LEE (Migration)

[2017] AATA 2789

LEE (Migration) [2017] AATA 2789 (18 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hyun Keun Lee
Ms Areum Woo

CASE NUMBER:  1709622

DIBP REFERENCE(S):  BCC2016/4164583

MEMBER:Wan Shum

DATE:18 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa.

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

Statement made on 18 December 2017 at 9:51am

CATCHWORDS
Migration – Cancellation – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 (Temporary Work (Long Stay Activity)) – Requirement for period of unemployment to not exceed 90 days – Period of unemployment exceeds 90 days – New occupation different from nominated occupation - Consequential cancellation – Tribunal has no jurisdiction to review consequential cancellations

LEGISLATION
Migration Act 1958, s 48, 116, 140, 362B, 375A, 379A
Migration Regulations 1994, Schedule 8, Condition 8107

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 28 April 2017 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 401 (Temporary Work (Long Stay Activity)) 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 had not complied with a condition of 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. 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 were represented in relation to the review by a registered migration agent. On 17 November 2017, the Tribunal wrote to the applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicants to give evidence and present arguments at a hearing on 6 December 2017. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

5. On 5 December 2017, the Tribunal received a request for the hearing to be rescheduled by email from the applicant’s representative. The reason given for the request was because the applicant is working as a farm hand at Woodlands Ridge Poultry Pty Ltd in Goulburn, the business is very busy and it is “peak season now… [so] they need [the applicant] to do his job and remain part of their farming team”. The Tribunal considered the reasons given for the request but did not agree to the adjournment. The applicants were informed of this later that day and were advised that the hearing would proceed as scheduled. However, the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5). The Tribunal had written to the applicant’s representative to advise that the request for another hearing date had not been granted and that the hearing would proceed. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

6. A s.375A certificate appears on the departmental file, regarding the non-disclosure of information contained in some documents on the file. The Tribunal considers that the information covered by the certificate is either not relevant to the review, or has already been disclosed to the applicant.

7. 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

8. 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.

9. The applicant was granted the Subclass 401 visa on 24 May 2016, nominated by Sydney Sae Byuk Church Inc (the nominator) to work in the position of Religious Worker.  Condition 8107 was attached to the visa. It requires, among other things, that if the person holds a Subclass 401 visa, the holder must not cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified.

10. The applicant was sent a notice of intention to consider cancellation (NOICC) on 27 March 2017, on the basis that he was in breach of condition 8107(4)(a)(c) because the applicant had not worked for the nominator since October 2016. The applicant responded on 11 April 2017 confirming that he had not worked for the nominator since October, and referred to there being some issues with the church and pastor but did not provide any details. Instead, the applicant requested that he be allowed more time to remain in Australia as the music program that he had developed was being run by another church, Sydney Crystal Church. The music program ‘Vitamin Music’ was developed to educate youths and has donated money to an organisation that provides services to disabled persons through missionary services (The World Milal Australia Inc). The applicant also provided documentation regarding the program named ‘Vitamin Music’. He referred to having organised a music fundraising concert for disabled people on 25 June 2016. A letter was attached from the chairman of the organisation regarding his character and the music concert he organised. The applicant explained that he had “tried to report [his] situation to immigration and apply [for] another visa with an agency” but realised the agency was a fraud. The applicant provided a link to an ABC article regarding Eddie Kang and his continued visa-related business operations despite fraud charges. However, aside from this assertion, there is nothing before the Tribunal to indicate or confirm that the applicant had been a client of, or the subject of fraud by, Eddie Kang.

11. On 26 April 2017, the applicant wrote in an email to the department that he was no longer prepared to leave Australia while waiting for a response as he had promised that he would “make various cultural events with students … and musicians and … fundraise for disabled people” through these events. The applicant was seeking “permission to live long term for [his] vision”.

    Does the ground for cancellation exist?

12. 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. As referred to above, condition 8107 applied to the applicant’s Subclass 457 visa and required that if the applicant ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The applicant’s nominator for the visa he held, Sydney Sae Byuk Church Inc, had informed the Department of Immigration on 20 October 2016 that the applicant was no longer working for them and the applicant confirmed in his response to the department that he had not been working there from October 2016. The material before the Tribunal supports a finding that the applicant has ceased to engage in the most recently nominated occupation, program or activity employment. The applicant did not dispute this in his responses to the NOICC.

13. 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

14. 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’.

15. The applicant’s Subclass 401 visa had been granted on the basis that he would be employed by a church. After he ceased working for the nominator in October 2016, he then claimed to have been working for another church. However, his current employer is Woodlands Ridge Poultry Pty Ltd, a commercial poultry business in Goulburn. According to the letter from his employer, the applicant has worked as a farm hand and assistant poultry farmer there since 26 October 2017. In considering the purpose of the visa holder’s travel and stay in Australia, the Tribunal has also considered the applicant’s response to the Department’s NOICC in which he requests for “permission to live long term” in Australia. While the applicant claimed to have a new association with a different church, given his current employment as a farm hand, it does not consider that the applicant could be said to have a genuine intention to stay temporarily in Australia to carry out the occupation or activity for which the Subclass 401 visa had been granted. The Tribunal considers the purpose of the applicant’s travel and stay in Australia is to remain here on a long-term or permanent basis. This is supported by the material provided to the Tribunal, noting that the employer would like him to stay and work for the business “as long as possible”. This is not consistent with a Subclass 401 visa which includes a visa criterion that the applicant has a genuine intention to stay temporarily to carry out the occupation or activity for which he was nominated.

16. The Tribunal has found above that the applicant did not comply with condition 8107. The Tribunal is not aware of any other information as to his compliance with other visa conditions.

17. His wife’s visa was granted on the basis of being a member of his family unit and her visa was cancelled under s.140 as a consequence of the applicant’s visa being cancelled. It is the intended consequence of the legislation that members of the same family have the same visa status. For these reasons, the Tribunal does not consider that the consequential cancellation of his wife’s visa is a reason for setting aside the cancellation. The Tribunal has also had regard to the mandatory legal consequences of a cancellation. The applicant is currently holding a bridging visa E. He will only be subject to detention if he remains in Australia after his last held visa expires. The applicant will be affected by s.48 of the Act if the visa is cancelled; however, the Tribunal considers any impact of this on the applicant and/or his wife does not outweigh the reasons for cancelling the visa as it is the intended consequence of the legislation.

18. There is no evidence to suggest that any international obligations would be breached as a result of a cancellation.

19. The purpose of the Subclass 401 visa is to carry out an occupation or activity for a nominating sponsor for a temporary period, and he has not fulfilled that purpose since October 2016, over a year ago. While the applicant may want to reside permanently in Australia the Subclass 401 visa does not entitle the holder to remain in Australia indefinitely.

20. In relation to the degree of hardship that may be caused by the cancellation of the applicant’s visa, the applicant had referred to the impact on others who were engaged in his music program if he was required to leave. However, there is nothing before the Tribunal to indicate that the applicant is still running the program and how many participants there are who might be affected. The Tribunal does not consider that this is a reason for not cancelling the visa. In terms of his current employer wishing him to remain long term with the business, it may be possible for the employer to sponsor/nominate the applicant directly for another visa. The Tribunal does not consider the possibility of the applicant having to depart Australia after having worked at the farm for less than 3 months is a reason for not cancelling the Religious Worker stream Subclass 401 visa he held.

21. The Tribunal has taken into account his desire to remain in Australia but notes that the Subclass 401 visa is a temporary visa only. It has taken into account that they would need to leave Australia and settle back in Korea, the country of which they are nationals, or elsewhere, after having been granted the Subclass 401 visa in May 2016. However, noting that the visa would have ceased on 31 December 2017 as set out in the delegate’s decision record, it does not consider that it would be of any particular hardship to the applicant and/or his wife.

22. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

23. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa.

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

    Wan Shum
    Member