Nguyen (Migration)

[2019] AATA 5762

Nguyen (Migration) [2019] AATA 5762 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dang Khoa Nguyen
Mrs Thi Thu Huong Do
Mr Khoi Nguyen Nguyen

CASE NUMBER:  1916066

HOME AFFAIRS REFERENCE(S):          BCC2019/231695

MEMBER:Jennifer Cripps Watts

DATE:28 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 28 August 2019 at 4:24pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Building Associate – ceased employment with sponsor for more than 90 days – English language communication issues – did not take steps to remedy situation – lack of evidence – education of child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Condition 8107

CASES
Ibrahim v MHA [2019] FCAFC 89
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 14 June 2019 made by a delegate of the Minister for Home Affairs (the delegate) to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) 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 the visa, 8107(3)(b), which requires that if he ceases employment with the sponsor of his visa (having met the requirements of subclass 457.223(2) or (4), as in force before 18 March 2018), the period during which he ceases employment must not exceed 90 consecutive days. 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 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, his wife and son attending the hearing on 27 August 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.

6. 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

7. 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.

8. The applicant was told at the beginning of the hearing that the Tribunal is required, firstly, to reach a view about whether or not the ground for cancellation is made out and, if satisfied the ground does exist, go on to consider discretionary matters that may weigh in favour of not cancelling the visa.  He was told that the Tribunal would consider all relevant matters after the hearing before making a decision.

   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 if the applicant ceases employment with the sponsor of his visa (having met the requirements of subclass 457.223(2) or (4), as in force before 18 March 2018), the period during which he ceases employment must not exceed 90 consecutive days.

10. The applicant applied for a Subclass 457 visa on the basis of having an approved nomination by a standard business sponsor, Sphere Projects Pty Ltd (the sponsor).  The nomination, identifying the applicant in the occupation of Building Associate (ANZSCO 312112), was approved on 18 July 2015.  The applicant’s 457 visa was granted on 18 July 2015 and, but for the cancellation of the visa on 14 June 2019, would have ceased naturally on 18 July 2019, a little over a month ago. 

11. The sponsor advised the Department in writing that on 21 August 2018 the applicant had ceased employment with them.  There has been no claim made or evidence provided that the applicant has returned to work for the sponsor or that he found another sponsor.  The applicant gave oral evidence, at his Tribunal hearing, that he ceased work with the sponsor in the nominated occupation in around April or May 2018, essentially because he was under pressure to do business and communicate in the English language which he is not competent in to an advanced level.  By way of example, he said at the hearing if the interpreter had not been there, he would ‘not understand the detail’ of the questions he was being asked.

12. Having been notified by the sponsor in writing that the applicant had ceased work with them, on 14 March 2019 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his visa inviting him to comment.  The applicant responded to the NOICC on 19 March 2019 requesting that he be given ‘a few weeks’ to make arrangements, in particular relating to his son’s schooling (in Vietnam).  On 24 April 2019, the applicant applied for a student guardian visa relating to his son (the third named applicant), which he said at the hearing was still pending. 

13. The applicant provided the Tribunal with a copy of the delegate’s decision which contains information relating to the applicant ceasing work with the sponsor.  On the oral evidence provided by the applicant at the hearing, he does not dispute that he ceased employment with the sponsor no later than 21 August 2018, as the sponsor notified.  However, on his oral evidence, he ceased working for the sponsor at least three months prior, in May, or even possibly April 2018.

14. Having considered all relevant matters and for the reasons given, 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

15. 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’.

16. The applicant said he and his son first arrived in Australia in around October 2010 holding, as a dependant, a Subclass 576 foreign affairs or defence sector visa, issued to his wife (the second named applicant in this review) for the purpose of the visa holder studying in Australia.  He said his wife arrived about two months later, in December.  The applicant’s son, born in 2004, who was granted a 576 visa as a member of the applicant’s family unit (which requires that any school age children attend school), was of school age and it is submitted, and is accepted, that he has been attending school in Australia from about the time of his arrival up to the time of this decision.

17. The Tribunal was told that once the second named applicant in this matter finished her study in 2015, it was a condition of the visa that she return to Vietnam for two years, which she did.  The applicant and his son remained in Australia holding the Subclass 457 visa that is the subject of this review.  The applicant’s wife returned to Australia in October 2018, holding the 457 visa granted in 2015, and all three members of the family are currently residing in the Australian Capital Territory.

18. The applicant, on three occasions in 2019, wrote to secondary schools in Vietnam seeking enrolment for his son (the third named applicant).  He has provided the Tribunal with the written applications and responses:

    a.Minh Hai Secondary School – 12 April 2019

    b.Ban Yen Nhan Town Secondary School – 26 April 2019

    c.Duong Phuc Tu – 2 August 2019

19. All three schools refused the applications, in writing, essentially because they were not satisfied that the applicant’s son could write at an acceptable level in the Vietnamese language.  The applicant provided copies of his son’s academic transcripts from Campbell High School in the Australian Capital Territory.

