Yang (Migration)

[2021] AATA 359

Yang (Migration) [2021] AATA 359 (8 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lin Xiao Yang

CASE NUMBER:  2009432

HOME AFFAIRS REFERENCE(S):          BCC2019/6176558

MEMBER:Marten Kennedy

DATE:8 February 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 08 February 2021 at 11:38am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) – Subclass 482 (Temporary Skill Shortage) – employer’s approval as standard business sponsor cancelled – discretion to cancel visa – employer bankrupt and ceased trading – not able to secure alternative employment or sponsorship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), (3), 140, 140M
Migration Regulations 1994 (Cth), r 2.43(1)(l)(iv)

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision dated 28 May 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) of the Act on the basis that a prescribed ground for cancellation applied. Specifically, the delegate found that the standard business sponsor who had nominated the visa holder for the visa (HB Star Pty Ltd) had been the subject of a decision to cancel its approval as a standard business sponsor. This was a prescribed ground for cancellation of the corresponding visa as provided for at r.2.43(1)(l)(iv) of the Migration Regulations 1994.

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

4. The applicant appeared before the Tribunal on 8 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.

   CONSIDERATION

5. 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)(g); namely that a prescribed ground for cancelling the visa applies to the holder.

6. Regulation 2.43 of the Regulations sets out specific grounds for cancelling visas for the purposes of subsection 116(1)(g) of the Act.  Reg. 2.43(1)(l) applies to subclass 482 visas and incorporates a situation where the holder of the visa is a primary sponsored person in relation to a standard business sponsor, where the sponsor has been cancelled pursuant to section 140M of the Act.

7. If I am satisfied that the ground for cancellation is made out, I 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?

8. Departmental records establish that the visa was granted to the applicant on the basis of approval of a nomination by HB Star Pty Ltd, which at the time was an approved standard business sponsor.

9. Departmental records further establish that on 20 November 2019 a delegate of the Minister, acting pursuant to section 140M of the Act, cancelled the approval of HB Star Pty Ltd as a standard business sponsor.  The applicant confirmed his understanding that this issue was behind why his visa had been cancelled.

10. In light of the Departmental records, I am satisfied that the ground for cancellation in s.116(1)(g) and r.2.43(1)(l) 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

11. 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’.

12. The applicant provided a brief written submission to the delegate.  The applicant pointed out that he had worked legally and paid taxes in Australia, and he and his spouse planned to buy a home in their hometown in China.  The applicant mentioned that he believed visa cancellation would negatively influence his own life because he did not have parents and had no support from family in China.

13. At the hearing, the applicant explained to me that his preference would be to remain in Australia in order to work in his occupation at higher Australian wages, but as he has not been able to find work he wishes to return to China once he has been able to access his superannuation and travel again becomes possible.

14. I turn to consider the matters identified in policy.

15. As to the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia, I am conscious that the visa was granted to the applicant for the purpose of enabling him to work for his approved sponsor as a butcher or smallgoods maker, within the framework of the temporary work visa scheme. I mentioned to the applicant that I was concerned that the particular visa I was dealing with was granted for the purpose of working in a specified occupation with a particular approved employer, and that if the visa were to be effectively reinstated, on the evidence before me it would be done in a context of no approved sponsoring employer in place and no approved position. I suggested this was a difficult discretionary request of the Tribunal.

16. The applicant shared my surprise that he had not bee able to secure alternative employment in his occupation, even despite the COVID-19 pandemic.  The applicant told me that employers are not willing to assist him given his migration status.  The applicant told me that he had last worked for his employer at the beginning of 2020 and has been surviving since then on superannuation funds he accessed under hardship.  The applicant has not attempted to secure employment or alternative sponsorship outside of Adelaide, as he considered he was best to remain in Adelaide during the pandemic.

17. In the applicant’s circumstances, as he has not secured work in his occupation in some time, the original purpose of his travel to and stay in Australia is no longer being served, and would not be served by the effective reinstatement of the subclass 482 visa.  I see no real prospects for the applicant of again being able to work for an approved sponsor in his nominated occupation.  This weighs heavily in favour of cancelling the visa.

