition 8107(3)(b) … attached to your visa.

   [1] Department – folio 13.

   [2] Tribunal – folio 22.

10. By Notice of Intention to Consider Cancelling the applicant’s visa dated 4 April 2018,[3] the above information had been put to the applicant for comment. However, as she had not complied with a condition of her visa, the delegate was satisfied there was a ground for cancelling her visa under s.116(1)(b) of the Act. The delegate decided to cancel the visa on 17 May 2018.

    [3] Department – folio 14. 

11. By email of 12 April 2018[4] (to the Department), the applicant had said she did not know why her sponsor said she had ceased working with him and that information to this effect was not true. The applicant also said she would “get her lawyer to contact the Department about this as her employer [was not doing] the right thing by her”.

    [4] Department – folio 8.

12. By email of 18 April 2018,[5] the applicant said her sponsor claimed she had ceased employment since 22 June 2017 (sic) but this was false. She said it was ‘the time she can apply for permanent resident and he has to give her all the documents about her taxation and superannuation and he can’t do it because he didn’t pay anything he never pay my superannuation … He doesn’t want to pay my tax for the last year if he said I still work for him after July he has to pay for my tax … I’ve been working with him for two years and the last financial year is the second year that he didn’t give me a group certificate for tax return [though at hearing the applicant said she had been given a group certificate for her first year of work after being granted the Subclass 457 visa] … He just paid on April 2017... The applicant declared her tax return for 2016 financial year…. She does not want a problem with the ATO … She is having a few issues with her employer since she worked with him … The applicant was asking her sponsor to pay money direct into her bank account but he refused and only gave her $75 per day cash [at hearing, the applicant said she was paid $480 per week in the hand] … The applicant never got sick pay or holiday pay and when she asked it was always a big issue and she did want to fight … The sponsor asked the applicant to pay extra money if she wanted to apply for permanent residence … The applicant refused… And that’s why the sponsor ended her visa… she is worried her visa will be cancelled and she was worried about her daughter as she was born in and is studying in Australia’.

    [5] Department – folio 11.

13. By email of 8 May 2018,[6] the applicant said her sponsor asked her to ‘stop working for a while’ on around 1 May 2017; that on 28 May 2017 he texted her and asked that she start to work again; she did not know she had been reported to the Department; she asked her sponsor and his wife about paying taxes but was ignored; that on 17 July 2017 the sponsor and his wife were drunk and met her in city and attempted to assault her and threatened that she should not do anything with the ATO; then the applicant was proposing to report the incident to the police but the sponsor and his wife apologised; and the sponsor had then told the applicant to find other work [at hearing, the applicant said the business was suffering]; but the applicant was still working with him (though at hearing she said she ceased working for the sponsor around March 2018) and she was still owed money.

    [6] Department – folio 16.

14. Also lodged was a letter dated 5 November 2018[7] (with the Tribunal). After referring to the cancellation of her Subclass 457 visa, the applicant said she “had an issue with her employer” because she was asking about her tax for the 2016 and 2017 years; she wanted to avoid a problem with the ATO; her sponsor said he’d already paid the tax but the applicant said this was not correct and she had checked this with the ATO; the sponsor was angry with the applicant and asked her to stop working and then asked her to return to work on 28 May 2017; the sponsor said he would fix the tax; the applicant continued working; on 17 July the applicant met the sponsor and his wife in the city and an incident took place; the applicant reported the incident to the police; after a few weeks she contacted the police but her sponsor had later called her to apologise.

    [7] Tribunal – folio 78.

15. At the end of January 2018, the sponsor told the applicant he could not continue sponsoring her and she would have to find another sponsor; that the sponsor would let the applicant know when her visa was cancelled; the applicant had also asked the sponsor to pay her the money she was owed (and about this the applicant had contacted “Fair Work”[8]); the applicant said the reference to her ceasing work on 1 May 2017 was incorrect as she returned to work from 28 May 2017.

    [8] Tribunal – folio 78 (reverse side).

