Yang (Migration)

[2021] AATA 361

Yang (Migration) [2021] AATA 361 (10 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yunqi Yang
Mr Bo Liang
Master Weijian Liang
Miss Yinyi Liang

CASE NUMBER:  2013582

HOME AFFAIRS REFERENCE(S):          BCC2020/1620404

MEMBER:Antonio Dronjic

DATE:10 February 2021

PLACE OF DECISION:  Melbourne

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 10 February 2021 at 10:40am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ceased employment for more than 90 days – sponsoring business closed with no notice shortly before visa due to expire – application for visa to work for new sponsor refused – no new sponsorship in 20 months since then – discretion to cancel visa – members of family unit – decision under review affirmed for first applicant, no jurisdiction for other applicants

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1999 (Cth), Schedule 8, condition 8107(3)(b)

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Rani v MIMA (1997) 80 FCR 379
Tien 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 31 August 2020 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(1)(b) on the basis that the first named applicant (the applicant) breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 90 consecutive days. 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.

   Background to the cancellation of the applicant’s visa

4. The decision record of 31 August 2020 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 15 September 2016, the applicant was granted a Subclass 457 visa to remain valid until 15 September 2020;

   ·The standard business sponsor who nominated the applicant to work as an architectural draftsperson was Skycrest Constructions Pty Ltd (the sponsor);

   ·The sponsor informed the Department that the applicant ceased her employment on 4 June 2019;

   ·A notice of intention to consider cancellation (NOICC) was issued to the applicant on 3 July 2020;

   ·The applicant responded to the NOICC on 8 July 2020; and

   ·On 31 August 2020, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 3 September 2020 for review of the visa cancellation and with her application submitted a copy of the primary decision record.

6. On 5 January 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 4 February 2021.

7. On 28 January 2021, the applicant wrote to the Tribunal stating that her visa was unfairly cancelled, that her sponsor never gave her written notice of termination of her employment, that her sponsor’s GST registration was cancelled on 1 September 2019 and re-registered on 1 December 2019, that it is difficult to see how her visa could be reinstated as it would have expired on 15 September 2020 in any case, that she has been unemployed for the past 18 months and has spent all her savings, that the airfares for China are currently extremely expensive. Finally, she stated that she just wants to save some money in order to pay for the airfares and go back to China to relaunch her career. With her letter she submitted:

   ·Copies of the applicant’s correspondence with Mr David Hibbins;

   ·Copies of applicant’s superannuation query with ATO from 18 September 2019 and 24 June 2020;

   ·A copy of the ABN extract for Skycrest Constructions evidencing GST cancellation on 1 September 2019; and 

   ·A copy of the ABN extract for Skycrest Constructions evidencing GST registration on 1 December 2019.

8. The applicants appeared before the Tribunal on 4 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

9. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that her visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that she had not complied with the conditions of her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained that the applicant’s husband’s and children’s visas were automatically cancelled by operation of s.140(1) of the Act, which made the cancellation of those other visas self-executing on the cancellation of her visa.

10. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

11. The applicant is 42 years of age, and a married national of China. Her husband and son are currently in Australia. Her daughter, who is 12 years of age, departed Australia two years ago and is currently attending primary school in China. Prior to arriving in Australia as a holder of a Subclass 457 visa in November 2016, the applicant was living and working in China where she completed a Bachelor of Architecture degree and gained more than 10 years of relevant experience. Neither she nor her husband has relatives in Australia. She stated that she owns an apartment in China.

12. The applicant was granted a Subclass 457 visa on 15 September 2016, based on the sponsorship and nomination made by an Australian company, ACT Capital Developments. She was unable to commence employment at this business but was subsequently sponsored and successfully nominated to work as an architectural draftsperson at Skycrest Constructions Pty Ltd. She confirmed in her evidence that she received a copy of the visa grant letter from the Department which contained an explanation of the conditions imposed on her visa and her understanding of these conditions.

13. The applicant gave evidence that she commenced employment at Skycrest Constructions in May 2017 and continued to be employed there until June 2019. The applicant stated that the business was suddenly closed and reiterated the she never received a written notice of termination of her employment from the sponsoring business.

14. The applicant confirmed that, soon after cessation of her employment at Skycrest Constructions, she managed to find a new prospective employer, Earthtrack Solutions Pty Ltd. This business nominated her for a Subclass 482 visa but that application was refused by the Department on 19 July 2019. The applicant stated that she did not commence working at Earthtrack Solutions as she was prevented from doing so by the conditions imposed on her bridging visa. When asked by the Tribunal, the applicant stated that in September 2020 she applied for a work permit, but the Department refused her request.

15. The applicant further stated that on 26 August 2019, Earthtrack Solutions lodged an ENS nomination with the Department and that, several days later, she applied for a Subclass 186 visa. Both applications are currently pending before the Department.

16. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that she breached condition 8107 that was imposed on her Subclass 457 visa as the period during which the applicant ceased employment exceeded 90 consecutive days and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

17. The Tribunal indicated that it will take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application. The Tribunal asked the applicant if there was anything else that she wanted to raise with the Tribunal.

