Lin (Migration)

[2019] AATA 6864

Lin (Migration) [2019] AATA 6864 (13 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jun Lin
Ms Yanjie Zhang
Mr Yukun Lin

CASE NUMBER:  1810250

HOME AFFAIRS REFERENCE(S):          BCC2015/3586262

MEMBER:Michelle East

DATE:13 December 2019

PLACE OF DECISION:  Perth

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 other applicants.

Statement made on 13 December 2019 at 2:20pm

CATCHWORDS

MIGRATION – cancellation – Subclass 457 (Temporary Work (Skilled)) – remitted back to the Tribunal by FCC – jurisdictional error – no response received by the Tribunal within the timeframe, or at all, subsequent to the hearing – applicant ceased working with his sponsor evidence led at the previous Tribunal hearing as well as this one confirms that the applicant did not commence working within 90 days – decision under review affirmed to cancel the first named applicant – no jurisdiction with respect to the other applicants.

LEGISLATION

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

Migration Regulations 1994 (Cth), r.2.43(1)(i), Schedule 8, condition 8107(3)(b)

CASES

Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400

Tien & Ors v MIMA (1998) 89 FCR 80 at 96

Krummey v MIAC (2005) 147 FCR 557

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 December 2015 made by a delegate of the Minister for Immigration and Border Protection 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)(a) of the Act on 16 December 2015. The first named applicant (‘the applicant’) sought review of this decision with the Tribunal and a decision was made on 30 June 2016 to affirm the decision under review. The applicant applied for judicial review of this decision with the Federal Circuit Court of Australia and on 5 April 2018, His Honour, Judge Kendall ordered writs of certiorari and mandamus be issued to the Tribunal and noted that the Minister conceded the Tribunal had denied the applicant procedural fairness constituting a jurisdictional error in circumstances where the delegate of the Minister had issued a certificate pursuant to section 375A of the Act on 10 June 2016 and the existence of the certificate was not disclosed to the applicant in the course of the review by the Tribunal. It was conceded that some of the documents subject of the certificate were relevant, or potentially relevant to the issues arising on the review by the Tribunal. The matter has been remitted to a differently constituted Tribunal and the issue in the present case is whether the 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 other applicants’ visas were 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 those other visas 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 them.

4. The applicant appeared before the Tribunal on 1 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. 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

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)(a). 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.

   History of applications

7. As noted above, this matter was previously heard by a differently constituted Tribunal which made a decision on 30 June 2016 to affirm the decision under review to cancel the applicant’s visa.

8. After seeking review in the Federal Circuit Court, the matter was remitted back to the Tribunal due to jurisdictional error.  The grounds for jurisdictional error were for a denial of procedural fairness due to the failure to disclose the existence a non-disclosure certificate issued by the Department pursuant to section 375A of the Act.

9. This Tribunal at the hearing explained the basis for the remittal from the Federal Circuit Court.  The Tribunal then discussed the existence of the 375A non-disclosure certificate (the Certificate) and provided the ‘gist’ of the information to which it related.  The Tribunal was of the preliminary opinion that the Certificate was valid and invited submissions from the applicant as to its validity

10. The Tribunal then explained that the material pursuant to the Certificate was therefore protected and it was required to restrict the release of the material.  However, given that some of the information was potentially relevant to the application under review the Tribunal was obliged to provide the gist of that information to the applicant.

11. The gist of the information was provided to the applicant pursuant to section 359AA of the Act.  That is, the information covered by the Certificate would be the reason or part of the reason for affirming the decision under review.

12. The Tribunal explained that the material covered by the Certificate was a hand-written record from the Department’s officers of their site visit to the applicant’s employer.  The only material that was of any relevance was that recorded in both the Notice of Intention to Consider Cancellation (NOICC) and also the decision of the delegate, that is, that officers of the Department conducted a site visit to Ausray Industries Pty Ltd on 26 March 2015 and the officers found that the premises were locked up with no sign of activity indicating to the officers that the premises had been vacated.

13. The applicant was given a further 7 days within which to provide submissions as to the validity of the Certificate and to the potentially adverse information, however, no response was received by the Tribunal within the timeframe, or at all, subsequent to the hearing.

    Does the ground for cancellation exist?

14. 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 8107(3)(b) 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 90 consecutive days. In this instance condition 8107 was attached to the applicant’s visa which was granted on 22 January 2013 and would have been valid until 22 January 2017 (without the cancellation).

15. The delegate cancelled the visa under s.116(1)(a) of the Act. A visa may be cancelled under this section if the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

16. There is some support for the proposition that the Tribunal is not confined to considering the ground of cancellation relied on in the primary decision. In Krummey v MIAC (2005) 147 FCR 557, the grounds for cancellation considered by the delegate and the Tribunal were those in s.116(1)(a) and (b). In the Full Federal Court, it was submitted that the Tribunal’s findings did not justify the conclusion of a change of circumstances within the meaning of s.116(1)(a), however, the findings fell within s.116(1)(g) and r.2.43(1)(i). The Court noted that it would have been open to the delegate and the Tribunal to consider cancelling the visa under s.116(1)(g) and r.2.43(1)(i).

17. The Tribunal considers that this decision supports its view that the Tribunal is not limited to the particular ground or grounds considered by the delegate and/or those described in the s.119 notice.

18. The Tribunal asked the applicant to explain to the Tribunal when he ceased working with Ausray Industries Pty Ltd.  The applicant was unable to give a clear response to this question.  Initially he said he didn’t know that the company was under liquidation and kept working there until September/October 2015.  When the Tribunal pointed out the clear inconsistency with the evidence given to the previously constituted Tribunal as outlined in paragraph 20 of that decision, the applicant said he didn’t come to the Tribunal previously, instead having gone to an arbitration.  The Tribunal stated that he did have a previous hearing in 2016 and although it may have been in different hearing rooms than the ones currently occupied, it was nonetheless the same Tribunal.  The applicant then responded that he couldn’t really remember what he’d said to the previous Tribunal at that hearing.

19. The Tribunal gives greater weight to the evidence given at the previous Tribunal hearing.  It is closer in time to the events in question and the applicant’s memory is likely to be more reliable in those circumstances.  The applicant conceded in his oral evidence that his memory wasn’t clear on the dates.  The Tribunal therefore finds that the applicant ceased working with his sponsor in July 2015.

20. The Tribunal then referred to the applicant’s response to the NOICC dated 9 December 2015 wherein his representative stated that he had secured a new nomination by another company on 21 October 2015 and therefore was within the 90 day time period.

21. The Tribunal explained that condition 8107(3)(b) provides that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.  The lodging of a new nomination by a prospective employer does not have the effect of stopping the prescribed period of 90 days.

22. The Tribunal finds that the applicant ceased working with his sponsor in late July 2015.  Evidence led at the previous Tribunal hearing as well as this one confirms that the applicant did not commence working within 90 days.

23. The Tribunal therefore finds that the applicant did not comply with condition 8107(3)(b) of his visa.

24. 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

25. 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 Procedural Instructions (previously known as PAM3) ‘General visa cancellation powers’.

26. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.  Specifically, the Courts have held that the Procedural Instructions 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 the Procedural Instructions cannot go beyond the wording of the legislation, even where they are favourable to an applicant.

27. Nevertheless, the Tribunal considers that the policy guidelines in the Procedural Instructions 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 and whether the visa holder has a compelling need to travel to or remain in Australia

28. The subclass 457 visa is for the skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. There is no other permitted purpose for holding a 457 visa.

29. Based on the evidence before it, the Tribunal is satisfied that as at the day of its decision, the applicant is not working in the nominated position with an approved standard business sponsor. 

30. 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 was a temporary visa of limited duration related to working for a particular sponsor in the nominated skilled occupation.  The Tribunal finds that this purpose no longer exists because the applicant ceased working in the nominated position in August 2015 and the sponsor’s nomination has expired.

31. As noted before, the applicant is neither the subject of an approved nomination, nor the subject of an application for approval of a nominated position by a standard business sponsor or party to a labour agreement.  According to the delegate’s decision and the applicant’s oral evidence, a fresh nomination was lodged, however this was unsuccessful.

32. In considering whether the applicant has a compelling need to travel to or remain in Australia, the applicant said that his son is currently in year 12 and completes his school education this year.  His son is about to turn 18.  Furthermore, he said that he thought it would be difficult for him to get a job in China as a welder but was unable to explain why.

33. The Tribunal acknowledges that there may be some difficulty in the applicant and his family returning to China because of job opportunities there, but does not consider this to be a compelling reason not to cancel the applicant’s subclass 457 visa.  The Tribunal notes the applicant’s son would have now completed his schooling.

34. The Tribunal gives this factor substantial weight in favour of its discretion to cancel the visa.

    The reason for and extent of the breach

35. There is no evidence before the Tribunal to suggest that the applicant has not otherwise complied with the conditions of his 457 visa or current bridging visa.  Prior to his sponsoring owner entering liquidation, thereby terminating the applicant’s employment, the applicant did not voluntarily cease his employment.  Furthermore, he made genuine attempts to secure a new sponsor.

36. The Tribunal considers this factor weighs in favour of not exercising its discretion to cancel the visa.

    The circumstances in which the ground of cancellation arose

37. The Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant and are to that extent beyond his control.  The Tribunal gives this some weight in favour of not exercising the discretion to cancel the visa.

    The degree of hardship (financial, psychological, emotional or other) that may be caused to the visa holder and any family members

38. The applicant said he was qualified as a welder but would find it hard to find employment in China due to his age.  When the Tribunal queried the applicant what he meant by this he spoke about not qualifying for an Australian visa because he was over 45 years old.

39. The applicant gave evidence of his own family as well as his wife’s in China.  He said his son is currently completing year 12 and is due to turn 18 shortly.

40. The Tribunal notes that at the date of its decision the applicant’s son would have completed his schooling.

41. The applicant said he had not been working since having his visa cancelled and therefore has already incurred financial hardship.  He said he borrowed money from his wife’s family, has used his savings to live and has also borrowed money here.

42. The Tribunal accepts that leaving Australia may involve some hardship to the applicant and his family, however balanced against this is the fact that the applicant came to Australia on a temporary visa which creates no expectation of remaining in Australia permanently.  It was designed to allow skilled workers to come to Australia and work for an approved sponsor for up to 4 years.

43. Overall, the Tribunal gives this factor some weight in favour of its decision to cancel the visa.

    The visa holder’s past and present behaviour toward the Department

44. There is no evidence before the Tribunal that the applicant has breached any other visa conditions or had adverse behaviour towards the Department.  The Tribunal gives this some weight in favour of not exercising its discretion to cancel the visa.

    Any consequential cancellations that may result

45. The Tribunal notes that the applicant’s wife and son were granted visas on the basis of being family members of the family unit of the applicant, who is the primary visa holder.

46. The applicant gave evidence that he has the family support of both his and his wife’s family in China.  The Tribunal acknowledges that the son has just completed his schooling and may find transitioning back to China difficult.

47. The Tribunal gives this some weight in favour of not exercising its discretion to cancel the visa.

    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 applicant from making a valid visa application without the Minister’s intervention

48. The applicant is currently on a bridging visa as a result of his review application.  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 so, he has the opportunity to depart Australia.  If he fails to do so, this may result in detention or removal action, but this is not a necessary consequence of the cancellation decision.  The Tribunal is satisfied that the applicant has applied for and been granted a bridging visa that would continue to be available to the applicant if he needs to make arrangements to depart or to lodge a judicial review application in the event that this review is unsuccessful.

49. The Tribunal is mindful that section 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 section 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 skill visas. This limits the visa applications which can be made by the applicant whilst onshore. However, these are the intended legislative consequences of the cancellation and they are consistent with the objectives of the migration program.

50. The Tribunal gives this factor some weight in favour of its discretion to cancel the visa.

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

51. 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 (ICCPR).

1. There is no evidence before the Tribunal to suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.

2. The Tribunal has considered the rights of the child as a primary consideration and notes the applicant’s son who has just completed his schooling and will shortly turn 18.  There is no evidence before the Tribunal to suggest that the applicant’s son’s return to China would be in breach of the CRC.  Whilst it may be desirable for him to remain in Australia and seek to continue with tertiary study and/or obtain work here, him not being able to do so does not amount to a breach of Australia’s international obligations.  The Tribunal also notes that the applicant’s son will shortly turn 18 at which time other visa options may be available to him.

3. The Tribunal gives this factor some weight in considering its discretion to cancel the visa.

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

   DECISION

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

6. The Tribunal has no jurisdiction with respect to the other applicants.

   Michelle East
   Member