Lertprasert (Migration)

[2019] AATA 6637

Lertprasert (Migration) [2019] AATA 6637 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Natthariya Lertprasert
Mr Pilantana Boonyuen

CASE NUMBER:  1924214

HOME AFFAIRS REFERENCE(S):          BCC2018/5061785

MEMBER:Antoinette Younes

DATE:12 December 2019

PLACE OF DECISION:  Sydney

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

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

Statement made on 12 December 2019 at 10:05am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – non-appearance before the Tribunal – ground for cancellation – convicted of an offence – dishonestly obtain financial advantage by deception – Intensive Correction Order imposed – consideration of discretion – employment terminated – purpose of visa not fulfilled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), r 2.43; 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 26 August 2019 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)(g) on the basis that the applicant has been convicted of an offence.

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. 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.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   HEARING INVITATION

6. On 3 October 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but 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 at 10.30am on 11 December 2019. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration. The applicant did not respond to the hearing invitation.

7. On 4 and 10 December 2019, the Tribunal sent to the applicant SMS to the telephone number provided by the applicant in the application for review reminding her of the scheduled hearing. The applicant did not appear at the hearing.

8. The Tribunal is satisfied that it has given the applicant a fair opportunity to attend a hearing and the Tribunal has no explanation for the applicant’s lack of attendance at the hearing scheduled at 10.30am on 11 December 2019.  In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   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?

   Section 116(1)(g) - prescribed ground

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

11. 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)(oa) is relevant.

12. Regulation 2.43(1)(oa) states:

    in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

13. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record in which the following matters are noted:

    ·Information from the New South Wales Police indicates that on 19 July 2019, the applicant was convicted in the Downing Centre Local Court of the offence of “dishonestly obtain financial advantage etc by deception”.

    ·The Court imposed a penalty of an “Intensive Correction Order for 16 months commencing on 19 July 2019 and concluding 18 November 2020, supervised by community corrections service… Community service work: 250 hours… Compensation: $9862 ”.

14. On 6 August 2019, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC/Notice). The Notice identified the conviction of 19 July 2019, as well as the penalty to give rise to the ground for cancellation as prescribed in r.2.43(1)(oa). The Notice also provided details about the discretionary matters that would be taken into consideration in deciding whether to cancel the applicant’s visa. The applicant did not respond to the Notice.

15. On the evidence before, the Tribunal finds that the applicant has been convicted of the offence of “dishonestly obtain financial advantage etc by deception” as contemplated by r.2.43(1)(oa). The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(g) 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

16. 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’.

    ·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

17. The delegate’s decision record indicates that on 16 September 2015, the applicant was granted the subclass 457 visa (expiry date of visa 16 September 2019). On 5 October 2018, the applicant’s sponsor advised the Department that the applicant’s employment was terminated on 10 August 2018. The decision record further indicates that since the termination of the applicant’s employment, she has not lodged any further nomination for employment as required by the subclass 457 visa.

18. The purpose of the 457 visa was to enable the applicant to work for an approved sponsor. The information before the Tribunal indicates that the applicant’s employment was terminated and consequently the Tribunal is satisfied that although the applicant’s visa was granted for the purpose of working, this is no longer the case. 

19. There is no evidence before the Tribunal of a compelling need for the applicant to remain in Australia.

20. The Tribunal gives this aspect significant weight in favour of cancellation of the applicant’s visa.

    ·the extent of compliance with visa conditions

21. As noted in the delegate’s decision record, the applicant’s subclass 457 visa was subject to conditions of 8501 – Health Insurance, and 8107(3)(b) – Work Limitation.

22. Condition 8107(3)(b) provides that “if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days”.

23. The applicant’s employment with her sponsor was terminated on 10 August 2018 and this period exceeds 60 consecutive days. Therefore the applicant has not complied with condition 8107(3)(b).

24. The Tribunal gives this aspect significant weight in favour of cancellation of the applicant’s visa.

    ·  degree of hardship that may be caused (financial, psychological, emotional or other hardship)

25. The applicant did not respond to the Notice and she did not attend the hearing or provided any further material in support of her application for review.

26. The delegate’s decision record indicates that the applicant has resided in Australia since 2005 as the holder of a number of temporary visas. The decision record further indicates that the applicant has a spouse in Australia. The Tribunal appreciates that the cancellation of the applicant’s visa may cause financial, psychological, and emotional hardship. It is reasonable to suggest that given the length of time that the applicant has resided in Australia, she would have some ties within the Australian community and the Tribunal has taken this matter into consideration.

27. The Tribunal gives this aspect some weight in favour of the applicant.

    · circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

28. The applicant has been convicted of the offence of dishonestly obtaining financial advantage by deception. This gave rise to cancellation pursuant to s.116(1)(g).

29. There is no evidence before the Tribunal to suggest that the conviction was beyond the applicant’s control.

30. The Tribunal gives this aspect significant weight in favour of cancellation of the applicant’s visa.

    ·past and present behaviour of the visa holder towards the department

31. The applicant did not respond to the Notice.

32. The Tribunal gives this aspect weight in favour of cancellation of the applicant’s visa.

    ·whether there would be consequential cancellations under s.140

33. As noted in the delegate’s decision record, the applicant’s husband is a secondary applicant and pursuant to s.140, his visa would be cancelled as a consequence of the cancellation of the applicant’s visa.

34. The Tribunal gives this aspect some weight in favour of the applicant.

    ·  whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

35. The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. To minimise or avoid those potential consequences, the applicant could voluntarily depart Australia.

36. The Tribunal considers potential detention and removal from Australia to be intended legislative consequences and in the applicant’s case and based on the information before the Tribunal, the Tribunal gives this aspect neutral weight.

    ·  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

37. There is no information before the Tribunal to suggest that any children would be impacted or that Australia would be in breach of any of its non-refoulement obligations in case of cancellation. 

38. The Tribunal gives this aspect neutral weight.

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

39. The subclass 457 visa is a temporary visa. In any case, there is no information before the Tribunal to suggest that the applicant has strong family, business or other ties in Australia.

40. The Tribunal gives this aspect neutral weight.

    ·any other relevant matters

41. The Tribunal is not aware of any other matters relevant to its consideration.

42. The Tribunal has carefully considered the material before it individually and cumulatively. On balance, the Tribunal is satisfied that although there are aspects in the applicant’s favour, the totality of the evidence weighs heavily in favour of cancellation.

43. Considering the circumstances as a whole and on balance, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

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

    Antoinette Younes

    
    Senior Member