Son (Migration)

[2018] AATA 5490

Son (Migration) [2018] AATA 5490 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jungeun Son
Mr Jongwon Choi
Mr Jongin Choi

CASE NUMBER:  1727584

HOME AFFAIRS REFERENCE(S):           BCC2017/1810096

MEMBER:Karen Synon

DATE:13 November 2018

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 13 November 2018 at 4:12pm

CATCHWORDS
MIGRATION – cancellation – Temporary Work (Skilled) visa – Subclass 457 – chef – employment ceased with sponsor – new nomination approved – young family – best interests of children – decision under review set aside


LEGISLATION
Migration Act 1958, ss 116, 140, 348, 359
Migration Regulations 1994, Schedule 8, Condition 8107

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 3 November 2017 made by a delegate of the Minister for Immigration and Border Protection 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 3 November 2017 the basis that the applicant had not complied with Condition 8107(3)(b).

3. The applicant applied for review of the decision to cancel her visa on 8 November 2017 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Invitation to comment and provide information

5. On 3 October 2018, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     The information is from the Department of Home Affairs records and relates specifically to [the applicant]:

   o    You were granted a Subclass 457 visa on 17 May 2016.  It was originally valid to 17 May 2020 but was cancelled on 13 November 2017.  Your visa was sponsored by Skypearl Pty Ltd AFT Shige Family Trust.

   o    Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased to be employed by your approved sponsor, the period must not exceed 90 consecutive days.

   o    You ceased being employed by your sponsor on or before 4 November 2016.  On 13 November 2017, the date your visa was cancelled, you had not worked for your sponsor for more than 90 consecutive days.

   o    There is no information to indicate that you recommenced employment with your sponsor.

   o    A recent check indicates that no new relevant business nominations have been approved in respect of you since your visa was cancelled.

   In conducted this review in your case:

   ·We will first consider if there are grounds to cancel your Subclass 457 visa in accordance with s.116 of the Migration Act.

   ·If we determine that there are such grounds, we will then consider if your visa should be cancelled, taking into account all the relevant information.

   This information is relevant because it indicates that:

   ·You breached a condition of your subclass 457 visa, and there are grounds for cancelling your visa under s.116(1)(b) of the Migration Act

   §There are circumstances which may indicate that your Subclass 457 visa should be cancelled including that:

   §  Your Subclass 457 visa was granted to you for the purpose of undertaking particular employment with an approved sponsor and that purpose ceased when you stopped being employed by your sponsor.

   §  You have not secured a new approved sponsor, because no new business nomination has been approved for you.

   If we rely on this information in making or decision, we may:

   ·Determine that you breached your visa condition and therefore are there are grounds to cancel your Subclass 457 visa under s.116(1)(b) of the Migration Act.

   ·Decide that your visa should be cancelled.

   You are invited to give comments on or respond to the above information in writing.

   If we determine that there are grounds to cancel your Subclass 457 visa, it will go on to consider if your visa should be cancelled.  In making this assessment, the Tribunal will consider all relevant information, which may include, but is not limited to:

   o    The purpose of your travel to and stay in Australia

   o    The degree of hardship that may be caused by visa cancellation

   o    The circumstances in which the ground for cancellation arose

   o    Your past and present conduct towards the department

   o    Australia’s obligations under international agreements

   o    The impact of cancellation on any victims of family violence

   o    Any other relevant matters.

   Applicant’s Response

6. On 17 October 2018 the applicant provided a statement and a number of supporting department documents.  Relevantly the applicant contends that her 457 visa should not be cancelled because:

   1. 457 visa granted on 17 May 2016.