    Purpose of the applicant’s travel and stay in Australia and need to remain in Australia

20. The purpose of the applicant’s stay in Australia, since being granted the Subclass 457 visa that is the subject of this review was, relevantly and among other things, to work in the nominated occupation of Building Associate for the sponsor.

21. The sponsor notified the Department on 21 August 2018, in writing, that the applicant had ceased working there.  The applicant himself said at the hearing that he ceased working for the sponsor some months earlier, in April or May 2018. 

22. The applicant was sent an NOICC on 14 March 2019 which he responded to on 19 March 2019 and, on 24 April 2019, said he applied for a student guardian visa before his 457 visa was cancelled.  It was cancelled on 14 June 2019.  The applicant’s purpose of stay in Australia, from 24 April 2019, has been to obtain a positive outcome in the student visa application to remain residing in Australia with his son until he finishes his Higher School Certificate (HSC). 

23. The applicant submitted at the hearing that the most important thing he wants considered is his son’s schooling and asked that he be given a chance to ensure that his son completes high school in Australia.  He is currently in Year 10.    

24. A student guardian visa, if granted on the basis that the applicant meets the primary criteria, including that he genuinely intends to stay in Australia temporarily, would enable the applicant to stay in Australia for the same length of time as the nominating student (his son) or until his son turns 18 years of age (in January 2022).

    Extent of compliance with visa conditions

25. The applicant has been, for more than a year, non-compliant with the conditions of his Subclass 457 visa.  He has not worked in the nominated occupation for the sponsor since around April 2018 and, although he said he tried to find another sponsor, there is no verifiable evidence that this is the case.  He applicant did not find a new sponsor before his Subclass 457 visa was cancelled in June 2019.

26. The Tribunal is satisfied that the applicant knew he was non-compliant with the condition requiring him to work for the sponsor and that he made no attempts to notify the Department of his changed circumstances.  The applicant said at the hearing that he was ‘living in a terrible moment and didn’t know what to do’.  This indicates to the Tribunal that he turned his mind to what he should do and appears to have decided not to take any steps to regularise his visa status until he applied for the student guardian visa on 24 April 2019, nor did he inform the Department of his changed circumstances at any time.   The applicant said at the hearing that he was aware that his visa could be cancelled at any time. 

27. The Tribunal considers that the claim that he tried to find another sponsor appears to be somewhat inconsistent with the concern the applicant said he had about his visa being cancelled and the claim, in his oral evidence, that he was too stressed about his situation, including the change to his work conditions (having to speak more English because of increased work with government departments), loss of self-confidence and anxiety about his son’s study, to undertake any other work. 

    Degree of financial, psychological, emotional or other hardship that may be caused

28. The applicant appeared to the Tribunal to be genuinely very stressed about the situation he and his family are in, brought about by his visa cancellation, relating mainly to the continuation of his son’s schooling in Australia.  The Tribunal has considered the right of the applicant’s son to have access to education.

29. The applicant provided the documents referred to above, from the three schools in Vietnam, were the applications for enrolment were refused because of the inability of the applicant’s son to write in the Vietnamese language.  Evidence was given at the hearing that his son’s education is a very serious issue for his family, that his son has already studied in Australia for nine years, from Year 2, and that he had only done a few months of schooling in Vietnam prior to this.  The applicant said that there is a very big difference between the Vietnamese and Australian education systems and, because his son cannot write in Vietnamese he would be excluded from the public education system in Vietnam.

30. The applicant was asked at the hearing whether, in addition to applying to three Vietnamese secondary schools, he had considered any bilingual or international schools where the teaching may be in English.  The applicant said that the international schools are not very popular and that he thinks they are better suited to students who start in years 1 to 3.  The Tribunal’s view, on this response, is that the applicant gave some consideration to bilingual or international schools where English is used as an alternative to the Vietnamese system but that he does not appear to have explored it fully as a real option.  While understanding that it is possible that such a private school option may be more expensive than a state education in Vietnam, the applicant has made no claim that he is in financial stress.

31. The applicant, who seemed to know that the Vietnamese system does not cater for non-Vietnamese speaking students (such as his son), was asked, as the family resided in Australia on temporary visas, why they would not have ensured that their son learned and maintained the ability to read and write Vietnamese in the event that they were required to depart Australia when their temporary visas ceased.  He said that he and his wife tried but they don’t have the necessary skills.  The applicant said earlier at the hearing that his wife undertook study in biotechnology in Australia and the Tribunal does not accept, at the very least, that she (or the applicant) would not have some ability, if sufficiently motivated, to have taught their son how to write in Vietnamese in their time in Australia since 2010 or make arrangements for someone to teach him.

32. The applicant worked in the building industry and, before that said he worked in manual jobs such as kitchen hand and cleaner.  The applicant gave evidence that his wife recently returned to Vietnam for two years to comply with visa conditions where she worked in an agricultural biology centre and that upon her return to Australia in October 2018 she obtained work in a similar industry or position.  While in Vietnam, the applicant said his wife rented somewhere to live as they do not own property in Vietnam.  The Tribunal understands that cancellation may cause the applicants to experience some degree of inconvenience or even hardship.

