Tan (Migration)

Tan (Migration) [2018] AATA 5245 (11 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Siew Kian Tan
CASE NUMBER:  1835695
HOME AFFAIRS REFERENCE(S):           34876336210 BCC2018/1878459
MEMBER:Peter Emmerton
DATE:11 December 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.
Statement made on 11 December 2018 at 1:57pm

CATCHWORDS
MIGRATION – cancellation – Subclass 030 (Bridging C) visa – breached visa condition of no work – applicant established and ran businesses – revenue from businesses – substantial number of visa applications and reviews since 2014 – no compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116(1)(b)
Migration Regulations 1994, Schedule 2, condition 8101
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 3 December 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breached 810 1 which stipulates that the visa holder must not engage in work. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 11 December 2018 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
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 8101 attached to the applicant’s visa. This condition requires that the visa holder must not engage in work.
The delegate, when they issued Form 1099, Notice of Intention to consider cancellation under section 116 of the Migration Act 1958, on 3 December 2018, identified several current and non-current business interests owned by the visa applicant, Ms Siew Kian Tan. Evidence presented included information provided to the Department and available through the Australian Business Register and Australian Securities and Investments Commission. This included ABN and ACN identification numbers which the Tribunal verified as being attached to several current businesses at the time of the Department’s enquiries.
When questioned by the Tribunal, the visa applicant acknowledged ownership of the businesses. This is consistent with statements made by the applicant when interviewed in regards to Form 1099, in which she acknowledges purchase of the businesses and states that she used $80,000 of her investment money from China and Hong Kong to operate.
Ms Tan also stated that ‘all profits go into separate business accounts operated by myself at Commonwealth Bank.’ This statement was confirmed during the hearing where she stated that the sales revenue went into the separate CBA accounts.
In an Addendum to Part A of From1099, Australian Border Force stated that ABF officers observed Ms Tan at Asian Flavor Restaurant 30 November 2018 in Glenelg. Ms Tan appeared to be engaged in performing duties consistent with customer service. These duties included assisting a customer with enquiries and adjusting signs adhered to the inner door of premises. Ms Tan was wearing a name badge with the name ‘Kimberley’.
The Tribunal questioned Ms Tan regarding this observation and she stated that she spend varying periods of time in the business from 1 hour up to half a day depending on what needs to be done with suppliers, cleaning, renovating and that she is very fussy and likes to ensure everything is done properly. Ms Tan also stated that she did not know which people were the ABF officers but admitted that it would be rude to not look after people if they came into her shop. She also acknowledged that she was wearing a name badge but not a uniform.
On 3 December the ABF, upon execution of a 251 warrant, located 2 persons residing in the rear shed of a property. Both persons advised the ABF officers that they were working in a restaurant and Ms Tan is the boss. Further enquiries were made and they both advised that they worked at 2 different restaurants in City Cross, Adelaide. Those 2 restaurants are Sawadee Ka Thailand Café and Shanghai Dumpling House. Both confirmed that Ms Tan is the boss. Ms Tan stated in the hearing that this was correct at the time but she is no longer associated with the 2 businesses identified. Ms Tan agreed that she has been receiving $90 per week from each of 5 people staying at her rented property, including the 2 fore mentioned individuals interviewed by the ABF residing in her shed. The claim was made that this was done via Air B&B although monies had not been received as of yet.
The Tribunal notes Ms Tan’s statements, in Part B of Record of decision whether to cancel visa, in which she states “that when she got the visa it did not say I could not start business.’ The Tribunal also notes additional statements in which she acknowledges starting businesses and buying businesses, associated financial arrangements and that the profits from businesses go into a CBA account.
Ms Tan explained that she had not received advice which advised her that she could not open businesses because such actions would contravene her 8101 visa condition. The Tribunal put to her that it was her responsibility to understand her visa conditions. Ms Tan went on to say that she understands that she has done the wrong thing, she stated that the breach was not deliberate and she is ready to return home. She has purchased an airline ticket and has started the arrangements for her 5 dogs to join her in Malaysia. In addition she has commenced discussions with her accountant to close the restaurants. The main reason the applicant wanted to appear before the Tribunal today was to explain her mistake and the fact that she didn’t know it was the wrong thing to do until the department intervened. She went on to say that she wanted her chance to explain, even though she knew that she could not succeed in her review.