18. I have been unable to identify any compelling need for the applicant to remain in Australia.  I accept the applicant’s expressed preference to remain in Australia and work in his occupation at higher Australian wages, but this simply does not reflect the applicant’s circumstances many months after his sponsor ceased trading.  The applicant’s understandable aspirations in this regard do not constitute a compelling need to remain in Australia.  On the applicant’s evidence, the applicant’s continued presence in Australia without employment appears to be a source of hardship in itself.

19. I have no evidence to suggest that the applicant has not complied with visa conditions on either the substantive visa prior to its cancellation or on the bridging visa he has held.

20. As to the degree of hardship that may be caused (financial, psychological, emotional or other hardship) by the visa cancellation, the applicant told me that he is from Lanzhou in Gansu province in China.  He would return to that city when he is able to depart Australia.  The applicant has described having no family support in China, and predicts he will need to rent accommodation when he returns. The applicant also predicts that he may have difficulty securing work on return, and even if he did it would not be paid at Australian rates.

21. I accept that the applicant would face financial hardship on his return to China, but the applicant finds himself in an unfortunate financial position generally, including as to his circumstances in Australia.

22. As to the circumstances in which ground of cancellation arose, the applicant told me that his employer went bankrupt and ceased trading.  I recognise 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 and in that sense, I accept that the sponsor’s bankruptcy was beyond the applicant’s control.  However, I also take into account that the applicant has not since secured alternative employment or sponsorship, and restate the observations I have made above in relation to the purpose of the applicant’s travel to and stay in Australia.  I accord less weight to the fact that the circumstances in which the ground for cancellation arose were beyond the applicant’s control in these circumstances.

23. The applicant confirmed that his spouse travelled to Australia with him as a secondary visa holder.  I accept that the applicant’s spouse’s visa has been subject to a consequential cancellation under s.140 of the Act. The applicant’s spouse did not give evidence to the Tribunal, but the applicant told me that she had also worked for the sponsor and had not found work since.  The applicant did not identify any hardships specifically faced by his spouse that we had not already discussed in respect of him.  The applicant and his spouse do not have children.

24. As to whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention, I am mindful that the applicant will have limited options to apply for a further substantive visa while remaining in Australia.  I also recognise that the applicant and his spouse may face difficulty arranging travel to China during the COVID-19 pandemic, but am also mindful of measures put in place by the Australian government to accommodate this difficulty.  I do not consider that the applicant is likely to be liable to detention as an unlawful non-citizen in these circumstances, provided he makes his circumstances known to the Department.

25. The applicant did not raise any concerns regarding Australia’s international obligations, including non-refoulement.  The applicant mentioned that he had borrowed a lot of money to travel to Australia, and doubted his superannuation entitlements would be sufficient to pay back the money he owed.  I do not consider that the applicant’s financial concerns in this regard raised matters to be addressed in the context of Australia’s international obligations.

26. The applicant did not otherwise identify any strong ties to Australia, or any other relevant matters for my consideration.

27. On balance, I place significant weight on the fact that the purpose of the applicant’s travel to and stay in Australia is no longer being served.  Taking into account all of the applicant’s circumstances, this important factor in my view justifies cancellation of the visa.  I can identify no compelling need for the applicant to remain in Australia.

28. While I accept that the applicant will face a degree of financial hardship upon return to China, he and his spouse faces unsustainable financial circumstances in Australia.  The applicant’s circumstances in Australia lead me to place less weight on the financial hardship he would face if the visa was cancelled and he were to return to China.

29. I am otherwise not persuaded that there are any other countervailing factors that would justify the effective reinstatement of the applicant’s visa in the applicant’s or the applicant’s spouse’s circumstances as they are known to me.

30. I would also cancel the visa, and so will affirm the decision under review.

    DECISION

    The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Marten Kennedy
    Member