Yang (Migration)

[2019] AATA 4535

Yang (Migration) [2019] AATA 4535 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zunfeng Yang

CASE NUMBER:  1914427

HOME AFFAIRS REFERENCE(S):           BCC2019/460940

MEMBER:Jennifer Cripps Watts

DATE:25 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 July 2019 at 10:36am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 90 days – occupation of Building Associate – dispute with sponsor over performance – no further approved nominations – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8107

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89     

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 June 2019 made by a delegate of the Minister for Home Affairs (the delegate) to cancel the applicant’s 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 he breached a condition of his visa: condition 8107(3)(b), because he ceased employment with his sponsor for more than 90 days and the delegate decided that the grounds for cancelling the visa outweighed the reasons not to cancel it. 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. On 6 June 2019 the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision.  His matter was constituted and, on 5 July 2019, an invitation to attend a hearing was sent.  The hearing was scheduled at 9:30am on 26 July 2019.  In the invitation, the applicant was asked to respond and it was requested that if he had any additional information he wished to rely on he should provide it prior to the hearing.

4. On 25 July 2019, the day before the scheduled hearing, the Tribunal received an email from the applicant (from the same email address he provided in his review application):

   ‘I am writing to you about the hearing invitation to me, I want to inform you that I have decided not to attend the hearing as I have been feeling unwell recently. I disagree with immigration's decision and have explained to them. , I authorize you to make a final decision based on my all previous information and evidence submitted.

   I am looking forward to hearing from you soon

   Thanks and best regards

   Zunfeng Yang’

5. Since lodging the review application on 6 June 2019, the applicant has provided no other or additional information relating to his visa cancellation.  The Tribunal considered the applicant 25 July email, cancelled the scheduled hearing and has proceeding to make a decision on the evidence before it, as requested by the applicant in writing.

6. 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

7. 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.

8. The applicant’s Subclass 457 visa was granted on 4 November 2016 on the basis of an approved nomination by Anderson Recruitment and Training Pty Ltd (the sponsor) that was approved on the same date.  The nominated occupation was Building Associate (ANZSCO 312112).

9. On 15 April 2019, the Department sent the applicant a Notice of Intention to Consideration Cancellation (NOICC) of his visa, under the general power of s.116 of the Act, on the basis that he had breached his visa condition: 8107(3)(b).

10. Condition 8107(3)(b) attached to the applicant’s Subclass 457 visa and required that if he ceased employment with the sponsor, it could be for no more than 90 days, during which time he could resume employment with the sponsor or an associated entity or find a new sponsor.

11. The information contained in the NOICC was, essentially, that the applicant had ceased working for the sponsor on 3 May 2017.  The applicant was invited to respond and responded by email on 16 May 2019 with the following statement:

    ‘…I would like to bring to the department’s attention, I did cease my employment with my previous sponsor since I was not happy with their management and fairness which caused me so much trouble with my employment in Australia...’

12. No other information was provided by the applicant.  He did not claim, nor did he provide any evidence of, compelling or compassionate circumstances to the Department that might have supported his visa not being cancelled. On 6 June 2019, the applicant’s visa was cancelled.

13. The Tribunal has had regard to relevant matters, including information in both the Department and Tribunal files when reaching its decision.

    Does the ground for cancellation exist?

14. 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) attached to the applicant’s visa. This condition requires, essentially, that he not cease employment with his sponsor for more than 90 days.

15. The Tribunal considers that the applicant’s 16 May 2019 email response to the NOICC indicates that he does not dispute that he ceased working for the sponsor no later than 3 May 2017.  He has made no further representations about the matter to the Tribunal.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(3)(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’.

    Consideration of discretion

18. 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’.

    Purpose of the applicant’s travel and stay in Australia and need to remain in Australia

19. On 4 November 2016, the applicant was granted a Subclass 457 visa for four years (which would have naturally ceased on 4 November 2020) in the occupation of Building Associate relating to an approved nomination by the sponsor.  On the evidence, it is the Tribunal’s view that it is not in dispute that the applicant ceased working for the sponsor no later than 3 May 2017. 

20. He has made no claim and provided no evidence to satisfy the Tribunal that he is now the subject of a new nomination. 

