1511890 (Migration)

[2016] AATA 3631

1511890 (Migration) [2016] AATA 3631 (29 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yang YANG
Mrs Zhe MENG

CASE NUMBER:  1511890

DIBP REFERENCE(S):  BCC2015/2577570 BCC2015/549563

MEMBER:Adrian Ho

DATE:29 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 29 March 2016 at 4:51pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 August 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. 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 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.

3. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with Condition 8107 which attached the visa in that the applicant did not work only in the occupation listed in the most recently approved nomination as required by cl.8107(3)(a)(i).

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

5. By letter dated 1 October 2015, the Tribunal wrote to the applicant pursuant to s.359(2) to provide information demonstrating that the above ground for cancellation did not exist, that no other ground for cancellation existed, and to provide information relevant to whether or not the visa should be cancelled.

6. In the invitation the applicant was advised that, if the information was not provided in writing by the time stipulated, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement under the Act to appear before the Tribunal to give evidence and present arguments.

7. In its letter the tribunal provided the applicant with information taken from the copy of the delegate’s decision the applicant provided to the tribunal, as follows:

   You provided a copy of the delegate’s decision to the tribunal. In that decision the delegate records that:

   1. your Subclass 457 visa was subject to condition 8107;

   2. The occupation nominated in the most recently approved nomination for you was Accountant;

   3. Immigration officers conducted an unannounced site visit to the workplace of your claimed sponsor and employer, interviewed employees of the business, and interviewed you, and as a result of evidence gathered concluded that your duties, if any, were those of a receptionist and a debt collector, and not those of an Accountant;

   4. you were given a Notice of Intention to Consider Cancellation on 21 July 2015; and

   5. the delegate decided that you have breached condition 8107 and therefore, the ground for cancellation mentioned in paragraph 116(1)(b) (above) existed, and cancelled your visa after considering factors relevant to whether or not your visa should be cancelled.

8. A request for an extension of time was accommodated.  However, the applicant did not provide the information within the time as extended.

9. The tribunal informed the applicant that the entitlement to a hearing in this matter had been lost in the following terms:

   LOSS OF HEARING RIGHT – MR YANG YANG AND MRS ZHE MENG

   On 1 October 2015, the Tribunal wrote to you in accordance with s.359(2) of the Migration Act, requesting information in regard to your application for review of a decision to cancel your Subclass 457 visa.

   The Tribunal’s correspondence explained that if you did not provide the information within the prescribed period, or a period as extended, you would lose your right to present evidence and arguments at a Tribunal hearing.

   The Tribunal considers that you have not provided all of the information requested by the Tribunal within the prescribed period (or with a period as extended, if applicable).

   The Tribunal has no power under s.359B(4) to now extend the time for you to provide the information: Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010) at [32].

   In these circumstances, s.359C applies and pursuant to s.360(3) you are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if you have no entitlement to a hearing, the Tribunal has no power to permit you to appear at a hearing: Hasran v MIAC [2010] FCAFC 40.

   The Tribunal will now accordingly proceed to finalise your application for review.

   The Tribunal will defer making a decision until 19 November 2015 to allow you, if you wish, to make further submissions or provide further evidence.

10. On 19 November 2015 the applicant sought an additional week, which was afforded by the tribunal.

11. He later submitted a long statement in which he partially concedes not working in the nominated occupation of accountant.

12. He was requested to indicate if he was seeking a new employing sponsor who would nominate him.  On 1 December 2015, he indicated he had found a new sponsor and was ready to apply for approval of a nomination.

13. He has made no further contact with the tribunal since that time, now approaching 4 months ago, and has not advised the tribunal of the outcome of any nomination application made identify him.

14. The Tribunal has decided to proceed to decision without taking further steps to obtain additional information.

15. 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

16. 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 a ground for cancellation exist?

    First ground

17. 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. In this instance Condition 8107 attached to the visa and requires that the applicant work only in the occupation listed in the most recently approved nomination as required by cl.8107(3)(a)(i).

18. The applicant in his statement received on 26 November 2015 indicates that while working for the sponsor and having had his nomination approved for the occupation of accountant, was asked to collect bad debts, fix computers, and ‘did not concentrate on [his] business’.  He illustrated that the business had poor management and employees would come and go and ‘operate different jobs’.  He wrote that he had ‘often be asked to do something which is not closely related to accounting’.