18. The applicant reiterated that her visa was cancelled 15 days before it was due to expire and that she never received written notice of termination of her employment from the sponsoring business. She stated that, because of the COVID19 pandemic, airfares to China are currently extremely expensive. She confirmed that she will go back to China to be with her daughter and to relaunch her career there. Upon the Tribunal’s invitation, the applicant’s representative submitted that there is nothing else he wanted to bring to the Tribunal’s attention.

19. 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

20. 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?

21. 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. Condition 8107(3)(b) requires that if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant’s visa, which was granted on 15 September 2016 and which, but for its cancellation, was valid to 15 September 2020.

22. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment with the sponsoring business on 4 June 2019. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

23. For these reasons, the Tribunal finds 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

24. There are no matters specified in the Act or Migration Regulations 1994 (the 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’.

25. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]    See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].

26. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

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

27. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Skycrest Constructions Pty Ltd as an architectural draftsperson on a temporary basis.

28. The applicant was unfortunate to lose her job in June 2019. She decided to remain in Australia and try to find a new employer. She managed to do so and on 18 June 2019, her prospective employer, Earthtrack Solutions Pty Ltd, attempted to nominate her for the position within their business. This application was refused by the Department on 19 July 2019. The applicant never commenced employment at Earthtrack Solutions as she was prevented from doing so by the conditions imposed on her bridging visa.

29. The Tribunal acknowledges that Earthtrack Solutions lodged an ENS nomination with the Department on 26 August 2019, and that several days later the applicant lodged an application for a Subclass 186 visa. Both applications are currently pending before the Department.

30. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian company which is an approved standard business sponsor, and which successfully nominated the applicant for a position within the business. The Tribunal further finds that the applicant’s Subclass 457 visa would, but for the cancellation, have ceased on 15 September 2020 in any case. 

31. As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa was 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 as the applicant ceased working for her sponsor in June 2019. The Tribunal gives significant weight to this consideration.

    The reason for and extent of the breach

32. The ground for cancellation arose when the applicant ceased working with her sponsoring employer in June 2019. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of her visa, which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor and which successfully nominated the applicant to work at the business.

33. The Tribunal is satisfied that the applicant has had ample time to find a new sponsor. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor after more than 20 months since the original cessation of employment represents a significant breach of condition 8107.

    Circumstances in which ground of cancellation arose

34. The applicant ceased her employment at the sponsoring business in June 2019. The Department did not proceed with the visa cancellation until 31 August 2020. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with another business sponsor.

35. The Tribunal accepts that the applicant may have not been advised in writing that her employment ceased. However, in her evidence she stated that in June 2019 she started looking for a new employer. The Tribunal is satisfied that the applicant knew that the sponsoring business was no longer an operating business. Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond her control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

    Past and present conduct of the visa holder towards the Department

36. There is no evidence before the Tribunal that the applicant previously breached visa conditions or that she was not co-operative with the Department.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

37. The applicant claims that, because of the COVID19 pandemic, airfares to China are currently extremely expensive. She confirmed that she will go back to China to be with her daughter and to relaunch her career there.

38. The Tribunal has taken into consideration the applicant’s evidence that in China she completed a Bachelor of Architecture degree and gained more than 10 years of relevant experience. She owns a property in China and neither she nor her husband has relatives in Australia. Her daughter departed Australia some two years ago and is attending primary school in China.

39. Considering her family composition, formal education completed in China and her work experience gained in China and Australia, the Tribunal is satisfied that the applicant and her family will be able to re-establish themselves in China.

40. Balanced against any potential hardship to the applicant and her family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

    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

41. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow her to remain in Australia. If that is the case she has the opportunity to depart Australia. Whilst her failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

1. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as she breached the 8107 condition imposed on her visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once she finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

2. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation.

3. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

   Whether there would be consequential cancellations under s.140

4. Whilst the applicant’s husband’s and children’s visas were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from her husband and children.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

5. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

6. The Tribunal is satisfied that in the circumstances of this case cancellation would not lead to removal. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

7. The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration. However, this consideration does not preclude visa cancellation. Taking into account the rights and duties of his or her parents, the Tribunal is satisfied that it is in the best interest of the applicant’s children to remain with their family.

8. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa. Based on the evidence before it, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements.

   The impact on any victims of family violence

9. There is no evidence before the Tribunal regarding this matter.

   Other relevant matters

10. The applicant stated that, because of the COVID19 pandemic, airfares to China are currently extremely expensive.

11. The Tribunal acknowledges that the applicant, her husband and son may experience difficulties in returning to China due to the travel restrictions in place as a result of the COVID-19 pandemic. The Tribunal observes that in this regard the Government has put in place several contingency options for visa holders that find themselves in Australia with limited options for returning home and that relevant information is available on the Department’s website.

12. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.

13. Having had 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. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

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

    Antonio Dronjic
    Member