Ms Tan also stated in her statement to ABF that she opened business to show Government that she works hard and pays taxes. She stated that she needs to pay for rent, pay for medication for her blind son residing in Malaysia and provide money to help with Shaun’s kids, (her claimed spouse). ‘If I didn’t open business then all my savings would go. The Tribunal views this is an admission that remuneration in some form is coming to her from the businesses she operates.
The Tribunal notes that the visa condition 8101 states that the holder must not engage in work. Work is defined as an activity that in Australia, normally attracts remuneration. The Tribunal is satisfied that owning and running the businesses as previously stated constitutes work as it is an activity that in Australia, normally attracts remuneration.
The Tribunal is satisfied that visa condition 8101 has been breached.
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 visa should be cancelled.
Consideration of discretion
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’.
Relevantly this includes:
·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;
·the extent of compliance with visa conditions;
·degree of hardship that may be caused (financial, psychological, emotional or other hardship);
·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;
·past and present behaviour of the visa holder towards the department;
·whether there would be 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, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention;
·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation;
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;
·any other relevant matters.
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
Ms Tan arrived in Australia under a UD601 (Electronic Travel Authority) visa valid until 17/10/2014. While onshore she was granted a FA600 visitor visa until 17/4/2015.
On 1 April 2015 she lodged an application for a XA866 Protection visa. It was refused by the delegate on 1 September 2015.
Review of this decision was sought at the AAT on 8/10/15 (case number 1513709). This AAT found they did not have jurisdiction due to timeframes not met.
On 21 July 2017 commenced a Judicial review with the Fed. Court with an outcome on 4/4/18 of “Minister win”.
On 28 April 2018 Ms Tan lodged an application for a UK820/BS801 Partner visa. This application remains ongoing.
The visa applicant applied for a Bridging visa E-subclass 050 on 5 December 2018, this was refused on 6 December 2018. Application for review by the AAT has been submitted and the matter is due to be heard in a separate hearing prior to 17 December 2018.
The Tribunal considers that the original purpose of the visa holder’s travel and stay in Australia was to act as a visitor and tourist as evidenced by her original 2 visas granted for that purpose. The Tribunal acknowledges her statement that she came to Australia to see if she liked it after breaking up her personal and business relationship with her ex-boyfriend in Malaysia.
The Tribunal does not believe that the visa holder has a compelling reason to stay in Australia and places little weight on this factor.
The extent of compliance with visa conditions
As the applicant has breached condition 8101 of her visa, it follows that she has not complied with her visa conditions as she has worked and gained remuneration as a result. There is no evidence of prior non-compliance. The Tribunal places substantial weight on this factor.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal acknowledges that some emotional hardship may occur as a result of the separation of the claimed spousal relationship, although it notes that the couple currently live in 2 separate States and communicate via Skype or Facetime in between visiting each other. The Facetime or Skype communications could also be achieved if the visa applicant was living in Malaysia. The visa applicant’s financial and parenting contribution to her spouse’s family could possibly continue, albeit in a modified form, depending upon the Partner Visa, currently under consideration with the Department. The Tribunal notes that many couples and families face similar and sometimes more challenging circumstances.
No evidence was presented to the Tribunal supporting the claimed spouse’s medical condition, other than a statement by the applicant that he had a muscular condition on his legs, arms and neck that had required operations however this had not produced good results. She went on to state that she did not know what the condition was or if it was a result of his army service. The Tribunal acknowledges that it is reasonable to assume that any separation of the applicant from her spouse’s children will likely contribute to some emotional and physical hardships endured by all parties. The tribunal notes that the applicant has no dependent children in Australia, under the age of 18 for whom she has responsibility.
The Tribunal notes that the applicant’s blind son, who is living in Singapore with his grandparents, may receive some emotional and physical benefits from being reunited with his mother, as might the applicant if she visits Singapore upon her return to Malaysia. The Tribunal notes the statement made by Ms Tan in the hearing, that her 11 year old son has always lived under the care of her parents.
The applicant acknowledged that her claimed spouse may come to Malaysia as might his children to join her there. She also stated that here is an opportunity for them to visit in the near future and then travel to Hong Kong for a promised holiday.
The Tribunal accepts that some hardship may result from the applicant no longer caring for her 5 dogs but believes that appropriate arrangements for their well-being could realistically be made, particularly as she stated that the arrangements have commenced to take them to Malaysia.
