Ma (Migration)

[2018] AATA 4943

Ma (Migration) [2018] AATA 4943 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jinhai Ma

CASE NUMBER:  1724253

HOME AFFAIRS REFERENCE(S):           BCC2017/2811830

MEMBER:Karen Synon

DATE:30 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 October 2018 at 8:36am

CATCHWORDS

MIGRATION – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled) – ceased employment with sponsor for more than 90 days – no evidence of new sponsorship application – decision under review affirmed

PRACTICE AND PROCEDURE – no entitlement to a hearing

LEGISLATION

Migration Act 1958 (Cth), ss 116, 359, 359C, 369, 363A

Migration Regulations 1994 (Cth), Schedule 8 condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 October 2017 made by a delegate of the Minister for Immigration and Border Protection 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 3 October 2017 on the basis that the applicant had not complied with Condition 8107(3)(b).

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. The applicant applied for review of the decision to cancel his visa on 6 October 2017 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

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

6. On 3 October 2018, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     The information is from the Department of Home Affairs records and relates specifically to [the applicant]:

   o    You were granted a Subclass 457 visa on 28 January 2014.  It was originally valid to 28 January 2018 but was cancelled on 3 October 2017.  Your visa was sponsored by GUAN FENGXIA.

   o    Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased to be employed by your approved sponsor, the period must not exceed 90 consecutive days.

   o    You ceased being employed by your sponsor on or before 14 April 2017.  On 3 October 2017, the date your visa was cancelled, you had not worked for your sponsor for more than 90 consecutive days.

   o    There is no information to indicate that you recommenced employment with your sponsor.

   o    A recent check indicates that no new relevant business nominations have been approved in respect of you since your visa was cancelled.

   In conducted this review in your case:

   ·We will first consider if there are grounds to cancel your Subclass 457 visa in accordance with s.116 of the Migration Act.

   ·If we determine that there are such grounds, we will then consider if your visa should be cancelled, taking into account all the relevant information.

   This information is relevant because it indicates that:

   · You breached a condition of your subclass 457 visa, and there are grounds for cancelling your visa under s.116(1)(b) of the Migration Act

   ·     There are circumstances which may indicate that your Subclass 457 visa should be cancelled including that:

   §Your Subclass 457 visa was granted to you for the purpose of undertaking particular employment with an approved sponsor and that purpose ceased when you stopped being employed by your sponsor.

   §You have not secured a new approved sponsor, because no new business nomination has been approved for you.

   If we rely on this information in making our decision, we may:

   ·Determine that you breached your visa condition and therefore are there are grounds to cancel your Subclass 457 visa under s.116(1)(b) of the Migration Act.

   ·Decide that your visa should be cancelled.

   You are invited to give comments on or respond to the above information in writing.

   If we determine that there are grounds to cancel your Subclass 457 visa, it will go on to consider if your visa should be cancelled.  In making this assessment, the Tribunal will consider all relevant information, which may include, but is not limited to:

   o    The purpose of your travel to and stay in Australia

   o    The degree of hardship that may be caused by visa cancellation

   o    The circumstances in which the ground for cancellation arose

   o    Your past and present conduct towards the department

   o    Australia’s obligations under international agreements

   o    The impact of cancellation on any victims of family violence

   o    Any other relevant matters

7. The invitation was sent to the applicant’s registered migration agent and authorised recipient’s email address provided in connection with the review.  The applicant was advised that if a response or comments were not provided in writing by 17 October 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The applicant did not provide comments or a response within the prescribed period and no extension was been sought or granted within the prescribed period.

9. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via his authorised recipient at the advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

10. 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

11. 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?

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. In this instance condition 8107 was attached to the applicant’s visa. Condition 8107(3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.

13. On the basis of the information before it the Tribunal finds that the applicant was granted a subclass 457 visa on 28 January 2014 to occupy the nominated position of Chef at GUAN FENGXIA.

14. On 20 September 2017 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa.  The grounds for cancellation were that the applicant had not complied with the Condition contained in paragraph 8107(3)(b) because department records indicated that effective 14 April 2017, he ceased employment with the sponsor, GUAN FENGXIA.

15. The primary decision records that, in response to the NOICC the applicant stated that because he “was in the final stages of gaining a new sponsor it could be argued that the grounds for cancellation do not exist”.

16. The applicant did not give comments or respond to the information put to him in accordance with the provisions of s.359A and s.359(2) of the Migration Act.  Therfore the only information before the Tribunal in relation to the cancellation is that summarised in the primary decision noted above at paragraph 15.  In relation to this correspondence, dated 26 September 2017, the Tribunal notes it was submitted that the applicant:

    [h]ad been searching for a new employer since the cease (sic) of employment with the sponsor GUAN FENGXIA in April 2017.  Because of the current slow economy, new employment has been difficult to find.  [The applicant] has recently found a potential employer who is willing to sponsor him.  They are in the final stages of finalising the employment contract conditions.  Within (sic) this in mind, we can argue that the ground to cancel his visa does not exist.

17. Therefore, relying on the information before it and in the absence of any other evidence provided by the applicant, the Tribunal is satisfied that the applicant ceased employment with his approved sponsor GUAN FENGXIA in breach of visa Condition 8107(3)(b) for a period exceeding 90 consecutive days.  Further, there is no information before the Tribunal that the applicant subsequently resumed his employment with GUAN FENGXIA.  Finally, there is no evidence before the Tribunal that the applicant subsequently became the subject of any other approved nomination within 90 consecutive days of ceasing employment with his approved sponsor.

18. The Tribunal accordingly finds that the applicant has not complied with Condition 8107(3)(b) of his Subclass 457 visa.

19. 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

20. 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’.

21. The applicant has not provided any evidence to the Department or the Tribunal as to why his visa should not be cancelled other than the short response to the NOICC stating that he was in the final stages of finalising an employment contract with a new proposed sponsor. He did not respond to the Tribunal’s invitation issued under section 359(2). Accordingly there are no submissions from the applicant in relation to the factors set out in PAM3.

22. While the applicant appears to have been in Australia to work for the sponsor (GUAN FENGXIA) as a Subclass 457 visa holder, he is no longer in that employment.  There is no evidence to indicate that he is currently the subject of an approved nomination for any other employer and he has not availed himself of the opportunity provided by the Tribunal to provide any relevant information as to his current employment situation.

23. On the evidence before the Tribunal this appears to be the only time the applicant has breached a visa condition.  There is no evidence to indicate the applicant has been uncooperative with the Department.

24. There is no information before the Tribunal that the applicant, or anyone on his behalf, has indicated to the Department or the Tribunal that he, or anybody else, will suffer any hardship if the visa is cancelled.  There does not appear to be any consequential cancellations.  There is no evidence to suggest that the applicant fears returning to his home country, China, or that any international obligations would be breached as a result of a cancellation.

25. Overall the Tribunal is of the view that the appropriate decision is to cancel the applicant's visa.  The Tribunal is mindful that the purpose of the Subclass 457 visa is to fill temporarily a skill shortage.  There is no evidence before the Tribunal to satisfy it that the applicant currently has an approved or pending nomination in place to work in a skilled occupation.  There has been no information provided for any compelling need for the applicant to remain in Australia.  The Tribunal is not aware of the circumstances in which the ground for cancellation arose.  It is satisfied that the applicant has had an invitation to provide any evidence to indicate the ground for cancellation arose in circumstances beyond his control.  He has not taken advantage of this opportunity.  While there is no evidence to suggest the applicant has breached other visa conditions or been uncooperative with the department, he has not availed himself of the opportunity to give evidence as to why the visa should not be cancelled.  The Tribunal is satisfied there are no other consequential cancellations to take into account.  It is satisfied that international obligations will not be breached as a consequence of a cancellation.  It is not satisfied the applicant, or anyone else, will suffer hardship because of a cancellation.  Nor is the Tribunal aware of any particular extenuating or compassionate circumstances affecting the applicant which outweigh the grounds for cancelling the visa.

26. The Tribunal finds that the purpose of the applicant's stay in Australia was to work as a Chef for GUAN FENGXIA on a temporary basis.  The applicant is no longer in this employment.

27. The purpose of granting a subclass 457 visa is to enable a business to sponsor a skilled worker if they 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 employment effective 14 April 2017 and gives this factor significant weight.

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

    DECISION

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

    Karen Synon
    Member