Xue (Migration)

[2019] AATA 6200

Xue (Migration) [2019] AATA 6200 (23 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mingqiang Xue
Ms Yafang He
Miss Zi Nuo Xue

CASE NUMBER:  1912777

HOME AFFAIRS REFERENCE(S):          BCC2019/459801

MEMBER:Nicola Findson

DATE:23 October 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision 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 23 October 2019 at 5:22pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 90 days – did not appear at hearing – ceased employment with sponsor – need to support wife and child – sufficient time to find sponsor – failed to commence employment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 May 2019 made by a delegate of the Minister for Home Affairs 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(b) on the basis that the applicant, as the holder of a subclass 457 (Temporary Work (Skilled)) visa, failed to comply with a condition of that visa. In particular, the delegate found that the applicant failed to comply with paragraph 8107((3)(b) of condition 8107 which states that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

3. When applying for review, the applicant provided a copy of the decision record.

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.

5. 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.

6. On 24 September 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 23 October 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

7. No response to the hearing invitation was received and the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that: the review applicant was properly invited to a hearing in accordance with s.379A(5), and the invitation has not been returned to sender. The Tribunal further notes that SMS hearing reminders were sent to the applicant on 16 October 2019 and 22 October 2019 to the mobile number he provided in the application for review. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. 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

9. 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 grounds 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?

10. 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 paragraph 8107((3)(b) of condition 8107 provides that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. Information on the decision record indicates that the applicant was granted a Subclass 457 visa on 23 March 2016 and was subject to condition 8107(3)(b).

11. According to the information in the decision record, which was provided with the application for review, the applicant was most recently nominated by Funtown Enterprises Pty Ltd to work in the nominated occupation of Chef.  The delegate’s decision records that the Department received information that the applicant had ceased employment with his sponsor on 2 July 2018. 

12. On 12 April 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOIC) on the basis that he was in breach of condition 8107.  The applicant responded to the NOICC on 13 April and 17 May 2019.  He indicated that he was working as a Chef.  However, he did not provide any further information or evidence in support of this claim.  He also urged the Department not to cancel his visa because he needed to support his wife and newborn child.

13. On 21 May 2019, the delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had ceased employment with the sponsor for a period exceeding 90 consecutive days, and had therefore breached condition 8107. The delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

14. Other than the decision record, the applicant did not provide any submissions to the Tribunal with the application for review.

15. The Tribunal has considered the evidence before it, and as there is no evidence to the contrary, the Tribunal finds that the applicant did cease employment on 2 July 2018 with the sponsoring employer who most recently nominated him for a subclass 457 visa. The Tribunal consequently finds that the period during which the applicant ceased employment exceeded 90 consecutive days.  As the applicant has not complied with paragraph 8107(3)(b),  the Tribunal finds that he has breached condition 8107.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(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

17. 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’.

18. The Tribunal wished to discuss with the applicant all of the relevant circumstances to be taken into account, including the factors set out in the Department’s guidelines, when considering whether to exercise its discretion to cancel the visa.  Unfortunately, the applicant did not avail himself of the opportunity to give his oral evidence at the hearing.  The only information he has provided to the Tribunal is the delegate’s decision record.

    The purpose of the visa holder’s travel and stay in Australia

19. The Tribunal finds that the purpose of the applicant’s travel to and stay in Australia was to work in Australia.  The Tribunal finds that the purpose of working as a Chef for the sponsor, Funtown Enterprises Pty Ltd, no longer exists as the applicant ceased working for the sponsor on 2 July 2018.  There is no evidence that the applicant has found a new approved standard business sponsor that has applied for approval of a nomination and that nomination has been approved. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists in relation to the applicant.

20. In the circumstances, the Tribunal gives this consideration only little weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

21. There is no evidence before the Tribunal that the applicant has not complied with visa conditions other than condition 8107.

22. The applicant has had an opportunity to mitigate the breach of condition 8107 by finding employment with another sponsor. The Tribunal has had regard to the applicant’s submission to the Department that he is working as a Chef.  However, there is no evidence before the Tribunal that this is so.   

23. At the time of the Tribunal’s decision, it has been about fifteen months since the applicant was employed by the sponsor. The Tribunal considers that the applicant has had sufficient time to find a new sponsoring employer and for the nomination to be approved. The Tribunal finds that the applicant’s failure to commence employment with a new sponsor after the non-compliance represents a significant breach of condition 8107, which leads it to give this factor some weight towards the visa being cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

24. The Tribunal has had regard to the limited evidence before it as to the degree of hardship that may be caused to the applicant and his wife if the visa is cancelled.   Specifically, the Tribunal has had regard to the applicant’s submission that his wife and child rely on him for support.  

25. The Tribunal observes, however, that the applicant held a temporary visa in Australia. The Tribunal acknowledges that the cancellation of the applicant’s visa would be disappointing and that there would be financial and emotional consequences.  However, the Tribunal finds that the applicant would not have had a real expectation that he would be able to remain in Australia on a permanent basis.  The Tribunal is satisfied that the applicant will be able to work and support himself and his family in China with his skills and experience as a Chef.  Accordingly, the Tribunal gives this consideration little weight in favour of the visa not being cancelled.

    Circumstances in which ground of cancellation arose   

26. The applicant did not attend the hearing or provide any submissions to the Tribunal about the circumstances in which the ground of cancellation arose nor evidence as to why his visa should not be cancelled.  The Tribunal gives this consideration little weight towards the visa not being cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

27. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.  The Tribunal gives these consequences some limited weight in favour of not cancelling the visa.

    Past and present conduct of the visa holder towards the department

28. According to the delegate’s decision record, there is no evidence that the applicant has been uncooperative towards the Department.  The Tribunal gives this little weight towards the visa not being cancelled.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate, or circumstances factors

29. This matter is not relevant to the Tribunal’s consideration as the visa was not cancelled on this basis.

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

30. There is no evidence before the Tribunal regarding this matter. The Tribunal gives no weight to this consideration.

    Whether there would be consequential cancellations under s.140

31. The delegate decision records that there are two dependants of the applicant, Ms Yafang He and Miss Zi Nuo Xue.  They will be subject to cancellation pursuant to s.140 of the Act if the applicant’s visa is cancelled. 

32. The Tribunal notes that the visas of the applicant’s wife and child were granted on the basis of being members of his family unit and it is the intended consequence of the legislation that members of the same family have the same visa status.

33. For these reasons, the Tribunal gives this consideration limited weight towards the visa not being cancelled.

    Any other relevant matters 

34. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation. 

    CONCLUSIONS

35. The Tribunal has carefully considered and weighed all of the relevant circumstances of the applicant in this case. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.

    DECISION

36. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Nicola Findson
    Member