Jung (Migration)

[2018] AATA 5978

Jung (Migration) [2018] AATA 5978 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Inyoung Jung
Ms Seul Ki Bang

CASE NUMBER:  1800439

HOME AFFAIRS REFERENCE(S):          BCC2017/2731586

MEMBER:Karen Synon

DATE:23 October 2018

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 23 October 2018 at 1:18pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – working in the same occupation at the same venue under a different employment entity – now the subject of an approved nomination – purpose of visa continues to exist – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Hasran v MIAC [2010] FCAFC 40
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 2 January 2018 made by a delegate of the Minister for Home Affairs 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 2 January 2018 the basis that the applicant had not complied with Condition 8107(3)(b).

3. 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. The applicant applied for review of the decision to cancel his visa on 5 January 2018 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

5. The applicants were represented in relation to the review by their registered migration agent.

   Jurisdiction of secondary applicants

6. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

   Invitation to comment and provide information

7. On 3 October 2018, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     The information is from the Department of Home Affairs records and relates specifically to [the applicant]:

   o    You were granted a Subclass 457 visa on 12 June 2014.  It was originally valid to 12 June 2019 but was cancelled on 2 January 2018. Your visa was sponsored by ‘Riseley Leisure Investments Pty Lt AFTT Hutchinson Investment Trust’.

   o    Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased to be employed by your approved sponsor, the period must not exceed 90 consecutive days.

   o    You ceased being employed by your sponsor on or before 24 April 2017.  On 2 January 2018, the date your visa was cancelled, you had not worked for your sponsor for more than 90 consecutive days.

   o    There is no information to indicate that you recommenced employment with your sponsor.

   o    A recent check indicates that a new relevant business nominations have been approved in respect of you since your visa was cancelled.  The nominating employer is Allmac Investments Pty Ltd.

   In conducted this review in your case:

   ·We will first consider if there are grounds to cancel your Subclass 457 visa in accordance with s.116 of the Migration Act.

   ·If we determine that there are such grounds, we will then consider if your visa should be cancelled, taking into account all the relevant information.

   This information is relevant because it indicates that:

   · 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 purpose of undertaking particular employment with an approved sponsor and that purpose ceased when you stopped being employed by your sponsor.

   If we rely on this information in making or decision, we may:

   ·Determine that you breached your visa condition and therefore are there are grounds to cancel your Subclass 457 visa under s.116(1)(b) of the Migration Act.

   ·Decide that your visa should be cancelled.

   You are invited to give comments on or respond to the above information in writing.

   If we determine that there are grounds to cancel your Subclass 457 visa, it will go on to consider if your visa should be cancelled.  In making this assessment, the Tribunal will consider all relevant information, which may include, but is not limited to:

   o    The purpose of your travel to and stay in Australia

   o    The degree of hardship that may be caused by visa cancellation

   o    The circumstances in which the ground for cancellation arose

   o    Your past and present conduct towards the department

   o    Australia’s obligations under international agreements

   o    The impact of cancellation on any victims of family violence

   o    Any other relevant matters.

8. The invitation was sent to the applicants’ authorised recipient and registered migration agent’s email address provided in connection with the review.  The applicant was advised that if a response or comments were not provided in writing by 17 October 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicant did not provide comments or a response within the prescribed period and no extension was been sought or granted within the prescribed period.

10. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via his authorised recipient at the advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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?

13. 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 was attached to the applicant’s visa. Condition 8107(3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.

14. On the basis of the information before it the Tribunal finds that the applicant was granted a subclass 457 visa on 12 June 2014 to work in the nominated position of ‘Cook’ at ‘Riseley Leisure Investments Pty Lt AFTT Hutchinson Investment Trust’.

15. On 20 December 2017 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa.  The grounds for cancellation were that the applicant had not complied with the Condition contained in paragraph 8107(3)(b) because on 24 April 2017 he ceased employment with the sponsor, ‘Riseley Leisure Investments Pty Lt AFTT Hutchinson Investment Trust’.