19. These concessions are consistent with the information taken from the copy of the delegate’s decision the applicant gave to the tribunal and provided to the applicant in the tribunal’s s.359 letter.

20. Based on both the delegate’s observations and the applicant’s written concessions to the tribunal, the tribunal finds that the applicant was not working only in the occupation listed in the most recently approved nomination as required by cl.8107(3)(a)(i), and has not complied with Condition 8107.

    Second ground

21. Quite separately, a visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r. 2.43(1)(l)(iv) is relevant.

22. It provides that a 457 visa may be cancelled where the standard business sponsor who had sponsored the applicant for the visa has been cancelled or barred under s.140M.

23. The applicant submitted a copy of the delegate’s decision to the tribunal in which the delegate notes that:

    a.Arising out of the investigation into whether the applicant was working in the nominated occupation, the sponsoring employer, John Stonemart Pty Ltd (the sponsor), had its approval as a standard business sponsor barred on 1 July 2014;

    b.The sponsor appealed that decision to the then-MRT and the MRT affirmed the Department’s decision in February 2015.

24. Based on this the tribunal is satisfied that the standard business sponsor who had sponsored the applicant for the visa has been cancelled or barred under s.140M and the ground for cancellation in r. 2.43(1)(l)(iv) and s.116(1)(g) exists.

25. As the grounds for cancellation do 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

26. 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’.

27. Much of the evidence submitted by the applicant relates to the circumstances of his work for the sponsor who nominated the applicant for his 457 visa. 

28. The applicant did not provide information directly relevant to an exercise of the discretion as to whether to cancel the visa.

29. Based on the evidence, the tribunal finds:

    a.That the purpose of the applicant’s stay in Australia on a Subclass 457 visa was to work for the standard business sponsor whose approved nomination the visa was granted against;

    b.That sponsor has had its standard business sponsorship status cancelled;

    c.On the evidence, the applicant is not the subject of an approved nomination by a standard business sponsor and there is no basis on which the applicant would now meet the criteria for a Subclass 457 visa;

    d.On the evidence, the visa was cancelled in June 2015 and the applicant has had sufficient time to make arrangements to depart Australia in the event that the applicant will become an unlawful non-citizen as a result of cancellation;

    e.The applicant has also had sufficient time to seek an approved nomination from any other standard business sponsors willing to provide sponsorship;

    f.The tribunal has specified delayed its decision by almost 4 months in order to allow the applicant more time in which to become the subject of a new approved nomination;

    g.Since that time, the applicant has provided to the tribunal no evidence suggesting that the applicant is now the subject of a new approved nomination that might have supported the continued holding of a 457 visa;

    h.If the applicant becomes the subject of an approved nomination, the Regulations permit the applicant to apply for a new 457 visa, from offshore if necessary;

    i.On the evidence, the applicant’s partner’s 457 visa will also remain cancelled but there are no circumstances suggesting that particular hardship will fall to that partner who has had the same amount of time as the applicant to seek an alternative basis of lawful stay in Australia, and/or to make arrangements to depart;

    j.On the evidence, there are no children or other members of the applicant’s family unit that will be affected by an consequential cancellations;

    k.The past conduct of the applicant with the Department has been cooperative;

    l.On the evidence, there are no particular circumstance of hardship that will result from cancellation;

    m.On the evidence, cancellation will not result in Australia being in breach of its international obligations;

    n.The applicant and the applicant’s partner may have lived in Australia for a long period of time on temporary visas and established connections with Australia and Australian residents; however, this does not establish that any particular hardship will result from cancellation.

30. The tribunal gives particular weight to the consideration that the only permitted purpose of the applicant’s Subclass 457 visa is to work for the standard business sponsor in a position and occupation which had been nominated and approved.

31. On the evidence, the applicant is not the subject of an approved nomination of a position and the purpose for the applicant to be present in Australia on a Subclass 457 visa does not exist.

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

33. The visa of the second named applicant was cancelled under s.140 by operation of law.  As no decision was made to cancel that visa, there is no reviewable decision for the tribunal to review, and the Tribunal has no jurisdiction with respect to the second named applicant.

    DECISION

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

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

    Adrian Ho

    Member