Thurasit (Migration)

Thurasit (Migration) [2021] AATA 1850 (19 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Jutharat Thurasit
CASE NUMBER:  2001313
HOME AFFAIRS REFERENCE(S):          BCC2019/756257
MEMBER:Michael Cooke
DATE:19 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 19 April 2021 at 2:30pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – employer’s sponsorship cancellation/bar – no response to department’s notice or tribunal’s invitation to comment – discretion to cancel visa – visa, study and work history – financial hardship – expectation to apply for permanent residency – secondary applicant partner not currently in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 8, condition 8107
CASE
Hasran v MIAC [2010] FCAFC 40
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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 breached condition 8107. 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 was represented in relation to the review by her registered migration agent.
On 15 September 2020 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting her to provide comments on information that it considered would be part of the reason for affirming the decision under review, in writing.
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MS JUTHARAT THURASIT
I am writing in relation to the application for review made by you in respect of a decision to cancel your Subclass 457 (Temporary Work (Skilled)) visa.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·The Department received written notification from your sponsor, Kinn Niyom Pty Ltd, advising that you ceased employment with them effective 21 April 2019.
·It appears that you have ceased employment with your sponsor for a period exceeding 60 consecutive days.
·Condition 8107 was attached to your subclass 457 visa that was granted on 08 February 2017.
This information is relevant to the review because subclause 8107(3)(b) to Schedule 8 of the Migration Regulations 1994 states that condition 8107 is breached if the visa holder ceases employment and the period during which they cease employment exceeds 60 consecutive days. Section 116(1)(b) of the Migration Act 1958 states that a visa may be cancelled if the visa holder has not complied with a condition of the visa.
The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 29 September 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided any comments or response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal.
The effect of s.363A of the Act is that if the review applicant has no entitlement to a hearing. Furthermore, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40.
In view of the above the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.
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?
s.116(1)(b) - non-compliance with conditions
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(3)(b) was attached to the applicant’s visa. This condition requires that if the holder ceases employment - the period during which the holder ceases employment must not exceed 60 consecutive days.
It appears from information on the Departmental file that:
·The first NOICC was sent to the applicant on 16 May 2019 and the ground for cancellation identified in this notice was s 116(1)(g) and reg 2.43(1)(l)(iv) – sponsorship cancellation/bar.
·The applicant’s representative responded to this NOICC with submissions dated 30 May 2019, addressing s 116(1)(g) ground of cancellation and the discretion factors.
·The Tribunal is unable to ascertain from the Departmental file if the Department actioned the first NOICC and then cancelled the applicant’s visa at this point in time.
·The employer apparently then emailed the Department on 16 December 2019 advising that the applicant had ceased working on 21 April 2019 due to their sponsorship cancellation/bar.
·Subsequently, the Department issued a second NOICC on 30 December 2019, which identified the ground for cancellation as s.116(1)(b) – breach of visa condition.
·The Tribunal observes that there were/are no submissions in respect of this NOICC made by the applicant or her representative.
·On 22 January 2020, the Department made its cancellation decision based on the s.116(1)(b) ground.
The visa applicant (the applicant) - through her representative - did respond to the initial Notice of Intention to Consider Cancellation and provided reasons why she did, or did not, agree that there were grounds for cancellation. They read as follows:
As described above, our client has been in Australia for more than a decade, since 2008. She has always been a model student completing all her studies and abiding by her visa conditions. (Appendix 1)
In order to further her qualifications and skills, her intention was to work in Australia and to gain further knowledge and experience to complement the studies she has completed in Australia.
As she was granted with her Subclass 457 prior to 18 April 2017, she is eligible for transitional arrangements for the Employer Nomination Scheme (Temporary Transition Stream) (Subclass 186) which means she is eligible for permanent residency even though her occupation is on the Short Term Skilled Occupation List. This opportunity is only available up until March 2022 when the transitional arrangements will no longer be in effect.
She is currently still actively looking for employment and another employer who would be willing to sponsor. Upon successful transfer of nomination under another approved sponsor, her eligibility for permanent residency would still remain. (Appendices 6 and 7)
Should her visa be cancelled she will become an unlawful non-citizen and must return to Thailand. This would then deprive her of her only opportunity to apply for permanent residency especially where her current circumstances were not a result of her conduct but was merely due to her employer’s situation, which is also currently under review.