16. While the applicant did not respond to the Tribunal’s invitation to comment or provide information, he did respond to the Department’s NOICC relevantly submitting:

    ·ALLMAC INVESTMENTS PTY TD purchased the existing bar restaurant, BAD APPLES BAR in December 2016 and started to operate from April 2017 after settlement was done.  Since then, they lodged 457 sponsorship and nomination application to transfer an existing cook [the applicant] into their company so that he could work for the business continuously.  The sponsorship was approved on 24 July 2017 however the nomination application was refused on 18 October 2017…a second nomination application for the nominee was lodged on 6 November 2017.  It was refused again on 9 November 2017.  A third nomination was lodged on 7 December 2017 and is awaiting a decision.

    ·The applicant ceased employment with the previous owner of the business but was offered new employment with the new owner on the same basis (position and salary).  The applicant accepted the offer and this offer of employment remains valid with the business desperately wishing to hire him at the earliest convenience.  The applicant’s original purpose to travel and to stay in Australia remains the same as at the time his current 457 was initially assessed.

    ·The applicant was not responsible for ceasing employment with the previous sponsor; it was due to the deterioration of the business because of management shortage.  The applicant’s breach of condition 8107 was diminished because of the circumstances and because he found new employment

17. Relying on the information before it and in the absence of any other evidence provided by the applicant, the Tribunal is satisfied that the applicant ceased employment with his approved sponsor ‘Riseley Leisure Investments Pty Lt AFTT Hutchinson Investment Trust’. in breach of visa Condition 8107(3)(b) for a period exceeding 90 consecutive days.  There is no information the applicant subsequently resumed his employment with ‘Riseley Leisure Investments Pty Lt AFTT Hutchinson Investment Trust’; indeed the evidence is that the business in which the applicant was employed was sold to Allmac Investments Pty Ltd.

18. Accordingly the Tribunal finds that the applicant has not complied with Condition 8107(3)(b) of his Subclass 457 visa.

19. 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

20. 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’.

21. The purpose of granting a subclass 457 visa is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.  The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal finds that this purpose continues to exist given that the applicant is now the subject of an approved nomination to work in the same occupation in which he was previously employed; that of Cook,  at the same venue as he was previously employed;  BAD APPLES BAR, albeit by a different employment entity.  Although the applicant did not respond to the Tribunal’s invitation to provide additional information, having carefully considered the information provided to the Department the Tribunal observes that the applicant clearly appears to have ceased working for Riseley Leisure Investments Pty Ltd AFTT Hutchinson Investment Trust’ when the business was sold and that it was always the intention of the new owners Allmac Investments Pty Ltd to re-employ the applicant on the same basis at the same venue.  Indeed the Tribunal notes that the first nomination in respect of the applicant was lodged by the new sponsor within 90 days of the applicant ceasing his employment with ‘Riseley Leisure Investments Pty Ltd AFTT Hutchinson Investment Trust’ on 24 April 2017.  The fact that the first two nominations were refused before the third one was subsequently approved on 12 January 2018 does not, the Tribunal’s view diminish the stated intention of the new sponsor to employ the applicant.  The Tribunal gives considered significant and determinative weight to the fact that the applicant is now the subject of an approved nomination to work for a new sponsor, in the same position and at the same venue at which he was previously employed.  Also weighing in the applicant’s favour is that he ceased employment with his previous sponsor through no fault of his own and that there does not appear to be any information available that he previously breached any other visa condition or had being uncooperative with the Department.  The Tribunal is of the view that the purpose of the applicant’s stay in Australia was to work as a cook at BAD APPLES BAR and that this purpose continues albeit under different ownership and therefore by a different sponsor.

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

    DECISION

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

24. The Tribunal has no jurisdiction with respect to the second named applicant.

    Karen Synon
    Member