Kim (Migration)

[2020] AATA 4380

Kim (Migration) [2020] AATA 4380 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dong Hyoun Kim

CASE NUMBER:  2001167

HOME AFFAIRS REFERENCE(S):          BCC2019/3309473

MEMBER:Michael Cooke

DATE:21 October 2020

PLACE OF DECISION:  Sydney

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.

Statement made on 21 October 2020 at 3:05pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment with sponsoring company – nomination application made by another sponsor within 60 days – English language requirement – required English test score not achieved – nomination refused – required score achieved – nomination refusal set aside – genuine need to employ applicant – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s 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 breached condition 8107 attached to 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. The applicant’s representative informed the Tribunal of the applicant’s situation as follows:

   Dear Sir/Madam, Thank you for the email.

   I am acting on behalf of the applicant Mr Dong Hyoun Kim in relation to the application for review in respect of a decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa.

   What has happened to the applicant is as follows:

   (1) The applicant was granted a 457 visa: (Sponsor: The Sweet Life Farms Pty Ltd, Visa period: 19/4/2018 - 19/4/2020)

   (2) The Sweet Life Farms Pty Ltd advised the Department that he ceased employment with them effective 12 March 2019

   (3) GFH Enterprises Pty Ltd nominated him and applied for a new nomination to work in this nominated occupation: 3 May 2019

   (4) The nomination application was refused: 3 September 2019 (Reason for refusal: lack of English)

   (5) The standard business sponsor who nominated him applied for review in respect of decision to refuse nomination: 24 September 2019

   (6) The applicant achieved the required IELTS test scores (4.5 each and 5.0 overall): 21 October 2019

   (7) The Department cancelled his 457 visa: 20 January 2020

   (8) The applicant lodged review in respect of a decision to cancel his 457 visa: 23 January 2020

   (9) We are waiting for the AAT review in respect of a decision to refuse Nomination q      application.

   A new nomination application was lodged for the same nominated occupation as he previously held within 60 days of ceasing employment with his previous employer.

   The nomination application was refused because the nominee did not achieve the required IELTS test score.

   After nomination refusal, the applicant achieved the required IELTS test scores (4.5 each and 5.0 overall). Since then, the Department cancelled his 457 visa on 20 January 2020.

   The new sponsor GFH Enterprises Pty Ltd confirms that the business has a genuine need to employ the applicant to work in the nominated position under control.

   Please kindly find the attached the Sponsor's support letter, IELTS test results and Nomination application & refusal letters.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

   s.116(1)(b) - non-compliance with conditions

7. 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 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 60 consecutive days.

8. The standard business sponsor who nominated the applicant in his most recently approved nomination for his Subclass 457 visa is The Sweet Life Farms Pty Ltd (‘the sponsor’), whose nomination was approved on 23 October 2017. The sponsor advised the Department that the applicant ceased employment with them effective 12 March 2019.

9. A new nomination application was lodged for the same nominated occupation as he previously held within 60 days of ceasing employment with his previous employer. However, the nomination application was refused because the nominee did not achieve the required IELTS test score when the application was being processed.

10. Since this time, he has obtained a new approved nomination to work in his nominated occupation for an approved sponsor - GFH Enterprises Pty Ltd (se AAT 1926781).

11. 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 visa should be cancelled.

    Consideration of discretion

12. 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’.

    Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:

    ·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

13. The applicant’s visa was granted for the purpose of working for his then sponsoring employer - The Sweet Life Farms Pty Ltd – which was approved on 23 October 2017. The Tribunal observes that this purpose ceased on 12 May 2019 when he quit employment with the sponsor. The Tribunal is aware that on 3 May 2019 a new nomination was lodged by GFH Enterprises Pty Ltd for the purposes of taking over the sponsorship of the visa holder.

14. However, on 03 November 2019, this application was refused and that decision to refuse the nomination has been successfully appealed to the Tribunal. The applicant is now the subject of an approved nomination- GFH Enterprises Pty Ltd (se AAT 1926781).