The Tribunal acknowledges the statement that the applicant intends to close the businesses rather than sell them. This is in part because she wants to ensure that she does not contravene her visa conditions. The tribunal acknowledges that this may cause some hardship for employees but notes that there are a substantial number of vacancies in the hospitality industry. The applicant also stated that she intends to give all of the staff 2 weeks paid notice.
The Tribunal has considered that the changes experienced by the staff in the various businesses will likely cause some anxiety and potential hardship but no more than would normally be experienced any time a business closes, changes ownership or restructures.
An assertion was made by the applicant in her statement to the ABF that ‘Malaysia is not a good place plus my ex-boyfriend will send gangsters after me.’ The Tribunal is of the view that the assessment of Malaysia as a place that is not good to live in is subjective. Whilst it acknowledges that societal structures and norms coupled with economic circumstances differ from Australia’s circumstances, that does not in itself make it a bad place. When questioned by the Tribunal as to what she meant by that comment, the applicant explained that it would be hard to get a job, and the pay and conditions would be much less than Australian opportunities and this would impact on her life quality and ability to assist with her son’s needs. In regards to the claim that the applicant’s ex-boyfriend would send gangsters in pursuit of her if she returned, no credible substantiating evidence was presented to the Tribunal and it does not find the claim to be credible. The tribunal places some weight on the factors relating to hardship.
The 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
The applicant claims that she believed that the visa conditions prohibited her from working but did not prohibit her from owning businesses. At best the Tribunal considers this a misinterpretation of the facts. It is the applicant’s responsibility to understand her visa conditions and abide by those conditions. She could have sought advice regarding her visa conditions prior to purchasing businesses and subsequently breaching. The Tribunal does not find the argument presented by the applicant to be persuasive. In this instance all of the circumstances in which the grounds for cancellation arose were entirely within the control of the visa holder. The Tribunal places substantial weight on this factor.
The past and present behaviour of the visa holder towards the department
There is no evidence of prior non-compliance and the applicant appears to have cooperated with the Department’s enquiries. It also notes her polite cooperation during the hearing. The Tribunal places some weight on this factor.
Whether there would be consequential cancellations under s.140
There are no consequential cancellations under section 140. The Tribunal places some weight on this factor.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal is aware that the cancellation would make the visa applicant unlawful and this would result in continuing her ongoing detention. The Tribunal is aware of the substantial number of visa applications and reviews since 2014, and that she has applied for a UK820/BS801 Partner visa which is yet to be finalised.
The visa applicant applied for a Bridging visa E-subclass 050 on 5 December 2018, this was refused on 6 December 2018 on the grounds that condition 8101 would be breached. A separate application for review of this matter has been lodged with the AAT and yet to be heard prior to this hearing. Therefore the outcome cannot be known by this Tribunal. The Tribunal places some weight on this factor.
The Tribunal notes the statement by the applicant that she has had enough and is ready to go home to Malaysia and has purchased a plane ticket. She also stated that she hoping to be granted a little time to close the businesses and arrange to transport the 5 dogs to Malaysia. When questioned by the Tribunal the applicant agreed that if she wished to apply to live in Singapore she could, as her parents reside there but she doesn’t like it there. The Tribunal places substantial weight on this factor.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The Tribunal is aware that the visa applicant applied for a XA866 Protection Visa on 1 April 2015. This was refused by the Minister’s delegate on 1 September 2015. A Review of this decision was sought at the AAT on 8/10/15 (case number 1513709). The AAT found they did not have jurisdiction due to timeframes not met.
The visa applicant commenced a Judicial review on 21 July 2017 with the Federal Court with an outcome on 4/4/18 of “Minister win”. Following this, on 28 April 2018, Ms Tan lodged an application for a UK820/BS801 Partner visa. This application remains ongoing therfore the Tribunal cannot know the outcome.

As previiously stated the visa applicant applied for a Bridging visa E-subclass 050 on 5 December 2018, this was refused on 6 December 2018. Application for review by the AAT has been submitted and the matter is due to be heard in a separate hearing prior to 17 December 2018.
Ms Tan does not have any children residing in Australia, therefore this factor is not a primary consideration and the Tribunal places no weight on it.
There is no credible evidence before the Tribunal that any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation.
The Tribunal asked Ms Tan at the conclusion of the hearing if she felt she had been given a fair hearing and was there anything else she would like to tell the Tribunal. She affirmed that she had been granted a fair hearing.
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 Subclass 030 (Bridging C) visa.
Peter Emmerton
Member

[2018] AATA 5245

11 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies