1512123 (Migration)

[2016] AATA 3912

1512123 (Migration) [2016] AATA 3912 (19 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr BOQIN CHEN
Mrs XIUYING LIN
Master ZIANG CHEN
Ms ZHIYI CHEN

CASE NUMBER:  1512123

DIBP REFERENCE(S):  BCC2015/1446952

MEMBER:Rania Skaros

DATE:19 May 2016

PLACE OF DECISION:  Sydney

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 other applicants.

Statement made on 19 May 2016 at 3:50pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 August 2015 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 the first named applicant (the applicant) did not comply with condition 8107 that was imposed on that visa. 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 other applicants’ visas were 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 those other visas 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 them.

4. The applicant appeared before the Tribunal on 10 November 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. The representative attended the Tribunal hearing.

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. The applicant was sponsored under the temporary work 457 program by Sun & Yao Construction Pty Ltd. He was granted a Temporary Work, Subclass 457, visa on 29 June 2012 for a period of 4 years. The nomination by Sun & Yao Construction in respect of the applicant was in the occupation of Civil Engineering Technician. That nomination was approved on 16 June 2012.

8. Information on the Department’s file indicates that Sun & Yao Construction’s sponsorship agreement, under which the applicant was nominated, was cancelled on 11 June 2014. This event triggered cancellation of the applicant’s 457 visa.

9. On 8 July 2015 the Department sent the applicant a notice of intention to consider cancelling his 457 visa on the basis that he had breached condition 8107. The notice detailed information that was before the Department which indicated that the applicant had ceased employment with Sun & Yao Construction, his last nominating employer, effective from 11 June 2014 and that 90 days had since passed.

10. In his response to the notice the applicant claimed that he did not cease employment with Sun & Yao Construction on 11 June 2014 and that he continued to work for the Company until after that date. He provided copies of cheques issued to him and the bank account in which the cheques were deposited. He stated that Sun & Yao Construction sent him to various constructions sites to undertake work and that he was often asked to do tiling and labouring work. He collected his pay cheques every week from Sun & Yao Construction but they never issued him any pay slips. He stated that in November 2013 he was required to provide pay slips to his children’s school and when Sun & Yao Construction refused to give them to him he sought advice about his situation. He discovered that Sun & Yao Construction had not been paying his superannuation or taxes. He was told that if he reported the company an investigation will be triggered which would also affect his and his family’s visas. He was concerned about his family’s welfare. He stated that he later discovered there were many others working for Chinese construction companies in Australia that were in the same situation as him. He stated that he is an honest person. He has been working as a tiler and has worked under the instructions of his sponsoring employer. He stated that Sun & Yao Construction had never terminated his employment and did not tell him that their sponsorship had been cancelled. He stated that he has two children in school in Australia. He stated that he is a highly skilled tiler and that his skills are sought after by Australian companies who would be willing to sponsor him.

11. At the hearing the applicant acknowledged that he had not been working in the nominated occupation of engineering technician and had been working as a tiler. He stated that he is now aware that this was not consistent with the occupation in which he was nominated and stated that he was working under the instructions of his nominating employer. He felt bullied and pressured by the company. He did not make a complaint because he had to consider the welfare of his family, particular his two young school aged children.

12. At the hearing the Tribunal discussed with the applicant his circumstances and invited him to make submissions as to why his visa should not be cancelled. Details of the applicant’s claims and evidence are discussed in detail below.

13. After the hearing the Tribunal received evidence of an approved nomination by MTI Stone Pty Ltd in the occupation of Wall and Floor Tiler in respect of the applicant.

    Relevant law

14. 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?

15. 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 applicant’s visa. Of relevance is 8107(3), which provides:

    (3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)      the holder:

    (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)      unless the circumstances in subclause (3A) apply

    (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor…

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days

    …………

16. The Tribunal is satisfied on the evidence that 8107(3A) does not apply in this case.

17. The applicant was sponsored for a 457 Visa by Sun & Yao Construction Pty Ltd. The nomination in the occupation of Civil Engineering Technician in respect of the applicant by Sun & Yao Construction was approved on 16 June 2012.

18. The applicant has given evidence that he worked primarily as a tiler with Sun & Yao Construction. On the basis of this, the Tribunal finds that the applicant was not working only in the nominated occupation of civil engineering technician as required by 8107(3)(a)(i).

19. Further, the applicant ceased work with Sun & Yao Construction effective from 11 June 2014 as this was the date Sun & Yao Construction’s sponsorship agreement was cancelled by the Department. The Tribunal accepts the applicant’s oral evidence that he continued to work for Sun & Yao Construction until after that date. The documentary evidence suggests that the applicant was paid by Sun & Yao Construction up until 27 July 2014. Notwithstanding this, the evidence nevertheless indicates that the applicant has breached condition 8107(3) as more than 90 consecutive had passed since the applicant worked with the sponsoring employer.

20. Given the above, the Tribunal finds that the applicant did not comply with condition 8107 that was imposed on his 457 visa. 

21. 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 power to cancel the visa should be exercised.

    Consideration of discretion

22. 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’.

23. The Tribunal has considered purpose of the visa holder’s travel and stay in Australia and whether he has a compelling need to remain in Australia. The applicant travelled to Australia to work for an Australian business in the occupation of civil engineering technician. However, he did not work for his sponsoring employer in that occupation and was primarily working as tiler. The Tribunal has considered the applicant’s explanation that he was working under the instructions of his nominating employer at the time and was asked to do tiling work on constructions sites. The Tribunal accepts the applicant’s evidence that this was the case, and acknowledges that the sponsoring employer was in breach of its sponsorship obligations to ensure that its 457 employees worked in the occupation in which they were nominated. However, this does not entirely justify the applicant’s conduct. The applicant had conditions attached to his visa that required him to work in the occupation for which he was nominated and the Tribunal considers that it was his responsibility to understand those conditions and to ensure he complied with them.

24. The Tribunal has considered the applicant’s submission that his visa should not be cancelled as he is an experienced tiler whose skills are highly sought after by Australian employers. He stated that he has been trying to secure an approved nomination in the occupation of tiler and gave evidence that a nomination was initially made in relation to him by MTI Stone Pty Ltd but that the company withdrew the sponsorship after his visa got cancelled. He was nominated by ANA Stone and Tiles Pty Ltd but information received after the hearing indicated that that nomination was refused. The representative submitted that an error had occurred in the assessment of that nomination as evidence was not properly considered. A copy of the nomination application and decision record was provided to the Tribunal.  

25. After the hearing the Tribunal received submissions that MTI Stone Pty Ltd had offered the applicant a position as a tiler and were in the process of lodging a nomination. The Tribunal subsequently received evidence that the nomination for the occupation Wall and Floor Tiler was approved by the Department on 17 May 2016. The Tribunal gives weight to this evidence as the applicant will now be able to fulfil the purpose of the 457 visa which is to work for an approved Australian business in an approved occupation.

26. The Tribunal has considered the applicant’s overall conduct and notes that other than the breach of condition 8107, as discussed above, there is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his 457 visa or conditions on his subsequent bridging visa. The decision record also indicates that the applicant has been co-operative with the Department.        

27. In relation to the circumstances in which the ground of cancellation arose, the Tribunal notes that the cancellation of the applicant’s Subclass 457 visa was triggered following the cancellation of the sponsorship approval of Sun & Yao Construction. The Tribunal accepts that the cancellation of the sponsoring employer’s approval was not a factor over which the applicant had control. The Tribunal also accepts that the applicant was not informed by Sun & Yao Construction that their sponsorship approval had been cancelled and that he continued to be employed by them after the cancellation took effect. The applicant however was on notice that there were issues with the conduct of the sponsoring employer, which affected his own compliance with Australia’s laws, and which came to his attention when the Company refused to issue him with a pay slip and he found out they had not been paying his superannuation or tax. Notwithstanding the applicant’s explanation that he did not want to lodge a complaint as he was concerned about his family’s welfare and feared cancellation of his visa, the Tribunal is still concerned that the applicant did not take steps to inform the Department of the employer’s conduct and make a complaint with the relevant authorities, such as the Fair Work Ombudsman.

28. The Tribunal has considered whether there would be consequential cancellation under s.140 and accepts that if the applicant’s visa is cancelled, his spouse and his children’s visas would also be cancelled. 

29. The Tribunal has also considered the applicant’s current circumstances and the degree of hardship that may be caused if the visa is cancelled. The Tribunal notes that the applicant’s Subclass 457 visa is due to cease on 29 June 2016, which is just over one month from the date of this decision. If the visa is not cancelled the applicant will have the opportunity to apply for another visa to remain in Australia before the current Subclass 457 ceases, which the representative indicated at the hearing would be for a further 457 visa. If however the visa is cancelled the applicant will be prevented by s.48 of the Act from making a valid application for the Subclass 457 visa onshore and will need to depart Australia to make that application. The approval of the nomination in respect of the applicant by an approved sponsor suggests that the applicant has some prospect of meeting the requirements of a Subclass 457 visa if he applies for it onshore. This, in combination with the financial and emotional hardship, particularly for the applicant’s school aged children, leads the Tribunal to lean towards not cancelling the visa.  The Tribunal considers that cancelling the visa is likely to cause financial strain on the applicant and his family as they will all need to depart Australia to make the application offshore. It will also be considerably disruptive to the children’s schooling as they are currently half way through the academic year.

30. In conclusion, although the Tribunal had some concerns with the applicant’s conduct and the extent of his non-compliance with condition 8107 in the past, having considered the circumstances overall, the Tribunal gives weight to the fact that the applicant is now the subject of a current approved nomination and can fulfil the purpose of the 457 visa, and to the hardship the family would experience, and particularly the children, if the visa was cancelled at this time.  For these reasons, the Tribunal concludes that the visa should not be cancelled.

    DECISION

31. 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.

32. The Tribunal has no jurisdiction with respect to the other applicants.

    Rania Skaros
    Member