1417440 (Migration)

[2015] AATA 3487

1417440 (Migration) [2015] AATA 3487 (19 October 2015)

DECISION RECORD

APPLICANTS:  Mr Weiliang Lu
Mrs Pingping Ban

MRT CASE NUMBER:  1417440

DIBP REFERENCE(S):  BCC2013/1286414

TRIBUNAL MEMBER:  Steve Georgiadis

DATE:19 October 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 19 October 2015 at 6:33pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 October 2014 made by a delegate of the Minister for Immigration 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 Mr Lu had breached paragraph 8107(3)(a)(ii) of condition 8107 attached to the visa, which relates to working only with the nominator sponsor or an associated entity. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

4. The applicants appeared before the Tribunal on 25 March 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 background to this matter is summarised in the written submissions made in support of the application under cover letter of 22 October 2014.  These in part, are as follows:

9. “In December, 2011, Mr. Weiliang Lu’s 457 visa application is approved. Shortly after that, the visa holder and his wife, Mrs. Ban Pingping, arrive in Australia. Mr. Lu starts to work for his employer, JFK Engineering.

10. About a year after he commences work at JFK, the visa holder is laid off due, it is said, to financial strife on the part of the company. 

11. Around March 2013, Mr. Lu worked 3 weeks for a company called MKT. Mr. Lu tries but is unable to find a nominator during a the period between March/April and September 2013.

12. In August of that year, Mr. Lu approaches a Mrs. Guang Zeng, who presents herself as a migration agent and as representative of a labour hire company. Mrs. Zeng offers employment (and nomination) with Fostinelli Engineering and later, Downer Engineering. The position at the first of the companies never materialises, but Mrs. Zeng says she is organising an employment position and nomination through Downer.

13. In September 2013, Mr. Lu travels to China on his own and undergoes required surgery during his stay in that country and while there (in November), he is given the news that the 457 nomination application Downer had applied for has been approved.

14. She also tells Mr. Lu he cannot start work yet because preparations at the mining site where work is to take place, is still going on.

15. During this time also (while the visa holder is still in China) Mrs. Zeng advises Mrs. Ban of the 186 visa application she has lodged on Mr. Lu’s behalf in January, 2014, as per their agreement. Shortly before he leaves for Australia, Mrs. Ban is advised that their 186 application has been approved. However, no evidence of the grant letter is ever emailed or posted.

16. On February 18, 2014, Mr. Lu returns to Australia. The customs officer at the airport makes enquiries on his migration status and his nominator in particular.

17. Mr. Lu is uneasy and confused about his migration status, so in the days that follow his entering Australia, he requests / makes enquiries with Mrs. Zeng. He insists for Mrs. Zeng to organise the stamping of the visa stamp on his passport.

18. Mrs. Zeng tries to convince the visa holder that cannot get one because of the answers gave to the customs officer when he re-entered the Australia. She is unclear as to why these answers were prejudicial to Mr. Lu’s situation.

19. To reassure the visa holder, Mrs. Zeng organises a trip to a Medicare office to get his and his wife’s Medicare card (he later on realised, this was only an interim card); she also organises for Mr. Lu to do a first aid course.

20. Then in May 2014, Mr. Lu receives a notification advising him of the ‘invalid submission’ of his 186 visa application (the same one that had been previously granted).

21. In June 2014, the visa holder receives notification from DIBP regarding the initiation of action to cancel his visa on the grounds that the visa holder did not comply with condition 8107(3)(a)(ii) of his visa, namely, working for an employer other than the sponsor or an associated entity of the sponsor.”

    Does the ground for cancellation exist?

    s.116(1)(b) - non-compliance with conditions

22. 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 the visa. In this instance, condition 8107 is attached to the applicant’s visa. This condition requires an applicant, while they continue to hold a 457 visa to only lawfully work in Australia for either the sponsor or an associated entity. In the present case the standard business sponsor who nominated Mr Lu is JFK Engineering Pty Ltd (JFK).

23. At the hearing Mr Lu was asked about his employment history in Australia.  He confirmed to the Tribunal that he commenced work as a welder with JFK Engineering Pty Ltd in December 2011 and continued working there until January 2013.  He explained that due to the employer’s financial problems he left JFK and looked for work with a new employer, which he secured with MKT.

24. He said this was for work with a different employer in a “different factory”.  However, he subsequently became involved again working in the same location as the factory he had worked in with his previous employer, JFK Engineering Pty Ltd.  When asked at the hearing to explain this, the applicant told the Tribunal that the previous employer had “closed down” but that the work for prior orders was continued and undertaken by a previous Manager of JFK who had taken over the works to complete the orders that were already in place, this time under the entity trading as MKT. The applicant told the Tribunal that after a break of approximately two to three months he returned to the same site and carried out further work for about three weeks with MKT.  The applicant reiterated to the Tribunal that this was a different employer. 

25. The Tribunal notes the written submissions that around March 2013, Mr Lu worked for three weeks for MKT and that he attempted to find a nominator during the period between March/April and September 2013 but was unsuccessful. The Tribunal accepts the applicant’s evidence.  There is nothing before the Tribunal to suggest that JFK Engineering Pty Ltd and MKT are legally related entities although the Tribunal accepts a former Manager from JKF was involved in employing the applicant with MKT.

