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 he contended that he had not considered that operating a business constituted ‘work.’ He had thought of work more in terms of paid employment. When it was put to him at the hearing that work constituted an activity that attracts remuneration, he stated that his business had not made money.
In the applicant’s response to the Notice of Intention to Consider Cancellation, which is summarised in the delegate’s decision record, the applicant also claims the Company is in the ‘initial brainstorming-stage,’ ‘is not operating,’ ‘that as Director of the company he would not be able to work, only manage,’ and ‘only persons working at the company will be the employees of the company’.
In considering whether the applicant has undertaken ‘work’ as defined by the Regulations, the Tribunal has had regard to the Federal Court decision of Kim v Witton [1995] FCA 1508, which states that:
The test is not whether the individual performing the activity receives remuneration for it, nor whether he or she performs the activity for commercial purposes or for some other reason. The test to be applied is an objective one, namely, whether the ‘activity’ performed by the individual normally attracts remuneration in Australia.[1] [Emphasis added.]
[1] Kim v Witton [1995] FCA 1508 at [268] (Sackville J).
The question of whether the applicant’s activities fall within the definition of ‘work’ is a question of fact to be determined by this Tribunal.[2]
[2] Al Ferdous v MIAC [2011] FCA 1070 at [25] (Stone J); Bhatia v MIBP [2015] FCCA 409 at [31] (Judge Driver).
It is not in dispute that the nature of the applicant’s involvement in the business is that of the sole Director of the Company. As the sole Director of the Company, the applicant would be responsible for managing the company’s business activities. He would also be able to exercise all the company’s powers. The applicant is also the sole shareholder/member of the Company as all shares in the Company were issued to and are beneficially held by the applicant.
The fact the applicant claims that he performed the duties of a Director without receiving remuneration does not take his conduct outside of the category of ‘work’. It is sufficient that the activities performed by the applicant are activities that a person would normally receive remuneration for.[3]
[3] Braun v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 611 at [156].
The Tribunal is satisfied that the activities undertaken by the applicant normally attract remuneration and, accordingly, constitute ‘work’ for purposes of r.1.03. Accordingly, the Tribunal finds that the applicant is in breach of condition 8101.
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.
Given that the applicant’s substantive visa application is subject to review and a Bridging E visa has been granted for the duration of the appeal process, the need for a Bridging A visa is reduced.
The extent of compliance with visa conditions
Since 2009, the applicant has held a range of visas including two student visas, multiple visitor visas and bridging visas associated with the visitor visa applications. At the hearing, the applicant stated that he has not breached any conditions in respect of the previous visas he held. The Tribunal gives this minimal weight in favour of the exercise of the discretion not to cancel his Bridging A visa.
As set out above the applicant claims that his breach of the ‘no work condition’ attached to his Bridging A visa was the result of a misunderstanding on his part as to what constituted work rather than a deliberate action. The Tribunal notes that all visa grant notices for visas granted to the applicant on or after 11 November 2016 have indicated the imposition of the 8101 condition. As such, the Tribunal is satisfied that the applicant was aware of the imposition of the condition. The Tribunal does not accept that the applicant was unaware that his activities constituted work. The applicant indicated in the hearing that he had undertaken studies at University of Technology Sydney and as such, in the view of the Tribunal, would comprehend the meaning and extent of condition 8101.
The degree of hardship that may be caused
The applicant indicated that there would be hardship to his family if his Bridging A visa were cancelled and he were required to return to South Korea. He referred to the assessment of the Clinical Psychologist which indicated that his mother’s depression and anxiety had escalated due to the uncertainty regarding his immigration status. In particular, the Clinical Psychologist’s report stated that the applicant’s mother ‘was clinically depressed as a result of her son being denied sponsorship and that she did not want her son to be forced to return to south Korea as he has no family there and…would be alone and become very depressed’. The applicant also stated that his younger brother would experience emotional hardship if he were required to leave Australia. The applicant also stated that if he returned to South Korea, he would be required to do compulsory military service.
The Tribunal notes that the applicant holds a Bridging E visa and would therefore not be unlawful or required to leave Australia until the determination of his appeal in respect of his Child Residence (Class BT) (Subclass 802) visa application. In the circumstances, the Tribunal does not accept that hardship would flow to himself or his family on the cancellation of his Bridging A visa.
The circumstances in which the ground for cancellation arose
As indicated above, all visas held by the applicant on or after November 2016 have had condition 8101 imposed on them. The visa grant notices for these visas have been sent to the applicant and have stated that condition 8101 was attached to those visas. The Tribunal is satisfied that the applicant was aware of the ‘no work condition’. For the reasons articulated above, the Tribunal does not accept that the applicant was unaware that his activities constituted work.
The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing.
Whether there are any persons in Australia whose visas would, or may be, cancelled under s.140 of the Act
Based on the evidence before the Tribunal, there are no persons in Australia whose visa would, or may, be automatically cancelled by operation of law under s.140 of the Act.
Accordingly, the Tribunal gives no weight to this consideration.
Whether the visa cancellation may result in Australia breaching its international obligations
There is no evidence before the Tribunal to suggest that the cancellation of the applicant’s visa may result in Australia breaching its international obligations. The applicant has not claimed, nor is there any evidence to suggest, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. In any event, the applicant would not be refouled as he holds a Bridging E visa which allows him to remain in Australia for the duration of the appeal regarding his substantive visa application.
The Tribunal notes that the applicant does not have children who would be affected by the cancellation of his Bridging A visa. For the reasons outlined, the Tribunal gives no weight to this consideration.
The past and present behaviour towards the Department
The Tribunal notes that the delegate’s decision indicated that the Child Residence (Class BT) (Subclass 802) visa refusal decision found that the applicant provided false and misleading information to the Department as part of that visa application. The delegated also noted that the applicant did not attend an interview on 2 October 2018 which he was required to attend.
Mandatory legal consequences
In the absence of another temporary or substantive visa being granted to or held by the applicant, the cancellation of his Bridging A visa would result in him becoming an unlawful non-citizen liable to immigration detention and subject to removal: s.189 and s.198 of the Act. The Tribunal is satisfied that these consequences would not occur as the applicant holds a Bridging E visa.
The Tribunal notes that if the applicant’s Bridging A visa is cancelled, he would need to meet Public Interest Criterion 4013 if he were to apply for another temporary visa. However, the Tribunal considers that this is an intended consequence of the legislation when a visa is cancelled on these grounds and reflects the seriousness of this type of cancellation.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
As the applicant holds a bridging visa, this consideration is not relevant.
There were no other matters identified by the applicant or the Tribunal as relevant considerations.
Conclusion
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’Connell
Deputy Division Head