Park (Migration)

[2021] AATA 1213

Park (Migration) [2021] AATA 1213 (19 April 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaeyong Park
Mrs Seonsook Park
Mr Dahun Min

CASE NUMBER:  2012953

DIBP REFERENCE(S):  BCC2020/803048

MEMBER:Noelle Hossen

DATE OF DECISION:  19 April 2021

DATE CORRIGENDUM

SIGNED:14 June 2021

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision:

The Decision page is amended to delete the sentence “The Tribunal has no jurisdiction with respect of the other applicants.”

The following sentence is inserted on the decision page in lieu of the deleted sentence “The second and third named applicants have applied for a visa on the basis of being a member of the first named applicant’s family unit and therefore their application is determined by the first named applicant’s Application.”

The last sentence in paragraph 3 reading “As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.” is deleted.

In Paragraph 51 the sentence reading “The Tribunal has no jurisdiction with respect to the other applicants” is deleted and replaced with “The second and third named applicants have applied for a visa on the basis of being a member of the first named applicant’s family unit and therefore their application is determined by the first named applicant’s Application.”

Noelle Hossen
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaeyong Park
Mrs Seonsook Park
Mr Dahun Min

CASE NUMBER:  2012953

HOME AFFAIRS REFERENCE(S):          BCC2020/803048

MEMBER:Noelle Hossen

DATE:19 April 2021

PLACE OF DECISION:  Perth

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 April 2021 at 2:54pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – circumstances beyond applicant’s control – employment terminated unexpectedly – claim for unfair dismissal – mediation resolved all pending issues for lump sum payment – search for new employment at height of COVID-19 restrictions – new employment found when restrictions lifted – long residence and work and other compliance – potential hardship – members of family unit – decision under review set aside for first applicant, no jurisdiction for other applicants

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

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 14 August 2020 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) (b) on the basis that the visa holder had not complied with condition 8107(3)(b) because the period during which they had ceased employment exceeded 60 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 applicants appeared before the Tribunal on 15 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Dahun Min( the applicant’s son) and Jeremy Randall (the applicant’s present employer). The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. The applicant provided a lot of documents to the Tribunal including but not limited to the Decision of the Delegate, a copy of his contract of employment with Dai’s Japanese Restaurant, letters to the Department, letter of appointment with Zen Project Pty Ltd, letter of termination of employment, and documents lodged at the Fair Work Commission.

7. The Tribunal had copies of the documents on the Department’s file.

8. 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

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)(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?

   s.116(1)(b) - non-compliance with conditions

10. 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 attached to the applicant’s visa. This condition requires that if the visa holder ceases employment -the period during which the holder ceases employment must not exceed 60 consecutive days.

11. The applicant notified the Department through his representative by email on the 24 February 2020 that he had unexpectedly received a termination of employment from his Sponsor on the 13 February 2020 and that he had lodged a claim to Fair Work Australia for unfair dismissal.

12. The letter to the Department dated the 24 February 2020 indicated that there was to be a mediation conference for the unfair dismissal claim on the 16 March 2020.

13. On the 11 June 2020 the applicant was notified that the Department intended to cancel the visa.

14. The applicant replied to the Department’s Notice by email dated the 12 June 2020.

15. The applicant received his Notification of cancellation of his temporary Business Entry (class UC) Temporary Work (skilled) (subclass 457) visa under section116 of the Migration Act on the14 August 2020.

16. The applicant filed his Application for review of the Department’s decision on the 18 August 2020.

17. The applicant accepted that the grounds regarding condition 8107 for cancellation existed at the time, that he received the Notice of the Department’s intention to cancel the visa on the 11 June 2020, as the applicant’s employment ceased on the 13 February 2020.

18. In the letter to the Department dated the 12 June 2020 the applicant set out the history of the matter and agreed that pursuant to clause (3) (b) of condition 8107 that the ground for cancellation exists as he was notified orally that his employment ceased on the 2 February 2020.The Tribunal understands that the applicant was told verbally that his employment was terminated on the 2 February 2020 and received formal notification in writing on the 13 February 2020.

19. The letter dated the 12 June 2020 from the applicant to the Department set out that the parties had a mediation conference on the 16 March 2020 and resolved all pending issues for the sum of $45,000 payable by the employer to the applicant ,within 14 days of the date of settlement. The employer had paid the said sum to the applicant on the 23 April 2020.

20. The letter set out that the cessation of employment was beyond the control of the applicant.

21. The letter also set out that the mediation conference was held at the peak of the COVID 19 pandemic. At the time of the letter in June 2020 the applicant was trying to get employment with a few potential employers for new employment.

22. On the 1 May 2020 the applicant wrote to the Department setting out that he had been offered a job by a new sponsor but due to the COVID 19 pandemic the sponsor was not operating the business. However, upon the restrictions being lifted the client will enter a new employment contract with a new sponsor and apply for a new visa before the expiry of his current visa.

23. For these reasons, 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 discretion

24. 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.