26. The applicant subsequently returned to China where he underwent a surgical procedure before returning to Australia.

27. The Tribunal is satisfied from the oral evidence before it and the written submissions above that the applicant, while continuing to hold a 457 visa, did not, only lawfully undertake work in Australia for either the sponsor or an associated entity.

28. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists on the basis that Mr Lu had breached paragraph 8107(3)(a)(ii) of condition 8107 attached to the visa, which relates to working only with the nominator sponsor or an associated entity. 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

29. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’ discussed below.

30. The focus of the applicant’s written and oral submissions in respect of the discretion is that he made a mistake “by employing himself without the requirement of a nomination.” He submits that this lack of action can be attributed to a “sort of paralysis caused by shock of finding himself without work and having no idea on what direction to take due to his lack of knowledge of the law and of the migration system.”  The applicant submits that he, however, only worked for a very short period of time of three weeks without the proper nomination.  He admits that he made the mistake of not going to the Department for advice “thinking that having no nominator meant he would be forced to leave the country.”  The applicant emphasised that in the end, he “did the right thing by seeking advice” but found an unscrupulous agent representative whose actions and inactions left him “in a situation worse” than when he left JFK Engineering Pty Ltd, something that he should not be penalised for.

31. The applicant submits in summary, that it would be unfair to refuse him the visa for working without a nomination or for not securing a new nomination because of: the sense of helplessness caused by the loss of his job; the fear of being sent offshore for a circumstance that was outside his control (i.e. the closure of the company); his ignorance of the law that prevented him from seeking advice from the department, and an unscrupulous agent representative, all of which played a role in breeching one of the conditions of his visa.

32. The applicant has shown some remorse for his actions stating that he endeavours to find a new nominator and avoid making further mistakes in future.

33. The Tribunal has also considered other relevant factors, discussed below set out in the departmental guidelines, as well as the matters raised by the applicant.

34. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to enable him to remain in Australia to work for the approved sponsor JFK Engineering Pty Ltd as a welder.  The Tribunal also accepts that the purpose for which the visa was granted to the applicant ended more than 21 months prior to the delegate’s decision and that the applicant had not applied for a new visa or departed Australia (having returned after his operation procedure).  However, this is mitigated in the Tribunal’s view, by the circumstances in which the applicant found himself from the misinformation and omissions by his representative agent at the time, Mrs Zeng.  It is apparent that the department has taken an interest in her actions and purported role as an agent representative.

35. The Tribunal has also considered the extent of non-compliance with the conditions the subject of the applicant’s visa.  Firstly, the applicant has admitted to the department that he worked for someone else other than the sponsor during the relevant period.  The Tribunal notes that this was for a short period of approximately three weeks. 

36. In respect of any hardship that would be caused to the applicant or his family, the Tribunal notes that a child of the applicants’ is presently being cared for in China by others and that this was planned to enable the couple some time to establish themselves in Australia.

37. The Tribunal has also considered and notes specifically, that the applicant has cooperated with the department and has generally provided information when requested of him, which serves in his favour.  Further, the Tribunal considered the applicant provided straightforward and spontaneous answers to questions asked of him at the hearing and did not appear evasive to matters put to him or the responses sought.

38. According to departmental records Mrs Ban is holding a visa in Australia due to the applicant’s visa.  Therefore, should the applicant’s visa application not be successful, this will result in consequential cancellation by operation of law under section 140 of the Act in respect of his spouse.  In regard to the fact that Mrs Ban was granted the visa only on the basis of being a member of the applicant’s family unit, the delegate considered that little weight should be placed on this factor. However, it is evident that Mrs Zeng’s advice to Mrs Ban for the 186 visa application she lodged on Mr Lu’s behalf in January 2014, was that the 186 application had been approved. But there is no evidence of the grant letter ever being emailed or posted and it appears that Mrs Ban has been the subject of misinformation by the agent in respect of her separate 186 application.

39. There is no evidence before the Tribunal that Australia’s international obligations would or may be breached as a result of cancelling the applicant’s visa or that there are children in Australia whose interest could be affected by the cancellation or who would themselves be adversely affected by consequential cancellation.

40. As there is no application before the Tribunal or suggestion of any protection claims being made, there appears to be no reason before the Tribunal to suggest that removal of the applicant, if necessary, would lead to a breach of Australia’s non-refoulement obligations. There is no suggestion or evidence of any victims of family violence in this case.

41. Finally, the visa is not due to expire until 30 November 2015.  In circumstances where the visa would not be cancelled, the sponsor’s obligation towards the applicant would potentially only continue until that date, which is not very far into the future.

42. The Tribunal has weighed up the above factors and also (inter alia) the sense of helplessness caused by the loss of the applicant’s job; the fear of being sent offshore for a circumstance that was outside his control (the closure of the company); the applicant’s ignorance of the law that prevented him from seeking advice; the unscrupulous adviser who has prompted further investigations by the department, the applicant’s remorse and co-operation with the department, and the short period of time worked without the proper nomination, and has concluded overall that, on balance, these act in favour of exercising the discretion.

43. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

44. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

45. The Tribunal has no jurisdiction with respect to the second named applicant.

    Steve Georgiadis
    Member