We also note that as our Client would be departing Australia as an unlawful non-citizen (upon cancellation), she may be subject to a three years exclusion period in which she would not be able to return to Australia on any temporary visa.
We submit that the Visa Applicant is in serious financial hardship without ability to work. (Appendix 6) Even if she were to appeal the visa cancellation decision, this would incur a large number of costs which she would not be able to bear including review application fees and professional legal fees. Furthermore, if her visa was cancelled, she would only be able to remain in Australia on a Bridging Visa E which would carry a ‘No Work’ condition. The added living costs would be unbearable for the Visa Applicant.
We submit that this is a driving need for which our Client needs to stay in Australia with ability to work and look for new employment.
We therefore submit that the Client has a compelling need and purpose to remain in Australia which includes (but is not limited to):
a. She is actively looking for employment in Australia;
b. The consequences of cancelling her visa is a deprivation of her rightful opportunity to apply for permanent residency; and
c. Should her visa be cancelled, there will be added costs and inability to work associated with her review application.
These are all factors which should be weighed in favour of not cancelling the visa.
The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.
Our Client has held multiple visas whilst in Australia and has never been found of any instances of non-compliance. Even when her previous employer, Kinn Thai Castle Hill Pty Ltd ceased operation, she obtained leave and did not work until her new nomination was approved in July 2018. This was two months after her current Sponsor commenced trading.
All other visa conditions have always been substantially complied with. For any periods of nonemployment, they have always been out of our Client’s control. She has never voluntarily ceased employment. It has always been a consequence of her employer’s decision.
All these factors should weigh in favour of not cancelling her current Subclass 457 visa as these show that she had no intention to disregard her visa conditions. Instead, she understood the seriousness of breaching her visa conditions which could lead to visa cancellation, s 48 bar and 3 year exclusion from Australia upon departure from Australia.
Therefore, we submit that the Client had by all of its means tried to reduce or prevent breaching her visa conditions. From what was in her control, she had always substantially complied with her visa conditions.
Hence, her visa should not be cancelled.
The Tribunal has provided the applicant with a further opportunity to comment on the cancellation pursuant to s.359A of the Act. She has chosen not to respond to the Invitation and has lost her right to a hearing as a result.
The applicant was informed by the Tribunal that the Department received written notification from her sponsor, Kinn Niyom Pty Ltd, advising that she ceased employment with them effective 21 April 2019, meaning she ceased employment with the sponsor for a period exceeding 60 consecutive days. Furthermore, the Tribunal notes that she has not provided any information or evidence to the Tribunal which indicates that she is the subject of a new nomination which has been approved.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) 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’.
It appears that the applicant has been the subject of two cancellations. One, on 16 May 2019, which seems to have not been proceeded with by the Department. This was based on a different subregulation to the one under consideration in this review. The second one (the subject of this review) was made on 30 December 2019. The applicant’s then representative issued a comprehensive submission in response to the first NOICC in which he addressed the discretionary considerations. The Tribunal is satisfied that the considerations in the present decision mirror the considerations found in the first Departmental cancellation. Therefore, despite there being no current submission, additional information or oral evidence before the Tribunal - it accepts the points made in the submission and has included them in the instant decision - where appropriate.
Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:
·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 applicant (her former representative informs) came to Australia in 2008 on a Student Visa and studied English courses, a Diploma of Tourism, Business and Accounting courses later moving onto Cookery qualifications. The highest qualification she obtained was in Cookery which was a Certificate III.
The applicant’s representative has argued she has a ‘compelling need’ to remain in Australia because she wished to pursue an opportunity for permanent residency to which the representative suggests some perceived entitlement.
Thus, this (perceived) right to eventual permanent residency will (theoretically) be impugned by cancellation. The Tribunal notes her argument but gives it minimal weight because a Subclass 457 visa - though it may have been a gateway to permanent residency - was only ever a Temporary visa. It never provided an entitlement to permanent residency. In any case the applicant has seen her Subclass 457 visa cancelled by the Department because her former employer notified the Department that the applicant no longer worked for that nominator and she has not found a new approved nominator with 60 days of her departure date from her nominator employer (21 April 2019).
