Ke (Migration)

[2021] AATA 4401

Ke (Migration) [2021] AATA 4401 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jie-Zhan Ke
Miss YI-HSUAN CHUANG

CASE NUMBER:  2106457

HOME AFFAIRS REFERENCE(S):          BCC2021/994198

MEMBER:Amanda Mendes Da Costa

DATE:5 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 407 (Training) visa.

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

Statement made on 5 November 2021 at 1.52pm

CATCHWORDS
MIGRATION – cancellation – Training (Class GF) visa – Subclass 407 (Training) – application for another visa subclass made and cancellation of original subclass visa requested – legal advice obtained after visa cancelled and application for cancellation withdrawn – decision under review set aside for first applicant, no jurisdiction for second applicant

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 140(1), 348

Migration Regulations 1994 (Cth), r 2.43(1)(g)

CASES

Rani v MIMA (1997) 80 FCR 379

Tien v MIMA (1998) 89 FCR 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 May 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 407 (Training) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had requested the Minister (in writing) for cancellation of the 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 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.

4. The applicants appeared before the Tribunal on 26 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing and that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing.

6. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicants were represented in relation to the review.

8. 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

9. 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)(g). 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?

10. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the 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 ground in r.2.43(1)(g) is relevant.

11. The Tribunal accepts that prior to the cancellation of the applicant’s visa, he was employed as Trainee Technician by A&J Australia in Melbourne. 

12. The applicant ceased employment with A&J Australia when he resigned from his position as a Trainee Technician on 19 April 2021.  The applicant subsequently submitted an application to the Department for a subclass 408 visa[1].  On 27 April 2021 the applicant wrote to the Department requesting cancellation of his subclass 407 visa.

    [1] This application was lodged on 20 April 2021.

13. The Tribunal notes that on 28 April 2021 the Department sent the applicant a Notice to Consider Cancellation (NOICC) advising him that it was considering cancellation of his visa on the basis that he had written to it on 27 April 2021, requesting the Department to cancel the visa.

14. On 29 April 2021 the applicant responded to the NOICC as follows:

    When I was working at the company (A&J Australia), I have suffered from countless incidents of workplace bullying; however, there were no improvements made whatsoever after I had reported these bullying incidents to my boss every time they occurred.  In addition, that company paid zero attention to employee safety and has violated relevant laws and regulations repeatedly.  Many workplace accidents have taken place at that company.  All of these incidents made me [to] feel consistently under extreme pressure and have affected my long-term physical well-being and emotionally exhausted.  It caused me to suffer from insomnia and got a bald spot.  Thus, I decided to quit and terminated the contract, which means cancelled the visa.

    Due to the current CoVID-19 pandemic, I am unable to return to my country.  According to my work experience as a process worker in a beef factory.  I have secured a new job in the critical meat sector (meat industry), and I will be able to work  once I obtain the new visa.  I would like to transfer my application to the 408 visa then I can stay here to work.  I hope that could be helpful to solve labour shortage in Australia and I can contribute my expertise as much as I can to the new company.

15. On 3 May 2021 the applicant sent a further email to the Department in which he repeated the response sent by him on 29 April 2021.

16. On 4 May 2021 the Department emailed the applicant, requesting clarification as to whether he wished to have his visa cancelled and understood the consequences of the cancellation.  The Department advised the applicant that it is a requirement of a subclass 408 visa that an applicant does not have more than 90 days validity remaining on their visa at the time of lodgement.  The Department further advised that a failure to meet this criterion can result in the visa application being refused.  The Department invited the applicant to withdraw his subclass 407 visa application.

17. In response, on 4 May 2021 the applicant emailed the Department, advising as follows:

    I decide to cancel my 407 visa and I understand the consequences of the cancellation.

18. By email dated 12 May 2021 the applicant confirmed with the Department his request for his subclass 407 visa to be cancelled.

19. On 12 May 2021 a delegate of the Minister made the decision to cancel the applicant’s visa.

20. The Tribunal accepts that the circumstance in which the applicant requested cancellation of his visa was due to him resigning his employment with his sponsor.  The Tribunal is further satisfied that the applicant’s decision to leave his employment was made in the context of difficulties he experienced in his relationship with his work colleagues and their behaviour.

21. The Tribunal is satisfied that the applicant did not receive any legal advice about the consequences of the cancellation of his visa before he requested the Department to cancel it.  He obtained this advice after the visa had been cancelled.

22. In his oral evidence at the hearing, the applicant told the Tribunal that he no longer wished for his visa to be cancelled and withdrew his application for cancellation. Accordingly, the Tribunal accepts that the applicant has withdrawn his request for cancellation of his visa prior to the Tribunal making its decision on his review application.

23. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(g) exists in that the applicant no longer has an extant request for cancellation of his visa. It follows that the power to cancel the applicant’s visa does not arise.

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

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 407 (Training) visa.

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

    Amanda Mendes Da Costa
    Member