Le (Migration)

[2019] AATA 3628

Le (Migration) [2019] AATA 3628 (20 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kien Chi Le

CASE NUMBER:  1904829

HOME AFFAIRS REFERENCE(S):           BCC2018/5832229

MEMBER:Antonio Dronjic

DATE:20 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 20 August 2019 at 11:52am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary (Skilled)) – ceased employment exceeded 90 days – previous employment terminated – significant breach – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116
Migration Regulations 1994 (Cth), Condition 8107

CASES

Re Drake (No. 2) (1979) 2 ALD 634

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 March 2019 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(3)(b) as the period during which the applicant ceased employment exceeded 90 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background to the cancellation of the applicant’s visa

3. The decision record of 1 March 2019 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 18 October 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 18 October 2010;

   ·The standard business sponsor who most recently nominated the applicant to work as a cook was Hogan’s Hotel Pty Ltd (the sponsor);

   ·In September 2017 the applicant ceased his employment with the sponsoring business;

   ·A notice of intention to consider cancellation (NOICC) was issued on 5 February 2019;

   ·The Department received no response from the applicant; and

   ·On 1 March 2019, the delegate proceeded to cancel the applicant’s visa.

4. The applicant applied to the Tribunal on 1 March 2019 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 11 June 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 15 August 2019.

5. The applicant appeared before the Tribunal on 15 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thanh Trinh Thi, who is the applicant’s prospective employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. At the commencement of the hearing, the applicant submitted the following documents:

   ·A copy of the visa grant notice dated 18 October 2016 explaining the conditions imposed on his visa;

   ·A copy of the applicant’s IELTS test results dated 21 June 2014 evidencing the overall band score of five;

   ·Copies of his educational certificates;

   ·A copy of the certified extract of a court order as evidence that the applicant was convicted by the Sunshine Magistrate Court for cultivating a narcotic plant – cannabis, and fined $2000;

   ·A copy of a sponsorship approval letter dated 8 February 2019 as evidence that the applicant’s prospective employer, BMA Australia Trading Pty Ltd was approved sponsorship status on that day;

   ·A copy of the employment agreement between BMA Australia Trading Pty Ltd (trading as Hooks at the Yarra) and the applicant dated 14 August 2019 stating inter alia that the applicant’s commencement date is subject to the grant of a Subclass 482 nomination by the Department and reinstatement of the applicant’s Subclass 457 visa;

   ·A copy of the position description for the position of a cook; and

   ·A bundle of e-mails as evidence of the applicant’s attempts to find new employment in 2017.

7. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8107, to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

8. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

9. The applicant is 40 years of age and a national of Vietnam. He had a relationship with Ms Hang Thi Thu Duong in Australia and from that relationship a child was born in August 2009. His daughter is now 10 years of age and lives with the applicant’s former partner, Ms Duong and her husband. He stated that he has a close relationship with his daughter, that he takes her to school every morning and provides financial support. He explained that he gives Ms Duong between $80.00 and $100.00 in cash per week.

10. The Tribunal enquired whether he is repaying any loan advanced to him by Ms Duong. The applicant stated that he is not repaying any loan and just wants to financially help his daughter.

11. His parents live in Vietnam and his brother in Dubai. Apart from his daughter, he does not have any relatives in Australia. Prior to arriving in Australia as the holder of a Subclass 457 visa in August 2008, he completed the equivalent of year 12 and Certificate III in Commercial Cookery in Vietnam. He worked as a chef in Vietnam for more than five years. He owned a house in Vietnam which he sold prior to arriving in Australia.

12. His first Subclass 457 visa was granted in July 2008 based on the sponsorship and nomination from Coles Group Ltd. He was nominated to work as a cook and the visa was granted for a period of four years. In his evidence, the applicant stated that this visa was cancelled by the Department in August 2010 as the delegate found that he breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 90 consecutive days. He sought a review of this decision and in December 2010 the Tribunal (differently constituted) affirmed the primary decision.

13. At that time, the applicant was living in Vietnam with his daughter and has failed to appear before the Tribunal at the scheduled hearing. He explained that he took his daughter to Vietnam when she was six months old and that they lived in Vietnam for the next six years. He further stated that his former partner, Ms Duong consented to their daughter living in Vietnam and that she visited their daughter only on one occasion during the six year period.

14. He departed Australia in May 2010 and returned to Australia on 1 November 2016 after he was granted another Subclass 457 visa by the Department on 18 October 2016. This time he was sponsored and nominated by Hogan’s Hotel Pty Ltd. He commenced employment at this business on 15 November 2016. He gave evidence that he had disagreements with the head chef which resulted in termination of his employment in September 2017.