16. By s.359A letter dated 11 October 2018,[9] the Tribunal put to the applicant the reason/s her visa may be cancelled (as appeared in the delegate’s decision record). The letter stated (in part):

    ·     You were granted a subclass 457 Visa on 10 March 2016. It was originally valid to 10 March 2020 but was cancelled on 17 May 2018. Your visa was sponsored by Wai Kei Andy Choi

    ·     Your subclass 457 Visa was subject to condition 8107 work restriction, which required in part, that you must not cease to be employed by an approved sponsor, and that if you ceased employment the period must not exceed 90 consecutive days

    ·     You ceased being employed by your sponsor on or before 1 May 2017. On 17 May 2018, the date your visa was cancelled, you had not worked for your sponsor for more than 90 consecutive days

    ·     There is no [at least corroborating] information to indicate you had recommenced employment with your sponsor

    ·     A recent check indicates that no relevant business nominations have been approved in respect of you since your visa was cancelled

    [9] Tribunal – from folio 69.

17. The applicant was then advised the information was relevant as:

    ·     You breached a condition of your subclass 457 visa, and there are grounds for cancelling your visa under s.116(1)(b) of the Migration Act

    ·     There are circumstances which may indicate that your subclass 457 Visa should be cancelled, including that:

    ·your subclass 457 Visa was granted to you for the purposes of undertaking particular employment with an approved sponsor and that purpose ceased when you stopped being employed by your sponsor

    ·you have not secured a new approved employer sponsor because no new business nomination has been approved for you

    ·if we were to set aside the cancellation of your visa and the visa was reinstated, you would immediately be in breach of the condition 8107

18. The applicant was requested to comment in writing by 25 October 2018 (though an extension to 8 November 2018 had been granted). In her 5 November 2018 reply, the applicant lodged the following (in part):

    ·    An email dated 27 July 2017 to [email protected]. She said she “went to the police station last two weeks to report that she have problem with her sponsor and his wife … And now she still hadn’t got a report and would like to check how everything is going”[10]

    ·    an email dated 27 July 2017 indicating that a named person would check CCTV footage and “determine the correct method to deal” with the applicant’s problems[11]

    ·    an email dated “26 May” which appeared to include a threat about the applicant’s visa[12]

    [10] Tribunal – folio 75.

    [11] Tribunal – folio 76.

    [12] Tribunal – folio 77.

19. When discussed at hearing, the applicant said she had been employed with her Subclass 457 visa sponsor (at the Orchard Thai Restaurant) for approximately five years (two of which were after she had been granted the Subclass 457 visa on 10 March 2016). The Tribunal noted the evidence indicated that on 19 June 2017, the sponsor had advised the Department in writing that the applicant had ceased employment with them effective 1 May 2017. The applicant then had referred to the abovementioned email from her sponsor dated 26 May (2017).[13] Amongst other things, this appeared to request she re-commence work and threatened to ‘report to immigration cancel [her] visa’. The applicant said this was evidence of her having recommenced work for the sponsor, and to have continued to work for the sponsor up until March 2018, shortly prior to the Department issuing the NOICC letter. However, and as stated at hearing, the Tribunal may accept (and now does accept), that it also could be evidence the applicant did not recommence to work at the sponsor’s business (the Orchard Thai Restaurant in Wareemba – where the applicant was employed as a Restaurant Manager), which was why the sponsor subsequently advised the Department on 19 June 2017, that the applicant had ceased work.

    [13] Tribunal – folio 77; at hearing, the Tribunal noted that it would find this email was dated26 May 2017, and the applicant did not dispute this.  

20. Next, in July 2017, the sponsor and/or his partner had approached the applicant at a ‘bistro’ (not at the Orchard Thai restaurant where the applicant had worked for the sponsor) and an incident had taken place. The applicant said she had reported this to the police, but her sponsor was then attempting to sponsor his partner to Australia on a partner visa, and had therefore apologised to the applicant, the applicant had then withdrawn the police complaint, and the matter was now resolved. However, and as stated at hearing, this would mean that shortly after the sponsor had advised the Department the applicant had ceased working for him, he was prepared to apologise to her but not advise the Department the applicant was then allegedly still working for him. Therefore, the applicant is claiming the sponsor was seeking to engage the sympathies of the applicant (by withdrawing the police complaint), but would then ensure that her visa status continued to be in jeopardy.  The Tribunal accepts that such behaviour is possible, but given the other findings herein, I do not accept it plausible in this case.