33. However, their individual work skills and history of employment indicate to the Tribunal that they are likely to be employable in Vietnam.  The hardship that may be experienced, primarily by the third named applicant if he was unable to attend a school in Vietnam that only taught in Vietnamese, would be significant for him and the secondary hardship to his parents because of this would also likely cause them personal or emotional stress due to their concern that he continues his education in Australia in English. 

    Circumstances in which the cancellation arose

34. The cancellation arose because the applicant was non-compliant with condition 8107(3)(b) relating to his 457 visa.  The applicant gave evidence at the hearing that he had not attended work with the sponsor for about three or four months before he was terminated in August 2018.  He said that when he started working for the sponsor (in 2015) that the company accepted small projects with many Vietnamese workers so the job was easily performed without having to speak English most of the time.  He said that because the company was doing so well, they then switched to accepting bigger projects, mainly from the government, that required contact skill in English which rendered his job more difficult because of his limited English language skills.  The applicant was asked whether he had made attempts to improve his English and said he tried to online, but that his ‘capacity for absorption was poor’.

35. No verifiable evidence has been provided that the applicant took steps to mitigate against the problems he had with the English language that he faced in the workplace when he was working for the sponsor.  In any event, it is reasonable to think, in the 457 visa programme where a visa holder has been engaged to work in Australia that they would have English language skills at a level that they could work effectively in an English speaking environment.  When the applicant started to experience difficulties with his English in the workplace, he says he became stressed and, on his evidence, appears to have stopped attending work at all from around April 2018 and the sponsor withdrew the nomination on 21 August 2018.  The Tribunal does not consider the circumstances in which the cancellation arose to have been beyond the applicant’s control.

    Past and present behaviour towards the Department

36. The applicant gave evidence at the hearing that he did not inform the Department of the change to his circumstances relating to his 457 visa (for nearly a year), specifically that he ceased working for the sponsor in April or May 2018.  The applicant responded to the NOICC.  Other than not informing the Department of the change to his employment, there is no information before the Tribunal that suggests he has been otherwise uncommunicative with the Department.

    Whether there would be consequential cancellations under s.140

37. The visas of the second and third named applicants, his wife and son, were granted on the basis that they met the secondary criteria as members of his family unit.  Cancellation of the primary visa holder’s visa will result in the consequential cancellation, under s.140 of the Act, of the visas of the second and third named applicants but it will not necessarily of itself cause separation of the applicants in this matter.

38. The applicant informed the Tribunal that he has a student guardian visa application pending, which may be granted to the applicant and the nominating student (his son) if the applicant meets the primary criteria.  Referring to Department policy, in the event the student guardian visa is granted to the applicant, it is indicated that the Regulations do not provide for a ‘spouse or de facto partner of a Student Guardian visa holder’ to accompany them as a family member.  If the visa is granted, this may cause some short term separation between family members if the applicant’s wife does not hold another visa allowing her to remain onshore.  However, the family members have been separated before, when the applicant’s wife returned to Vietnam for two years to work, up to October 2018 when she finished her study in Australia, and the applicant and their son remained onshore and it may be, given the high importance they place on their son’s education, that they will choose to do that again if the student guardian visa is granted

    Mandatory legal consequences (and any other relevant matters)

1. Cancellation will mean that the applicants will become unlawful non-citizens which may result in detention under s.189 of the Act and removal under s.198 of the Act.  They may be subject to a s.48 bar and be prevented from applying for another visa will onshore, with some very limited exceptions.

2. The new purpose of the applicant’s reason for stay in Australia is to be granted a student guardian visa so his son, who is currently in Year 10, can finish his HSC.  The application is with the Department pending assessment and, provided the applicant meets the primary criteria, the visa may be granted, either onshore or offshore.   As the applicants are onshore, they may be granted bridging visas until the pending student guardian visa applicant is assessed and decided.  There may be work restrictions for the applicant and his wife, but if they can show financial hardship work rights may be restored. 

   International obligations

3. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.

4. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

5. Non-refoulement obligations are not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

6. The applicant has not made any claim or provided any evidence indicating that he cannot return to his home country, Vietnam, because he would be subject to a risk of harm.  The Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.  The claim that his son will not be able to access appropriate education in Vietnam has been given some weight.

   Other relevant considerations

7. The most recent visa, the Subclass 457 that is the subject of this review, although cancelled, would have ceased naturally in July 2019.  It is reasonable to think that the applicant would have been aware his visa would cease at this time and also that he and his wife would have turned their minds to either applying for another substantive visa or returning to their home country, or any other country where they may have a right to reside, and should have been aware, as Vietnamese citizens, that their son would need to be able to fully communicate in the Vietnamese language to be able to go to secondary school there, and to have made some plans to ensure ease of repatriation for him.

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

   DECISION

9. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

    Jennifer Cripps Watts
    Member