As regards claims of employment and income loss, the applicant has not provided any contemporary information or taken up the opportunity to give oral evidence and update the Tribunal on how her representative’s claims about income loss can be validated for the purposes of the review. The Tribunal finds, therefore, no evidence that the applicant does have a compelling need to remain in Australia.
The Tribunal, having examined all her claims, gives this consideration significant weight in favour of cancellation.
·the extent of compliance with visa conditions
The applicant did not comply with condition 8107(3)(b) of her visa when she ceased employment with her sponsoring employer for more than 60 consecutive days. There is no evidence that the applicant has not complied with previous visa conditions (other than the above 8107) on her present BVE.
The Tribunal gives this consideration some weight against cancellation.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant’s representative has corresponded with the Department regarding this consideration previously. Her representative made the following submission:
As she was granted with her Subclass 457 prior to 18 April 2017, she is eligible for transitional arrangements for the Employer Nomination Scheme (Temporary Transition Stream) (Subclass 186) which means she is eligible for permanent residency even though her occupation is on the Short Term Skilled Occupation List. This opportunity is only available up until March 2022 when the transitional arrangements will no longer be in effect.
She is currently still actively looking for employment and another employer who would be willing to sponsor. Upon successful transfer of nomination under another approved sponsor, her eligibility for permanent residency would still remain. (Appendices 6 and 7)
Should her visa be cancelled she will become an unlawful non-citizen and must return to Thailand. This would then deprive her of her only opportunity to apply for permanent residency especially where her current circumstances were not a result of her conduct but was merely due to her employer’s situation, which is also currently under review.
We also note that as our Client would be departing Australia as an unlawful non-citizen (upon cancellation), she may be subject to a three years exclusion period in which she would not be able to return to Australia on any temporary visa.
We submit that the Visa Applicant is in serious financial hardship without ability to work.(Appendix 6) Even if she were to appeal the visa cancellation decision, this would incur a large number of costs which she would not be able to bear including review application fees and professional legal fees. Furthermore, if her visa was cancelled, she would only be able to remain in Australia on a Bridging Visa E which would carry a ‘No Work’ condition. The added living costs would be unbearable for the Visa Applicant.
We submit that this is a driving need for which our Client needs to stay in Australia with ability to work and look for new employment.
We therefore submit that the Client has a compelling need and purpose to remain in Australia which includes (but is not limited to):
a. She is actively looking for employment in Australia
b. The consequences of cancelling her visa is a deprivation of her rightful opportunity to apply for permanent residency; and
c. Should her visa be cancelled, there will be added costs and inability to work associated with her review application.
These are all factors which should be weighed in favour of not cancelling the visa.
As explained above, the consequences of visa cancellation would cause serious financial hardship to our Client.
Furthermore, all the effort she has placed in the opportunity to migrate to Australia would go to waste causing significant psychological, emotional and physical hardship to her.
The Tribunal acknowledges the applicant’s earlier claims made to the Department and as outlined by her agent. The representative argued that her predicament was the result of ‘circumstances beyond her control’. In particular, he claims the initial decision to cancel her visa emanated from a decision made by her employer to change ownership of the firm. This decision was apparently subsequently not continued. The applicant, subsequently, has been terminated by her (most recent) employer for other reasons. Thus, her initial claim of ‘circumstances beyond her control’ (generally regarded in policy as not being an acceptable basis for cancellation) - no longer apply. Furthermore, any claims must be juxtaposed with her failure to respond to the Tribunal Invitation pursuant to s.359A wherein she could have provided any contemporary evidence of hardship. She would also have secured her right to a hearing where her visa situation could have been explored.
In the light of this conclusion, the Tribunal gives the above considerations some weight in favour of cancellation.