25. The applicant told the Tribunal that he has lived in Australia for 10 years as he initially arrived from Korea in 2011 with his family. He had worked at the Japanese restaurant in Central Park initially and did not start the employment with his previous employer until 17 August 2015.He had worked for the same employer since that time until his employment was terminated on the 2 February 2020.

26. He said that he generally worked for 55 hours per week, but his contract stipulated 38 hours a week, but he worked longer hours, as he wanted to please his employer as the employer had promised to help him to obtain a permanent visa. His annual salary was $54,000

27. At the hearing the applicant said that he felt that he had been treated badly by his employer.  He worked hard and did not receive payment for overtime, and he had been promised by his employer that he would sponsor him further to apply for permanent residency in Australia. He said that he had studied English and had completed his IELTS test. He had finally achieved that goal, as he needed a score of 6 to be considered for an application as a resident of Australia. He achieved his goal in November 2019.

28. The applicant wishes to remain living in Australia as he has worked hard and made sacrifices to achieve that status.

29. His family had relocated with him to Australia, 10 years ago, and if he had had no issues with the employment situation due to the difficulties with the COVID 19 pandemic they would have achieved that goal.

30. He said that he owns a car in Australia and he and his wife and son wished to remain in Australia.

31. His son gave evidence at the hearing and told the Tribunal that he had spent most of his formative years in Australia. He was now studying at TAFE. All his friends are Australian since he completed his schooling in Australia and he did not have any friends in Korea of his own age group.

    The extent of compliance with visa conditions

32. The applicant had complied with the conditions of his visa from 2011 to 2020 throughout the time that he has lived in Australia. The event which occurred in February 2020 and soon thereafter was out of his control as he was unfairly dismissed. The COVID 19 pandemic made it difficult for him to secure employment in the hospitality industry as most restaurants were unable to operate and the uncertainty in the market conditions made it difficult for him to secure employment.

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

33. The applicant stated that he would be devastated if he had to return to Korea as he had made a good life in Australia and he would have to start afresh. He did not have any assets in Korea and would have to restart his career and that it would be hard as he had his heart set on living in Australia. He had worked hard during his time in Australia to no avail.

34. He would be disappointed as he felt that this was beyond his control.

35. His son gave evidence that he would feel the impact more so than his father as he felt that he had lost touch with friends of his own age group as he had established strong friendships with a peer group in Australia for the last 10 years. He did not have a close connection with anyone of his own age group in Korea.

36. The impact on this family would be serious in that they would feel disadvantaged by the fact that the pandemic had ruined their otherwise, exemplary record in complying with the migration laws of Australia.

37. They would find it difficult to return to Korea as the son indicated that he would have to attend to military service for 1.5 years if the family had to relocate. The Tribunal accepts the submissions and the oral evidence of the applicant and his witnesses that there would be some financial hardship to the family if the visa was cancelled. The Tribunal accepts that the hardship overall would be significant and gives weight in favour of the applicant’s case.

    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.

38. The ground for cancellation arose were beyond the visa holder’s control as he found it difficult to obtain employment shortly after the pandemic restrictions were lifted as many restaurants were unable to commit to him on a permanent basis. He did sign up and has been working for his new employer since the 13 August 2020 which was the day before he received notice of his cancellation.

39. His employer Jeremy appeared at the hearing and gave evidence that he found the applicant to be indispensable to his business as he is a very good chef of Japanese style of cooking. He said that he felt that he was very lucky to have found him as there are very few chefs applying for work now, who have the skill required to be part of his business.

40. He confirmed that he could not employ him sooner as his business was affected by the restrictions due to COVID-19 pandemic.

41. The Tribunal accepts the evidence of the applicant and of his employer as it is clear from the evidence that he was unable to secure employment sooner as a lot of businesses were affected by the pandemic and it was difficult to obtain employment during that period. The Tribunal places a lot of weight on the fact that the circumstances leading to the cancellation were out of the control of the applicant, in favour of the applicant’s case.

    Past and present behaviour of the visa holder towards the department.

42. There is no evidence before the Tribunal to suggest that the applicant has not cooperated with the Department or the Tribunal. In fact, there is evidence that the applicant through his representative informed the Department of all the changes of his employment status.

    Whether there would be consequential cancellations under s.140.

43. There is no evidence of consequential cancellations under s.140

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

44. It is unlikely that the applicant will be detained but rather provided with a time limited period in which he can leave the country or apply for a review of the decision.

45. The applicant has remained in Australia on a bridging visa .If the visa remains cancelled the applicant will only be able to apply for a limited range of further visas .Given this fact and the efforts that the applicant has made for the last 10 years in Australia to be in a position to apply for a permanent visa this fact is going to be unfair to the applicant and his family.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

46. There is no evidence before the Tribunal to indicate that there are any international obligations to consider.

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

47. The visa being considered is not a permanent visa.

    Any other relevant matters

48. I have weighed all the information and evidence before me. I am sufficiently satisfied by his evidence, the evidence of his son and employer that the explanations given for the breach in this case was beyond the control of the applicant  and the hardship to his family if the visa is cancelled that the visa should not be cancelled

49. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    decision

50. 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.

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

    Noelle Hossen
    Member