    ·the extent of compliance with visa conditions

15. The standard business sponsor who nominated the applicant for his Subclass 457 visa was The Sweet Life Farms Pty Ltd (‘the sponsor’), whose nomination was approved on 23 October 2017. The sponsor advised the Department that the applicant ceased employment with them effective on 12 March 2019. The applicant found a new employer within 60 days, however, his sponsor’s nomination was refused because the applicant failed the language requirements. 

16. Since this time, he has obtained a new and approved nominator to work in his nominated occupation - GFH Enterprises Pty Ltd (se AAT 1926781).

17. The Tribunal gives this consideration significant favourable weight against cancellation.

    The degree of hardship that may be caused to the applicant and any family members

18. The Tribunal has considered this aspect of the case and finds that the applicant may experience some hardship (financial, psychological, emotional or other hardship) if the visa were cancelled. This is particularly so because his cancellation was based solely on the basis of his failure to meet the language requirements by a whisker. The applicant has been diligent in fixing the problem. His nomination by GFH Enterprises Pty Ltd has now been approved by the Tribunal.

19. The Tribunal gives this consideration significant favourable weight against cancellation.

    The circumstances in which the ground for cancellation arose

20. Based on the information provided when the Department was notified of the applicant’s cessation of employment, his employment with his Subclass 457 sponsoring employer was not terminated for reasons related to his performance in his role, or as a result of his conduct. Rather, it appears from the information before the Tribunal that he voluntarily resigned from the sponsor’s business which the Tribunal considers to be a factor within his control. He, thereupon, found a new nominator but fell afoul of the language requirements in the new application.

21. There is no information before the Tribunal to suggest that there were extenuating ‘circumstances beyond the applicant’s control’ which led to or mitigate the ground for cancellation.

22. The applicant has argued that once he knew his employment was ceasing ‘circumstances beyond his control’ led to him being unable to comply with paragraph (3)(b) of condition 8107 attached to his visa being his language test failure. The Tribunal does not agree with this contention.

23. The Tribunal gives this consideration some favourable weight against cancellation.

    The applicant’s past and present behaviour towards the Department

24. The Tribunal finds that there is no information or evidence before me to suggest that the applicant has been uncooperative with the Department or Departmental staff. He has responded in a timely manner to communications from the Tribunal.

25. The Tribunal gives this consideration significant favourable weight against cancellation.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

26. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act.

    Legal consequences of a decision to cancel the visa

27. If the applicant’s Subclass 457 visa cancellation were affirmed by the Tribunal, the applicant will immediately become an unlawful non-citizen and will need to rectify his visa status. He would also be subject to a Section 48 bar on applying for certain visas onshore. He will have limited options to apply for further visas in Australia and may be required to return to his country of origin. There is no evidence that indefinite detention is a consequence of cancellation.

28. The Tribunal gives this consideration some favourable weight against cancellation.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

29. The applicant has not applied for protection, nor made any claims of being in need of protection and therefore, there is no reason before me to suggest that his removal, if necessary, would lead to a breach of Australia’s non-refoulement obligations.

    Australia’s international obligations

30. There is no information before the Tribunal to indicate the circumstances of this case are such that they would engage Australia’s international obligations.

31. The Tribunal gives this consideration some favourable weight against cancellation.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

32. Not applicable

    ·any other relevant matters

33. The applicant initially decided unilaterally to leave his approved employer nominator. Subsequently within the 60 days. Following the end of his employment with his approved nominator the applicant successfully sought out a new employer (GFH Enterprises Pty Ltd) who, thereupon, nominated him. That particular approval was refused due to the applicant’s inability to meet the required IELTS score.

34. The applicant’s primary issue of concern was his initial inability to pass the IELTS test score at a sufficient level of competency to meet the requirements for the nomination. After two efforts, he has achieved this requirement and has provided the necessary proof to the Tribunal. The new nomination application was lodged for the same nominated occupation as he previously held within 60 days of ceasing employment with his previous employer.

35. The Tribunal has had the benefit of reviewing the nominator’s refusal. Following the receipt of additional information (including the applicant’s successful IELTS score) the Tribunal has approved his sponsor’s new nomination. Thus, importantly the applicant is now the subject of an approved nomination.

36. The Tribunal gives this consideration significant favourable weight against cancellation.

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

    DECISION

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

    Michael Cooke
    Senior Member