Zonglong (Migration)

[2021] AATA 3109

Zonglong (Migration) [2021] AATA 3109 (7 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lin Zonglong

CASE NUMBER:  2100419

HOME AFFAIRS REFERENCE(S):          BCC2020/1796744

MEMBER:Noelle Hossen

DATE:7 July 2021

PLACE OF DECISION:  Perth

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

Statement made on 07 July 2021 at 4:11pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)– sponsor ceased operating – applicant has not complied with the condition 8107 – applicant ceased employment for more than 60 consecutive days – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994

CASES
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 January 2021 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not have an approved nomination since his employment ceased with his nominated sponsor on the 13 January 2019. He had a period of 60 days to obtain a new nomination. 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 following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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

5. 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 is attached to the applicant’s visa. This condition requires that the visa holder is employed with a sponsor that has been approved and his period of unemployment must not exceed 60 days.

6. The applicant was born on the 16 March 1983 in China. He arrived in Australia on the 29 August 2018. He had been granted a Temporary Work Visa 457 on the 13 August 2018 which was due to expire on the 13 August 2022 with a sponsor namely Sanwoo Pty Ltd.

7. His wife and children were granted an associated temporary 482 Visa on the 25 January 2019.

8. The sponsor Sanwoo Pty Ltd ceased operating and the company was deregistered on the 13 January 2019.

9. The Department sent a Notice of Intention to Cancel the Visa on the 10 December 2020.The applicant did not respond to the Notice.

10. On the 11 January 2021 the 457 visa was cancelled by the Department.

11. The applicant lodged an application for Review of the Delegate’s Decision to the AAT on the 14 January 2021.The applicant did not include any additional documents or information with his application.

12. The applicant was granted a Bridging Visa E on the 29 March 2021.

13. On the 30 November 2020 the applicant’s wife was granted a Visa as a student guardian and the eldest child was granted a student visa. Both children are now able to remain in Western Australia due to the grant of the student visa to the eldest child and the grant of a student guardian visa to the wife.

14. There is no evidence before the Tribunal that the applicant has been in employment with an approved sponsor since the 13 January 2019.

15. The Tribunal sent an invitation to the applicant to attend a hearing by post on the 27 May 2021 for a hearing on the 1 July 2021. The hearing invitation included an invitation for the applicant to provide any further documents that he would like the Tribunal to consider on or before the 24 June 2021.  On the 8 June 2021 the Tribunal advised the applicant that his hearing time had been changed to 9.30 am and not 1.30 pm on the 1 July 2021 as previously advised.

16. The initial hearing invitation was for a hearing date on the 1 July 2021 which was forwarded to the applicant by mail.

17. On the 29 June 2021 the applicant replied to the invitation by email and advised the Tribunal that he did not wish to attend the hearing and that the matter could be decided by the Tribunal on the Papers.

18. The Tribunal sought confirmation by email and by SMS that this was the case and cancelled the hearing date upon receiving confirmation from the applicant that he did not wish to attend the hearing on the 1 July 2021 at 9.30 am.

19. The applicant did not provide additional material or documents to the Tribunal.

    Consideration of discretion / conclusions

20. The nomination for the visa was approved on the 13 August 2018.The Sponsor advised the Department that the applicant had ceased employment on the 13 January 2019.The applicant has not complied with the condition 8107 (3) (b) because he was not in employment for a period exceeding 60 consecutive days.

21. There is no evidence before the Tribunal that the applicant has complied with condition 8107 (3)(b) as the last date of his employment is the 13 January 2019 and he has not been employed since that date and therefore he has not been employed for a period exceeding 60 days.

22. For these reasons, the Tribunal is satisfied 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 visa should be cancelled.

    Consideration of discretion

23. 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 (b). Procedures Advice Manual (PAM3) ‘General visa cancellation powers.

    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:

24. The Subclass 457 visa is for skilled workers from outside of Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

25. The applicant ceased his employment at the sponsoring business on the 13 January 2019.

26. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an approved business sponsor, which has successfully nominated the applicant for a position within the business.

27. The 457 visa is a temporary visa of limited duration related to working for a sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor on the 13 January 2019.

28. The Tribunal places significant weight to the considerations as set out in paragraphs 25 to 28 against the applicant’s case.

    The extent of compliance with visa conditions:

29. The ground for cancellation arose when the applicant ceased working with the sponsoring employer in January 2019.The applicant had the opportunity to rectify the breach by commencing employment with a new sponsor within 60 days.

30. The Tribunal finds that the applicant failed to commence employment with a new business that could have nominated him in more than 2 years since the original cessation of employment and this represents a significant breach of the conditions of his visa.

31. The Tribunal places significant weight on the facts as contained in paragraphs 30 to 31 against the applicant’s case.

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

32. The Tribunal accepts that the applicant may face some emotional hardship if his visa is cancelled as he has been living in Western Australia with his wife and oldest child. One of his sons has been granted a student visa on a temporary basis and his mother (the applicant’s wife) has obtained a visa as a student guardian. The other child can also live in Australia as a dependent. The hardship will be caused to the family if the visa is cancelled as the applicant will be separated from his family on a temporary basis. This is likely to cause emotional and psychological distress to the family.

33. The Tribunal does not have any evidence regarding the financial circumstances of the applicant and his family. The Tribunal does not know whether the applicant still has financial or community ties with his home country and whether the applicant will suffer financial hardship if his visa is cancelled and he is required to return to his home country.

34. The Tribunal also accepts that the applicant may face difficulties in returning to his home country due to travel restrictions caused by the pandemic. The Tribunal notes that the Australian Government has put in place several contingency plans for visa holders who find themselves in Australia with limited options of returning home.

35. The fact is however that the applicant and his family did come to Australia on a temporary visa with no expectation of remaining in Australia permanently.

36. The Tribunal does weigh these factors in favour of the applicant’s case as the Tribunal, accepts that the separation from his family will cause the applicant psychological hardship.

    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:

37. The Tribunal has no evidence before it and cannot make a finding in respect of those factors.

    Past and present behaviour of the visa holder towards the department:

38. There is no evidence that the applicant and his family have not cooperated with the Department previously. The Tribunal is unable to make a finding in respect of those factors.

    Whether there would be consequential cancellations under s.140:

39. The applicant’s wife and children have already obtained visas and are able to remain in Australia so there are no consequential cancellations under Section 140.

    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:

40. The applicant is presently the holder of a Bridging visa as a result of the Review process. If the visa is cancelled and in the absence of another successful visa application the applicant will not have visa status which will allow him to remain in Australia. If that is the case, he can depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].):

41. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any international agreements. 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.

42. Considering the circumstances, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Noelle Hossen
    Member