·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 ground for cancellation arose when the applicant ceased employment with her approved sponsoring employer for more than 60 consecutive days. Information available to the Tribunal indicates the cessation notification was due to the sponsor’s termination of her employment. She has provided no evidence that she was able to comply with paragraph (3)(b) of condition 8107 of her previous visa. The Tribunal, furthermore, has no evidence before it that she has found a new and approved nominator/employer or been granted another visa or departed Australia. She has chosen to remain in Australia pursuant to a BVE until this case is resolved.
In view of her failure to provide any contemporary information on her current status in response to Invitation - the Tribunal gives this consideration significant favourable weight in favour of cancellation.
·past and present behaviour of the applicant towards the Department
There is no information before the Tribunal to suggest that the applicant has been uncooperative with the Department or Departmental staff though she did fail to respond to the Departmental NOICC. She is the subject of a current BVE.
The Tribunal gives this consideration some favourable weight against cancellation.
·whether there would be consequential cancellations under s.140
According to Departmental records, Waranya Boonma (DOB [date redacted]) is the applicant’s spouse/de-facto partner and holds a visa because of the applicant. Her visa was granted based on being ‘a member of the family unit’ of the applicant, who is the primary visa holder. There is no information before the Tribunal to indicate that the above person has applied for a visa independent of the primary visa holder, or that she has ceased to be a member of the applicant’s family unit. Should the Tribunal decide to affirm the cancellation, an automatic consequential cancellation by operation of law under s140 of the Act (of the secondary visa of the above person) will take place. However, the delegate noted, and the Tribunal is aware that above secondary visa applicant is not currently within Australia.
The Tribunal, in view of this, grants this consideration some weight against cancellation.
·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 applicant was granted a BVE on 31 January 2020 and her visa status is lawful. If the visa cancellation were upheld by the Tribunal, the applicant will immediately become an unlawful non-citizen and will need to rectify her visa status. She may be liable for detention under s189 and removal under s198 of the Act if she did not voluntarily depart Australia. There is no evidence that indefinite detention is a possible consequence of cancellation.
If the applicant were to apply for a further visa - she could be subject to Public Interest Criteria 4013 and 4014.
The Tribunal gives this consideration some weight against cancellation.
·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
In considering whether to cancel the applicant’s visa the Departmental policy guidelines suggest assessing whether the cancellation would result in Australia being in breach of its international obligations with regards to various agreements to which Australia is a signatory. These include the obligation in relation to non-refoulement in accordance with the 1951 Convention Relating to the Status of Refugees and the amendments approved by its 1967 Protocol. It also refers to Australia’s responsibilities regarding the rights of any children under the age of 18 years in accordance with the Convention on the Rights of the Child (CRC), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the International Covenant on Civil and Political Rights (ICCPR).
The applicant has not made any claim or provided any evidence that, were she to return to her country of origin, she would face persecution; death, torture, cruel, inhuman or degrading treatment or punishment. She did not make any claims that she was entitled to Australia’s protection or entitled to a Protection visa. The applicant has also not made any claims with regards to her rights under the CAT or ICCPR.
There is no information before the Tribunal to indicate the applicant has any children. Therefore, the consideration of family unity under the CRC is not an issue in this case.
Furthermore, there is no information before the Tribunal to indicate the circumstances of this case are such that they would engage Australia’s international obligations.
Taking all this into account and considering the applicant has provided no information to the Tribunal and foregone her right to a hearing (in which to further elaborate on this consideration) - the Tribunal finds it gives this consideration significant weight in favour of cancellation.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
·any other relevant matters
The applicant did not present any evidence concerning contemporary relevant matters to the Tribunal. She did not respond to the Departmental Notice of Intent to Cancel her visa nor the Tribunal’s Invitation pursuant to s.359A of the Act. She previously had dealings with the Department concerning an earlier Departmental cancellation. This appears to have been discontinued by the Department. In that case her representative raised a variety of issues concerning potential hardship and the issue of her securing eventual permanent residency. These issues have all been considered by the Tribunal in this decision and not given favourable weight.
The Tribunal has taken her full circumstances into consideration including previous correspondence to the Department on an earlier discontinued cancellation matter.
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 457 (Temporary Work (Skilled)) visa.
Michael Cooke
Senior Member

[2021] AATA 1850

19 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction