Nguyen (Migration)

[2020] AATA 3588

Nguyen (Migration) [2020] AATA 3588 (19 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Son Truong Nguyen

Mrs Thi Thuy Van Vu

Ms Thuy Anh Nguyen

CASE NUMBER:  1927858

HOME AFFAIRS REFERENCE(S):          BCC2019/1575383

MEMBER:Andrew McLean Williams

DATE:19 June 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 19 June 2020 at 4:43pm

CATCHWORDS
MIGRATION– cancellation – Temporary Business Entry (Class UC) visa – Subclass 457– breach of the conditions were beyond his control – nomination approved – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 2

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 2 October 2019 made by a delegate of the Minister for Home Affairs (‘the Minister’) to cancel the first-named applicant’s (‘the applicant’) Subclass 457 (Temporary Work (Skilled)) visa, pursuant to 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 ceased employment with his nominating sponsor, Food Craver Two Pty Ltd for a period exceeding 60 days, thus ceasing to comply with a condition of the Subclass 457 visa, thereby giving rise to a power to cancel the visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should in fact be cancelled under s.116(1)(b). In this regard, there is a discretion arising because of the use of the word ‘may’ in s.116(1) of the Act. In the particular circumstances of this case the applicant seeks that the Tribunal exercise the discretion to not cancel the visa, notwithstanding the applicant conceding that a ground for cancellation exists in his case.

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, Mr Son Truong Ngyuen. The other applicants, who are each family members of the applicant, had their visas automatically cancelled as a consequence of the visa cancellation in the case of the applicant. In other words, their visas were cancelled not in consequence of any decision by a delegate of the Minister, but rather by force of the operation of s.140(1) of the Act, which made the cancellation of those other related family visas self-executing, in the circumstance of the cancellation of the 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 cancellations in respect of the other-named applicants under s.140(1), the Tribunal now has no jurisdiction in respect of either of them.

5. The applicants appeared before the Tribunal on 10 March 2020 to give evidence and present submissions. The Tribunal also received evidence from a Mr Lam Tan Ngo, who is an authorised representative of the Trustee for TP Trust, trading as Café 63 Sandgate (‘Café 63’).  Café 63 has advised its willingness to sponsor the applicant for the occupation of Café/Restaurant Manager (ANZSCO 141111), which is the same occupation for which the applicant was granted his original Subclass 457 visa when sponsored by Food Craver Two Pty Ltd.  Since the Tribunal hearing on 10 March 2020, Café 63 has been approved to sponsor the applicant.  A letter from the Department confirming that approval was provided to the Tribunal on 15 June 2020.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicants were represented in relation to the review by their registered migration agent, Ms Priya Patel (MARN 1382281) of Patel Migration. The representative prepared detailed written submissions prior to the hearing and also attended the hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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, 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. It is at this stage of the assessment that the question of the exercise of the discretion arises.

   Does the ground for cancellation exist?

9. 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 condition 8107(3)(b) attached to the applicant’s visa. This condition requires that the applicant must not cease employment with their nominating sponsor for any period exceeding 60 days.

10. There is no factual dispute that there has been a non-compliance with condition 8107(3)(b).  The applicant also rightly concedes that, absent a favourable exercise of the discretion, non-compliance with condition 8107(3)(b) founds a ground for cancellation of his visa.

11. The applicant was originally sponsored in the position of Café/Restaurant Manager by 3 N Pty Ltd (trading as ‘the Red Lotus Vietnamese Restaurant’) and arrived in Australia on a Subclass 457 Visa on 26 February 2012. 3 N Pty Ltd subsequently sold its business, to  Food Craver Two Pty Ltd in 2016, and a new Subclass 457 visa for the applicant was lodged in 2016, with Food Craver Two Pty Ltd becoming the new sponsor, in lieu of 3 N Pty Ltd.  A new visa was granted, which ordinarily would have remained valid until 12 January 2021.