15. The applicant stated in his evidence that he has not worked as a cook since September 2017. He tried to find a new sponsoring business but was not successful. He referred the Tribunal to a bundle of e-mails submitted at the commencement of the hearing as evidence of his attempts to find new employment in 2017.

16. He further stated that he works occasionally as a handyman. He gave evidence that in July 2019, he earned approximately $1,800 working as a handyman. He stated that he is paying rent of $500 per month.

17. The applicant confirmed in his evidence that in May 2019, he was convicted by the Sunshine Magistrate Court for cultivating a narcotic plant – cannabis, and fined $2000.

18. The applicant stated in his evidence that in May 2019, he was granted a bridging visa ‘E’ by the Department that is subject to the 8101 condition (no work). He stated that he knows that he is not permitted to work in Australia. Despite  this knowledge he continued to work as he needed to ‘survive’ in Australia and take care of his daughter.

19. The Tribunal enquired as to whether the applicant contacted the Department and/or applied to have a ‘no work’ condition removed from his bridging visa. The applicant stated that he sought permission to work in 2010, when his previously held Subclass 457 visa was cancelled, but the Department refused his request. This time he did not ask the Department to have the 8101 condition removed.

20. The applicant gave evidence that he was recently offered a job at Hooks at the Yarra restaurant at Docklands and that his prospective employer agreed to sponsor and nominate him for a position of a cook. He was offered a full time position and annual salary of $54,000.

21. I explained to the applicant that, based on the evidence before me, I am satisfied that he breached condition 8107 that was imposed on his Subclass 457 visa and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances which may include matters of government policy, as set out in the departmental guidelines. The applicant conceded that he breached the condition imposed on his visa and stated that he is sorry for doing that.

22. He stated that he did try to find new employment but was not successful, that he is an experienced chef from Vietnam and that he apologises for breaching the condition imposed on his bridging visa ‘E’. He reiterated that he needed to work in order to survive in Australia and help his daughter.

23. He stated that he wants to stay in Australia and look after his daughter as they have a very close relationship. He gave evidence that, if it was not for his daughter, he would have returned to Vietnam to look after his father who suffers from diabetes.

    Evidence of Ms Thanh Trinh Thi

24. The witness stated that, together with her husband, she is the owner of the Hooks at the Yarra restaurant at Docklands. The business was opened in December 2018 and currently employs 10 employees, including one head chef and two cooks. The business advertised for the position of a cook and some 80 applicants responded. She interviewed five applicants and in early August offered the position to the applicant.

25. The Tribunal asked if the business made appropriate enquiries with the Department to determine if the applicant is allowed to work in Australia. Ms Thanh stated that the business is aware that the applicant is currently not permitted to work in Australia. She explained that, pursuant to the employment agreement, the applicant’s start date is subject to the Department approving a Subclass 482 nomination application yet to be lodged by the business and reinstatement of the applicant’s Subclass 457 visa.

26. The Tribunal enquired as to why the sponsoring business did not lodge a Subclass 482 nomination application with the Department, considering that the business was approved as a business sponsor in February 2019. The witness stated that the business was waiting for the outcome of the current review application. She added that the business intends to nominate the applicant even if his subclass 457 visa is not reinstated.

27. 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

28. 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?

29. 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 is attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 90 consecutive days.

30. In this instance condition 8107 was attached to the applicant’s visa, which was granted on 18 October 2016, and which, but for its cancellation, was valid to 18 October 2020.

31. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at Hogan’s Hotel Pty Ltd in September 2017. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the Tribunal finds that the review applicant did not comply with condition 8107(3)(b).

32. 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

33. 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’.

34. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]    See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634

    [2]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].

35. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    The purpose of the visa holder’s travel to and stay in Australia

36. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

37. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a cook on a temporary basis. The applicant ceased his employment in September 2017 because he had disagreements with the head chef which resulted in termination of his employment.

38. The applicant decided to remain in Australia. The Tribunal accepts that the applicant attempted to find new employment as a cook in 2017, but was not successful. The Tribunal further accepts that the applicant was offered employment in early August 2019, and that commencement of the applicant’s employment is subject to his Subclass 457 visa reinstatement and a successful nomination for Subclass 482 visa being made by his prospective employer.

39. The Tribunal finds that the prospective employer did not lodge the nomination application with the Department as at the time of the Tribunal hearing despite being approved as a sponsor on 8 February 2019. It uncertain when the application will be lodged as well as what will be the outcome of the application.

40. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.

41. As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it 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 no longer exists as the applicant ceased working for his sponsor in September 2017.  The Tribunal gives significant weight to this consideration.

    The reason for and extent of the breach

42. The ground for cancellation arose when the applicant ceased working with his sponsoring employer in September 2017. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant did not work in Australia in his occupation from September 2017 to the present time. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 23 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

43. The applicant ceased employment at the sponsoring business in September 2017. The Department did not proceed with the visa cancellation until 1 March 2019. I am satisfied on the evidence before me that the Department afforded the applicant sufficient time to secure employment in Australia with an alternative business sponsor.

    Past and present conduct of the visa holder towards the Department

44. The applicant gave evidence at the hearing that his previously held Subclass 457 visa was cancelled by the Department in August 2010 because the applicant breached condition 8107 as the period during which the applicant ceased employment exceeded 90 consecutive days. He sought a review of this decision and in December 2010, the Tribunal (differently constituted) affirmed the primary decision. The Tribunal gives significant weight to this consideration as the applicant’s current visa was cancelled for the same reason.

45. During the course of the Tribunal’s hearing, the applicant gave evidence that in February 2019, he was granted a bridging visa ‘E’ by the Department that was and still is subject to the 8101 (no work) condition. Despite knowing that he was prevented from working in Australia, he stated in his evidence that he is and has been working as a handyman. He stated in his evidence that he needed to ‘survive’ in Australia and financially help his daughter. He did not seek permission to work from the Department or apply to have the 8101 condition removed. The Tribunal finds that the applicant deliberately breached the 8101 (no work) condition imposed on his bridging visa ‘E’ for an extended period of time. The Tribunal gives significant weight to this consideration.

    Degree of hardship that may be caused to the applicant

1. The Tribunal has taken into consideration the applicant’s evidence that his parents live in Vietnam and his brother in Dubai and that, apart from his daughter; he does not have any relatives in Australia. The Tribunal is satisfied that the applicant would be able to re-establish himself in Vietnam, given his education and work experience obtained in Australia. The Tribunal accepts that the applicant is an experienced chef from Vietnam.

2. The Tribunal accepts that the applicant has a close relationship with his daughter and would like to stay in Australia to look after her. The Tribunal accepts that the applicant will suffer hardship if separated from his daughter.

3. The Tribunal notes that the applicant was offered employment by BMA Australia Trading Pty Ltd (trading as Hooks at the Yarra) who is an approved business sponsor. The owner of this business gave evidence at the Tribunal’s hearing that the business intends to apply for approval of nomination for a Subclass 482 visa and nominate the applicant for the position of a cook, regardless of whether the applicant’s Subclass 457 visa is reinstated or not. The Tribunal is satisfied that the applicant will not be prevented by the Public Interest Criterion (PIC) 4013 from applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

4. Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently.

5. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

   Whether there are mandatory legal consequences, such as whether cancellation would

   result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the
   Act which prevent the person from making a valid visa application without the Minister’s
   intervention

6. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

7. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

   Whether there would be consequential cancellations under s.140

8. There are no consequential cancellations.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

9. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights.  

10. The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration. However, this consideration does not preclude visa cancellation. According to the primary decision record and the applicant’s oral evidence, his daughter Julia Le resides in Australia with her mother, Ms Hang Thi Thu Duong who is married to Mr Chun Hang Kwok. Julia was granted a subsequent entrant Partner visa as a dependant member of her mother’s family unit. Ms Hang Thi Thu Duong is Julia’s primary carer. There is evidence before the Tribunal that Julia currently attends school in Australia.

11. The applicant gave evidence that he and his daughter lived together in Vietnam from February 2010 until Julia returned to Australia in November 2016. He also stated that Julia’s mother, Ms Hang Thi Thu Duong, gave her consent for Julia to live in Vietnam.

12. While the Tribunal acknowledges that allowing the applicant to remain in Australia would be in Julia’s best interest, the Tribunal is satisfied that she lives in a stable environment with her mother. The Tribunal reiterates that the applicant is not prevented from returning to Australia by PIC 4013 if the new employer obtains nomination approval from the Department. The Tribunal further notes that the purpose of granting a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis and that the applicant’s visa would, but for the cancellation, cease in October 2020 in any case.  

13. Accordingly, the Tribunal gives this consideration some weight in the applicant’s favour.

    The impact on any victims of family violence

14. There is no evidence before the Tribunal regarding this matter.

15. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

    Antonio Dronjic
    Member