21. From May 2017 up to the time his visa was cancelled on 6 June 2019, the applicant has remained residing in Australia for a purpose other than that for which the visa was granted.  Even though he has been invited, in writing, to provide information in support of his review, he has provided none that addresses this issue.

22. On the evidence, the applicant has not worked for an approved sponsor in the skilled occupation for which he was nominated from May 2017, more than two years. 

    Extent of compliance with visa conditions

23. On the basis that the applicant has not disputed that he ceased working for the sponsor in May 2017 and that he has not provided any information indicating he has found a new sponsor, the Tribunal considers the non-compliance with condition 8107(3)(b) to be very substantial.  He only worked for the sponsor for around six months of his four year visa.  In addition, there is no evidence before the Tribunal that the applicant contacted or made any attempt to contact the Department to advise of his change of circumstances. 

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

24. The applicant has made no claim and provided no evidence that he would suffer any financial, psychological, emotional or other hardship that may be caused.  The Tribunal has little to rely to establish what the applicant’s personal circumstances are, because he has provided so little evidence.  On the evidence that is available, the applicant is a national of China who is 28 years of age.  He appears to have arrived in Australia in December 2016 holding the Subclass 457 visa that is the subject of this review.  At that time he would have been 26 years of age. 

25. The Tribunal has no reason to think the applicant cannot return to his home country or any other country where he would be entitled to reside.  He has made no claim and provided no evidence that he would suffer any financial, psychological, emotional or other hardship if his visa is cancelled and he is required to depart Australia.  He may feel he would be inconvenienced, or he may be making arrangements to depart, or he may be planning to regularise his visa status.  The Tribunal cannot make any findings about his situation in this regard because the applicant has not engaged in the review process of his visa cancellation by providing any information at all, other than advising that he would not attend his hearing.

    Circumstances in which the cancellation arose

26. Relying on the statement the applicant provided in response to the NOICC, he says that he left his employment with the sponsor because he ‘…was not happy with their management and fairness which caused me so much trouble with my employment in Australia’.  He has provided no other information or documents that indicate why he was not happy or why he feels he was treated unfairly.  He has simply made a statement that was not accompanied by any substantiating evidence.  On the basis of this being the only information available to the Tribunal relating to the reasons why the applicant ceased his employment, the Tribunal is not satisfied that there were any circumstances that were beyond his control.

    Past and present behaviour towards the Department

27. The applicant appears to have been somewhat unco-operative with the Department.  On the Department file, and contained in the delegate’s decision, it is noted that the applicant was requested to provide onshore contact details and that he did not respond by providing them.  Although the Tribunal notes that his details must have been obtained somehow because the applicant responded to the NOICC that was sent to the same email address the Tribunal has in its system on 15 April 2019.  His first response was to request a five day extension to respond and his subsequent response was the one referred to earlier in this decision in his email of 16 May 2019.

    Whether there would be consequential cancellations under s.140

28. There is no information before the Tribunal indicating that the applicant has any dependants, or that there are any dependants who would be affected by the cancellation of the applicant’s visa.

    Mandatory legal consequences

29. If the visa is cancelled, the applicant will be subject to a s.48 Act bar on applications he can make onshore, with some limited exceptions.  He will become an unlawful non-citizen and will be liable for detention under s.189 and removal from Australian under s.198 of the Act if he does not apply for another visa or depart Australia.

30. There is no information before the Tribunal that indicates the applicant cannot depart Australia if his visa is cancelled.

    International obligations, including non-refoulement and best interests of children

31. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

32. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

33. The applicant has made no claim and provided no evidence that he would suffer harm if he returned to his home country, China.

34. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. 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.

    Other relevant matters

35. The Tribunal’s overall view, having considered all relevant matters, is that this review application was lodged for less than genuine reasons.  The applicant has made no effort to engage in the review process.  He made little attempt to engage with the Department either relating to the visa cancellation.  He admits the breach of his visa conditions and has declined to attend the Tribunal hearing.  He provided the Tribunal with no additional information or evidence, despite being invited to do so in writing.  Any further application for review of his matter would be, in the view of the Tribunal, in this applicant’s particular circumstances, futile.

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Jennifer Cripps Watts
    Member