12. In early to mid 2017, Food Craver Two Pty Ltd started to face financial difficulties.  Initially, the applicant was requested by his employer to take a 3-month period of unpaid leave.  During this period, the applicant (who speaks virtually no English) remained at home, and relied on his wife’s income for financial support.  The applicant was then advised by his employer that the 3-month period of unpaid leave had been extended by them unilaterally, to now be for 6 months, whilst Food Craver Two Pty Ltd underwent what it described to the applicant as being “financial restructuring”.  The applicant periodically ‘checked in’ with his employer, however received no information contrary to what he had been told by them previously.  Accordingly, the applicant continued to wait at home and to assume that he remained on unpaid leave. 

13. Wholly unbeknown to the applicant, Food Craver Two Pty Ltd wrote to the department of advised that the applicant had ceased his employment on 23 July 2017.  This information was not ever conveyed to the applicant, who continued to be unaware that he no longer had a nominating employer until December 2017.  By the time that the applicant did became aware of that, more than 60 days had already passed.  Therein lies the breach of condition 8107(3)(b).

14. On 30 August 2019 the Department sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’) in respect of his visa, by email. Yet, the applicant says that he rarely looks at email and did not read this until 1 October 2019. On 2 October 2019 a delegate of the Minister made a decision under s.116(1)(b), to cancel the applicant’s subclass 457 visa. Only at that stage did the applicant seek the assistance of a migration agent.

15. As indicated above, the applicant concedes that a ground for cancellation does exist, by reason that he ceased his employment for a period greater than 60 days with his sponsoring employer, thus breaching condition 8107(3)(b).  Yet, the applicant submits that the circumstances of that breach need to be considered in context, in that he was wholly unaware that his employment had been terminated, until after the expiry of more than 60 days.  The applicant says that had he been aware in time of the cessation of his employment then far greater effort could have been made by him to look for an alternate sponsoring employer, prior to the expiration of 60 days.  The applicant says that he commenced the search for an alternate employer who could also sponsor him in early January 2018.  He says that it was not difficult to find potential employers, however it proved to be a considerable challenge to find an employer who would also act as his nominating sponsor for visa purposes.  It was not until comparatively recently that he was able to obtain such an offer, from Café 63.

16. The Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does arise.

    Consideration of the discretion

17. It follows from what is recorded above that the applicant seeks that the Tribunal exercise the discretion in s.116(1) in his favour to not exercise the power of cancellation. 

18. There are no mandatory matters specified in either the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has however had regard to the total circumstances of this case, including matters raised by the applicant, and matters contained in the Department’s Procedures Advice Manual (‘PAM3’), ‘General visa cancellation powers’.

19. In the context of undertaking this assessment the Tribunal observes the following as important determinative factors:

    ·Cancellation of the applicant’s visa would result in consequential cancellations for both the applicant’s wife and daughter under s.140 of the Act, as well as to make each of the applicant’s unlawful aliens subject to immigration detention.

    ·The applicant has been in Australia with his wife and daughter since 2012.  During this time the applicant’s daughter Thuy has completed all of her high school education and is now studying a Diploma of Community Services at TAFE Queensland with a view towards her eventually undertaking a Bachelor of Nursing.  In the event that the applicant was required to return to Vietnam, Thuy would also need to return to Vietnam, as she is fully financially dependent on her parents. Family finances are modest, and insufficient to enable Thuy to remain in Australia independently to complete her studies.  A return to Vietnam would also terminate Thuy’s studies mid-stream. Thuy would then have considerable difficulty in re-entering a program of studies in Vietnam directed towards a career in nursing, given that all of her high school education had been undertaken in Queensland.

    ·The applicant submits that he and his family would face extreme financial difficulties, if required to depart Australia.  The applicant submits that his family already face straightened financial circumstances on account the lengthy period during which they were required to subsist solely on his wife’s income as a kitchenhand, and that both he and his wife would then likely face a lengthy period of unemployment in Vietnam, given both their age and lengthy period living outside Vietnam.

    ·The applicant’s only breach of the conditions applicable to his visa has arisen in circumstances that were beyond his control.  In relation to that evidence, the Tribunal accepts the Applicant’s testimony.  The Tribunal notes that the PAM3 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.

    ·Since the Tribunal hearing on 10 March 2020, Café 63 has been approved to become the new employment sponsor for the applicant.

20. Now considering all of these circumstances as a whole, the Tribunal concludes that the applicant’s visa should not be cancelled.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Andrew McLean Williams
    Member