Park (Migration) - [2019] AATA 1606

Park (Migration) [2019] AATA 1606 (18 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Seong Ho Park
CASE NUMBER:  1832721
HOME AFFAIRS REFERENCE:                BCC2018/4541591
MEMBER:Irene O’Connell
DATE:18 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Bridging A (Class WA) (Subclass 010) visa.

Statement made on 18 January 2019 at 9:54am

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 visa – breach of no- work condition – Company Director – meaning of work – activity normally attracts remuneration – ground for cancellation established – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189, 198
Migration Regulations (Cth) 1994, r 1.03, Schedule 8, condition 8101, Public Interest Criterion 4013

CASES
Al Ferdous v Minister for Immigration & Citizenship [2011] FCA 1070
Braun v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 611
Kim v Witton [1995] FCA 1508
Xu v Minister for Immigration & Anor [2007] FMCA 285

SECONDARY RESOURCES
Procedures Advice Manual, PAM3, General visa cancellation powers, ss 109, 116, 128, 134B, 140
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Bridging A (Class WA) (Subclass 010) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the applicant’s visa under s.116(1)(b) on the basis that he had not complied with a condition attached to his visa, namely condition 8101 which provides that the visa holder must not engage in work in Australia. After weighing the relevant considerations, the delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.
The applicant provided a copy of the delegate’s decision record with his application for review. He appeared before the Tribunal on 10 January 2019 to give oral evidence. He provided a document in support of the application for review, namely an assessment by Mr Erigoni Vlass, a Clinical Psychologist (dated 12 July 2018), which states that Ms Cho (the applicant’s mother) suffers from depression and anxiety because of the applicant’s uncertain immigration status.
CONSIDERATION OF GROUND FOR CANCELLATION
As set out in the decision record of the delegate, the applicant was registered with the Australian Securities and Investment Commission as the sole Director and shareholder of Australian RSMS Visa Service Pty Ltd (the Company).
In September 2018, Australian Border Force (ABF) officers attended the premises of the Company and the applicant was located there. When questioned about his presence at the premises, the applicant told the ABF officers that he was the Director of the Company operating at the premises.
Regulation 1.03 of the Migration Regulations 1994 (the Regulations), defines ‘work’ as ‘an activity that, in Australia, normally attracts remuneration’.
In his oral evidence to the Tribunal, the applicant did not dispute that he was the Director of the Company. Rather…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Park (Migration)

Details

AGLC: Park (Migration) [2019] AATA 1606
Case: [2019] AATA 1606
Decision Date: 18 January 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the cancellation of a Bridging A (Class WA) (Subclass 010) visa held by the applicant, Mr. Park. The Department of Home Affairs had cancelled Mr. Park's visa due to an alleged breach of the no-work condition attached to his visa. The central issue was whether Mr. Park's activities as a company director constituted "work" for the purposes of his visa conditions.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. The legal question revolved around the interpretation of "work" in the context of a company director's role, particularly when the activity might normally attract remuneration. The Tribunal also had to consider the relevant circumstances in exercising its discretion, including factors outlined in the Department of Home Affairs' Procedures Advice Manual.

The Tribunal reasoned that the applicant's activities as a company director, which involved performing tasks that would typically attract remuneration, constituted "work" in contravention of his visa conditions. Consequently, the ground for cancellation under section 116(1)(b) was established. In exercising its discretion, the Tribunal considered various factors, including the applicant's history in Australia, the purpose of his visa, the extent of his compliance with visa conditions, and the potential hardship. Despite the applicant's submissions, the Tribunal concluded that the circumstances warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel Mr. Park's Bridging A (Class WA) (Subclass 010) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Bridging A (Class WA) (Subclass 010) visa.Irene O’ConnellDeputy Division Head

Ratio Decidendi

Legal Principle Established

For the reasons outlined, 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, having regard to all the relevant circumstances, which may include matters of government policy.CONSIDERATION OF DISCRETION There are no matters specified in the Act or Regulations that must be considered in the exercise of the discretion. However, in considering whether to exercise the discretion, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters identified in the Department of Home Affairs’ Procedures Advice Manual (PAM3) ‘General visa cancellation powers (s109, s116, s128, s134B and s140)’. Relevantly, the Departmental guidelines in PAM3 cover such matters as:(1)the purpose of the visa holder's travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia;(2)the extent of compliance with visa conditions;(3)the degree of hardship that may be caused (financial, psychological, emotional or other hardship);(4)the circumstances in which the ground for cancellation arose;(5)the past and present conduct of the visa holder towards the Department;(6)whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, whether indefinite detention is a possible consequence of cancellation and whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention;(7)whether there would be consequential cancellations under s.140 of the Act;(8)whether any international obligations would be breached as a result of the cancellation; and(9)any other relevant matters. Each of these matters, in so far as they are relevant to the circumstances of this case and the exercise of the discretion, is addressed below.The purpose of the visa and whether there is a compelling need to travel to or remain in Australia The applicant first arrived in Australia in 2009, together with his mother and two brothers, as the holder of a student visa. His mother and younger brother have since obtained permanent residency. The applicant’s mother was granted a partner visa and his younger brother was granted a dependent visa. His older brother returned to South Korea and subsequently moved to Hong Kong where he currently resides. In his oral evidence to the Tribunal, the applicant indicated that he was not included in his mother’s partner visa application because he had not wished to be and that at the time, he was 18 years of age. He held several student visas and returned to South Korea for a period of some two years in around 2013 to 2015. He then returned to Australia and applied for a Child Residence (Class BT) (Subclass 802) visa which was refused. He was then granted a Bridging A visa in association with this application. Accordingly, the purpose of the Bridging A visa is to provide temporary lawful status while the application for the substantive visa remains on foot.