21. Next, the applicant said the abovementioned incident occurred in July 2017, and this indicated her ongoing engagement working with the sponsor. However, the Tribunal said it may find (and now does find), that it is evidence she continued to have an ongoing dispute with her sponsor (tax, superannuation, holiday pay etc), and not that she continued to work for him after 1 May 2017.

22. The applicant said that after being granted her Bridging visa E, she had then commenced (from around June 2018) to work for a cafe in Gordon on a casual basis.

23. That being said, after having considered all the evidence, the Tribunal is satisfied the applicant ceased her employment with her Subclass 457 visa sponsor on 1 May 2017, and the period during which she had ceased her employment had then exceeded 90 consecutive days.

24. For these reasons, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) of the Act, 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

25. 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’.

26. Regarding the purpose for the applicant’s stay in Australia, at hearing the applicant explained she had first travelled to Australia in September 2009 on a Student visa. She had then returned to Thailand in 2011, and had then returned to Australia on a second Student visa in May 2012. On 10 March 2016, the applicant had been granted the Subclass 457 visa. Based on the evidence before the Tribunal, I accept the applicant had (at least initially) stayed in Australia for the purposes of engaging in work for her Subclass 457 visa sponsor (the Tribunal has discussed compelling need to remain in Australia below). 

27. Regarding the extent of compliance with visa conditions, the Tribunal has found the applicant ceased work for her approved nominator (the sponsor) on 1 May 2017, and the NOICC was issued on 4 April 2018.  She said she had attempted to “do everything right”; and that she thought the Department would have contacted her sooner than it did if she was in breach of her visa conditions. However, the Tribunal understands the Department seeks to ensure that applicant’s understand the conditions attached to their visa (commonly in the letter advising of the grant of the visa). At hearing, the Tribunal said it may find (and now does find) that the applicant understood the conditions attached to her visa (and in particular the abovementioned ‘90 days’ criteria) and that she was obliged to have sought to remedy her circumstances.

28. Regarding the degree of hardship the applicant or her family may suffer (financial, psychological, emotional or other hardship) if her visa is cancelled, by email of 18 April 2018[14] the applicant said she wished to avoid problems with the ATO, and she had not been paid in full by her former sponsor. The applicant said she wanted to “get a life better for her [now 8 ½ year old] daughter as she born here and been living here most of her life”; and she is worried as to whether the daughter would be able to continue her education in Australia.  After considering the evidence, the Tribunal is satisfied the applicant (and her family) may suffer some hardship should her visa be cancelled.

    [14] Department – folio 11.

29. For instance, when discussed at hearing, the Tribunal understands the applicant had made an official complaint to (at least) the Fair Work Ombudsman, but that without more evidence, they had declined to pursue her case. The Tribunal therefore accepts that if the applicant’s visa is cancelled, she may have lost any practicable opportunity to recover any monies claimed to be owing to her by her former sponsor.

30. Next, the applicant’s daughter (a citizen of Thailand) had resided in Australia since 1 July 2010, and was attending school in Australia. At hearing, the applicant said the education her daughter would have access to in Thailand, may not be as developed as that which is available to her in Australia. However, at hearing the applicant conceded she had completed a Bachelor’s degree in Bangkok Thailand, before coming to Australia and where she had completed a Diploma of Business. She had also worked in Thailand as a business co-ordinator for Korda Thailand (a camera and film distributor). Her husband (a dependent visa holder and Thai citizen), had completed two years of a four year degree in Thailand (Bachelor of Hospitality Administration). He had also worked in a small family food stall in a market in Bangkok. At hearing, the Tribunal noted the applicant and her husband had therefore had access to education in Thailand, and this would be available to their Thai citizen daughter.[15]

    [15] Regarding education in Thailand, see US Department of State, Country Reports on Human Rights Practices for 2017, Thailand.