   2. Employment was ceased on 29 Oct 2016

   3. New Nomination under SKBR Pty Ltd was lodged on 14 Nov 2016.

   a.It was lodged within 90 days of employment ceased

   b.It complied on the regulation

   4. Nomination was refused on 27 July 2017

   a.     Applicant has not been engaged with new sponsor yet as she complied on condition 8107

   5. Applicant had been offered by Silver vision pty ltd.
   6. New nomination under Silver Vision Pty ltd was lodged on 02 Aug 2017

   7. New nomination under Silver Vision pty ltd was refused on 06 sep 2017

   a.Sponsor did not accept the refusal reason

   b.Applicant has not been engaged with new sponsor yet.

   c.Applicant still has been complied with condition 8107

   d.Sponsor want to lodge another nomination with same position in same restaurant

   8. Second nomination under silver vision pty ltd was lodged on 07 Sep 2017.

   a.Applicant has not been engaged with new sponsor yet.

   b.Applicant still has been complied with condition 8107

   9. 457 Visa cancelled on 17 Nov 2017
   10. Applicant visited immigration office and the BVE with work permit granted
   11. Immigration officer advised applicant that applicant has been complied the condition and has not been breached any regulation, the appeal to AAT will be in good result.
   12. Since work permit was granted, applicant has been working for Silver vision
   13. Finally, the Nomination under Silver vision was approved on 15 Oct 2018

   Further Consideration

   o    Applicant and family have been genuinely sponsored by Australian and also complied to condition attached

   o    Applicant tried to transfer the nomination within 90 days according to regulation. However the reason of refusal of the nomination has been subject to discrimination of case officer even nomination under the same position and same sponsor

   o    Child has been studying in Australia

   o    As she has been continually offered by Korean restaurants, she has exceptional skills to transfer the knowledge and skills to Australian trainee or cooks.

   o    Finally, the nomination has been approved which was lodged before the cancellation of the visa.

7. The applicant appeared before the Tribunal on 13 November 2018 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Young Sup Yu, a Director of Silver Service Pty Ltd, the applicant’s new sponsor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

8. The applicants were represented in relation to the review by their registered migration agent. He did not attend the hearing.

   Jurisdiction of secondary applicants

9. 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. The Tribunal explained this at the hearing and the applicant indicted that she understood.

10. 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

11. 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?

12. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 was attached to the applicant’s visa. Condition 8107(3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.

13. On the basis of the information before it the Tribunal finds that the applicant was granted a subclass 457 visa on 17 May 2016 to occupy the nominated position of ‘Cook’ at Skypearl Pty Ltd AFT Shige Family Trust.

14. The applicant explained that she was used to working in a Korean restaurant but this was a Japanese restaurant called the ‘Shige Family Restaurant’ in East Perth  She commenced work about mid-June and only worked there until 26 October because the style of food was very different to what she knew in Korean restaurants and very hard to learn.  Also, she was working in a small kitchen with the owner and chef and the whole family worked in the restaurant together.  It was such a small place and the cliental was international.  Her inability to cook these meals at a very busy time meant their trust in her was fading.   She told the owner it was too hard and she wanted to finish but he told her it would get better.  She then decided to resign on 26 October but stayed on, at the owner’s request, for a few more days until he could find someone to replace her.  It was the applicant’s decision to leave.  She asked the owner to notify the department that she had resigned.

15. She then saw an advertisement for a Cook for a large Korean restaurant, SKBR.  She was nominated but never worked there because the nomination was refused.  She thinks this was because it changed ownership and the new owner could not financially support the business.  She had this new nomination lodged within 90 days of finishing at Skypearl.

16. She then applied for a position with Silver Vision Korean restaurant.  She commenced working here when she was granted a Bridging visa E on 6 November 2017 and the nomination was approved on 15 October 2018.  She works as a Korean Cook and is based in the Perth CBD.

17. The applicant agreed that she ceased employment with Skypearl Pty Ltd on either 26 October or 4 November 2016 and that she did not commence employment on a 457 visa for 90 days or more although a further nomination had been lodged within the 90 day period.

18. For these reasons, 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 power to cancel the visa should be exercised.

    Consideration of discretion

19. 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 applicant’s travel to and stay in Australia

20. The applicant gave evidence that she came to Australia with her son and daughter to study English.  They commenced primary school (grades 2 and 3) and she undertook English classes.  She came here on a student guardian visa and later she also studied.  Her children are now in second and third years of university and they all live together.  The applicant had no family here when she arrived but lots of friends in Sydney.  She has stayed in Australia most of the time since then but returned to Korea 4 years ago for 2 years because her mum was old and her husband is there and her mother-in-law.  Her husband has a very good job working for a big company in Korea.  Her husband visits Australia each year and pays for all the children’s school and university fees.

21. As explained to the applicant at the hearing, a 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that the applicant would be able to remain in Australia on a permanent basis.  The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time as a Cook at Skypearl Pty Ltd. While this purpose no longer exists the applicant’s evidence to the Tribunal was that she is now the subject of an approved nomination as a Cook at a Korean restaurant, Silver Vision and that she has been working there on her bridging visa for the past year.

22. Given that the applicant is now the subject of a new nomination and placing weight on the evidence of her employer, Mr Young Sup Yu, a director of the company who attended the hearing and spoke highly of the applicant’s skills, the business’ need for the applicant and the difficulty of finding Korean skilled chefs, the Tribunal is of the view that the applicant’s current purpose of travel to and stay in Australia is a valid one.

    The degree of hardship that may be caused by visa cancellation and consequential cancellations under s.140

23. The applicant spoke of the hardship that would be experienced by her 2 children who have been raised and educated in Australia since their early primary years.  They are both studying at university; one in Architecture and one in Commerce and would like to stay in Australia after they complete their studies.  The Tribunal records that although the family has always been on temporary visas, that it would cause considerable hardship if the applicant’s children, who would be subject to consequential cancellation, had to abandon their current university studies mid-way and return to a country where they have not lived for over a decade.  The Tribunal gives this factor considerable weight.

    The circumstances in which the ground for cancellation arose

    The applicant, perhaps unwisely, made a decision to leave her employment at Skypearl, where she was the subject of an approved nomination, because the style of cooking and operations were difficult.  Despite, within 90 days securing another employer prepared to sponsor her, this nomination was refused.  Throughout the period of time when the applicant was not the subject of an approved nomination she was actively seeking employment which she eventually secured with a new nomination approved on 15 October.

    The applicant’s past and present behaviour towards the Department

24. There is no information before the Tribunal to suggest that the applicant has not complied with her visa conditions.  Relevantly, the primary decision records:

    There is no evidence …to indicate that the visa holder has not been truthful and cooperative in her past and present behaviour towards the Department.

    There is no information…to indicate that she has previously breached any visa conditions

    The visa holder has responded within the relevant timeframes to the Notice of Intention to Consider Cancellation and addressed the issues.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

25. The applicant’s visa was cancelled on 3 November 2017 and she now holds a Bridging visa E.  There is no evidence before the Tribunal that cancellation would result in her being subject to detention, or that indefinite detention is a possible consequence of cancellation.

    Whether any international obligations would be breached as a result of the cancellation

26. There is no evidence before the Tribunal regarding this matter.  The Tribunal asked the applicant if she holds any fears for her safety or security should she have to return to South Korea.  She said no but the last couple of years would have been wasted because she wanted to start a career in the food business.

    Other relevant mattes

27. The applicant said the last year had been very difficult and she first applied for the visa because she was very good with Korean food but wanted to do something new.  Her children are totally dependent on her visa situation and are very proud of her as a career woman in the food industry.

28. In summary, the Tribunal accepts that the applicant’s new proposed sponsor, Silver Vision Pty Ltd has a need for the applicant’s skills in its Australian operations, as evidenced by the approved nomination in respect of her and the director of the company coming to the hearing to give evidence about her value to the business where she has worked for a year.  Based on this the Tribunal’s view that Silver Vision Pty Ltd has a genuine need for the applicant’s skills in its workforce.  The Tribunal has also places considerable weight on the hardship that would be caused to the applicant’s 2 children mid-way through their university education as a result of any consequential cancellations.

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

    DECISION

30. 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.

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

    Karen Synon
    Member