PARK (Migration)

[2018] AATA 5648

PARK (Migration) [2018] AATA 5648 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr HYUNSEOK PARK
Mrs Sung Hee Bang
Ms Haeun Park
Mr Hajun Park
Ms Hayoung Park

CASE NUMBER:  1727025

HOME AFFAIRS REFERENCE(S):           BCC2017/588645

MEMBER:Michael Cooke

DATE:4 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa.

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

Statement made on 04 December 2018 at 11:02am

CATCHWORDS

MIGRATION – cancellation – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 (Temporary Work (Long Stay Activity)) – applicant had ceased working for the nominator – applicant’s disagreement with his sponsor – potential disruption to applicant’s family – temporarily laid off from his employment – amicable resolution – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 116, 140, 348

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 30 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 401 (Temporary Work (Long Stay Activity)) 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 ceased working for the nominator. 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 21 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. 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

6. 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.

   The Hearing

7. The applicant gave the Tribunal a potted history of the issues around the disagreement with his sponsor. In particular he referred to the accommodation issue. He also elaborated on his reconciliation with his sponsor. He further informed the Tribunal of the circumstances of his religious mission. He begged the Tribunal to consider the potential disruption to his family created by the cancellation and his desire to continue his important mission assisting Australia’s less fortunate.

   Does the ground for cancellation exist?

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

8. 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 the applicant not to cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified.

   Findings and reasons relating to whether the relevant condition has been breached

9. The applicant had an issue with his employer regarding accommodation (a requirement of the nomination). He spent time during work hours picking up his children (3) from school as his wife had been forced to work to pay rent. This series of adverse issues damaged the relationship between the parties. It led to him being temporarily laid off from his employment and the sponsorship withdrawn.

10. The disagreement between the parties was short-lived and has been resolved amicably. The applicant shortly returned to work for the sponsor as initially anticipated. The nominator has requested the sponsorship to be restored. A new contract has been signed between the nominator and the applicant incorporating the previous contract and restoring the previous contractual obligations.

11. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

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

    DECISION

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa.

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

    Michael Cooke
    Senior Member