1. Further, as also noted by the delegate, the applicant may be eligible to apply to be allowed to remain in Australia in order for her daughter to finish her current school term (though the Tribunal understands that public Australian primary schools had not commenced the 2019 school year at the time of its decision).

2. The applicant then said her daughter would have to learn the Thai language (and she could not read or write Thai). However, the Tribunal put to the applicant it may find (and now does find) that as Thai was the first language of her parents, the daughter would have some knowledge of Thai as it was spoken in her home, and she would therefore be better placed to also learn written Thai. The applicant still believed it would be preferable for her daughter be allowed to remain in Australia, but after considering the evidence, the Tribunal is not satisfied the education available to the daughter in Thailand would be inadequate, or that her initial language difficulties should prevent it from exercising its discretion to cancel the visa.

3. The applicant then said it was not safe in Thailand, and children may be liable to child trafficking. The Tribunal understands that trafficking of children is considered a problem in Thailand.[16] However, and as stated at hearing, I had not seen any information that satisfied me that each and every child (or the applicant’s child in particular), had a real chance of being trafficked in Thailand, or that it would not be reasonable for the applicant’s daughter to return to Thailand for this reason. The Tribunal also noted the applicant had said she and her husband had taken her daughter to visit her family in Thailand around once per year since the daughter was born. Though the applicant said her family had only stayed for a ‘couple of weeks’ each visit, no claim was made about any problem/s during those visits.

   [16] See US Department of State, Country Reports on Human Rights Practices for 2017, Thailand.

4. Next, the applicant said that if she and her family returned to Thailand, she and her husband would have to work harder in order to support the family (each had previously been employed in Thailand). It was then explained the applicant’s father (in Bangkok) had suffered a stroke, and the applicant’s mother cared for the father. At hearing, I then put to the applicant that I may find (and now do find), the applicant’s mother may be well placed to care for the applicant’s daughter in Thailand, if the applicant and her husband were required to work in Thailand in order to support their extended family. Nothing then stated by the applicant satisfied the Tribunal this was not correct.

5. The circumstances which gave rise to the cancellation were that the applicant ceased work for her sponsor, and had remained unemployed for a period in excess of 90 days. The Tribunal understands the applicant claimed the circumstances were beyond her control. However, based on the above findings, I am satisfied the applicant ceased work for her employer on or around 1 May 2017, and she understood she needed to regularise her migration status after that time.

6. The Tribunal has no evidence the applicant has been uncooperative with either the Tribunal or the Department.

7. The Tribunal notes the applicant’s family members visas would be cancelled if the applicant’s visa is cancelled. This would be due to an automatic cancellation by operation of s.140 of the Act. There was no claimed evidence that any family member had applied for a visa.

8. Regarding any legal consequences if the applicant’s visa is cancelled, the applicant (and her family) would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied they would be subject to indefinite detention. Further, they may temporarily retain their Bridging visas in order to remain in the community to finalise their affairs prior to departing.

9. The Tribunal notes that if the applicant’s visa is cancelled she would be subject to s.48 of the Act and would have limited options to apply for further visas in Australia.  The applicant would also be subject to PIC 4013; meaning (generally) that she cannot be granted a temporary visa for three years from the date of cancellation of her Subclass 457 visa.

10. Next, at the Tribunal hearing, and when discussed, the applicant confirmed that other than the present Subclass 457 visa cancellation case, she had no visa application/s in Australia.  

11. Next, there is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. For instance, the Tribunal believes the best interests of the applicant’s daughter, would be to return to Thailand with her parents in order to reside with them, should the visas be cancelled.

12. Finally, after considering all the accepted evidence cumulatively, including but not limited to the fact that the applicant’s minor aged daughter had resided in Australia since July 2010 and that the applicant had not yet recovered monies claimed to be owing to her, the Tribunal is not satisfied there exists a compelling need for the applicant or her family to remain in Australia.

13. After then considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

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

    Mr S Norman
    Member