1517696 (Migration)

[2016] AATA 4294

1517696 (Migration) [2016] AATA 4294 (31 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shouwei ZHANG
Ms Jianmei YANG
Mr Xinze ZHANG

CASE NUMBER:  1517696

DIBP REFERENCE(S):  BCC2015/3586341

MEMBER:Karen Synon

DATE:31 August 2016

PLACE OF DECISION:  Melbourne

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 31 August 2016 at 1:21pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 December 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)(a) on the basis that circumstances which permitted the grant of visa no longer exist. 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. The applicants applied for review of the primary decision on 21 December 2015 and provided a copy of the notification of visa cancellation and decision to cancel the visa.

4. The applicant appeared before the Tribunal on 27 July 2016 give evidence and present arguments.  The hearing was conducted via video with the applicant in Perth.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  Following the hearing additional time was provided for the applicant to provide evidence of his income from Ausray Industries (via the provision of the relevant tax returns) and evidence of his new nomination.

5. The applicant was represented in relation to the review by his registered migration agent.  He did not attend the hearing.

   Jurisdiction of Secondary applicants

6. 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. The Tribunal discussed this issue of jurisdiction with the applicant at the hearing.

7. 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

8. 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(a)(a).

9. 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?

10. A visa may be cancelled under s.116(1)(a) if the Minister or the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists. Although considering a differently worded version of s.116(1)(a), the reasoning of the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258 provides some guidance. The relevant fact or circumstance that no longer exists is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind, i.e. satisfaction (per French and North JJ at [54]).

11. The expression ‘no longer exists or is no longer the case' in s.116(1)(a) refers to the cessation of a state of affairs that did exist; it is not concerned with circumstances which later appear to have never existed.

12. It is without contention that the applicant was granted a 457 visa on 22 January 2013 to be employed as a Welder by Ausray Industries Pty Ltd and that this sponsor no longer employs the applicant as it has ceased to operate.  Therefore the relevant fact or circumstance which permitted the grant of the visa on 22 January 2013, namely the applicant’s employment as a Welder for Ausray Industries Pty Ltd, no longer exists.

13. For this reason, the Tribunal is satisfied that the grounds for cancellation in s.116(1)(a) 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

14. 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’.

    The purpose of the visa holder's travel to and stay in Australia

15. The applicant gave evidence that he came to Australia in February 2013 to work as a Welder; an occupation in which he had over 10 years’ experience, since 2002, in China.  He studied welding as an occupation at high school and achieved a welder qualification.  He was sponsored to Australia by Ausray.  He secured the position because he knew a senior worker in China, Qian Sun who knew his boss, Rui Xing.  Before he came he did not have much to do with his boss because his boss gave his advice to the senior worker, Qian Sun, who told him.  He said his migration agent Nathan is “sort of his lawyer”.  He said the welding work he did at Ausray was related to mining and occasionally there were not enough jobs so they would have a rest and have a few days off.  He worked from 6am to 2.30pm on Mondays to Fridays and occasionally on Saturdays from 6am to 12pm.

16. He last worked at Ausray at the end of July or early August.  Their boss told them that the company would be closing down because the economy was bad and there were not enough jobs.  He was paid in cash for his last several payments and sometimes did not receive payments on a regular basis.  He was usually paid a little bit less than $1,300 a week.  His agent provided the ANZ bank statements to show he was paid cash for the last payments; several weeks payments at once.  He cannot remember the specific dates.

17. His visa was cancelled in November/December 2015 because he heard from his boss that the department visited his workplace one day and did not find anyone working there so they suspected no one was working there.  Actually they were waiting for materials to come so were on vacation on those days.  He thinks his visa was cancelled because in March, when the department inspected the site, they found no one working there.  

18. A 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that an applicant will be able to remain in Australia on a permanent basis.  The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time as a Welder for Ausray Industries.  While this purpose no longer exists, the applicant is now the subject of a new approved nomination also in the occupation of Welder.  This nomination was approved by the department on 23 May 2016 and is valid until 23 May 2017.  While the Tribunal cannot be certain that such a nomination will ultimately result in the applicant being granted another 457 visa, it is at least satisfied that his skills and experience are in need and sought by another employer to fill a gap in its workforce.  Therefore the purpose of the applicant’s travel to and proposed stay in Australia are consistent and satisfactory.

    The circumstances in which the ground for cancellation arose and the extent of compliance with visa conditions

19. As explained to the applicant at the hearing he appears to have breached Condition 8107(b) because he ceased employment for more than 90 consecutive days if it accepts his evidence that he ceased employment with Ausray Industries in late July or early August 2015.  The applicant did not appear to understand this condition and the Tribunal explained it.  He responded that he applied for another nomination within 90 days and he did submit a new nomination with a mining company, Milliarummurra Pty Ltd in October 2015 but the department rejected it.  He agreed he has not been employed as welder in Australia since finishing work at Ausray Industries in July/August 2015.

20. However the applicant now has another nomination and is approved to work as Welder with a company he described as “Spriggs Pipe Building”.  This was submitted to the department in February/March 2016 and approved in May.  He sourced this job through a friend who works there.  Evidence provided to the Tribunal after the hearing confirms that the applicant is now the subject of an approved nomination lodged by Barbard Enterprises Pty Ltd ATF The Van Rooyen Family Trust.

21. The Tribunal notes that the applicant did not voluntarily cease working with his former sponsor, Ausray Industries and that he did lodge another nomination with Milliarummurra Exploration Pty Ltd however this was refused by the department.  The second nomination lodged by Barbard Enterprises Pty Ltd ATF The Van Rooyen Family Trust was approved.

22. The Tribunal accepts that the applicant's failure to commence employment with a new business sponsor within the 90 days as allowed for in the Regulations were circumstances occasioned through no fault of his own.  Therefore the Tribunal is satisfied, in this instance, that the breach of condition 8107 was not significant.

    Past and present conduct of the visa holder towards the department

23. There is no information known to the Tribunal which indicates that the applicant’s past and present conduct towards the department has not been satisfactory.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

24. The applicant’s visa was cancelled on 16 December 2015 and he is the holder of a Bridging visa E.  There is no evidence before the Tribunal that cancellation would result in the visa holder being subject to detention, or that indefinite detention is a possible consequence of cancellation.

    Degree of hardship and consequential cancellations under s.140

25. The applicant and his family have been financially reliant on savings during the period he has not been working.  They stay with their senior boss who now works in Australia.  He has permanent residency.  He wants to stay in Australia for 2 years and he wants his son to be educated here.

26. While the Tribunal accepts that if the applicant and his family have to leave Australia this would involve some financial hardship however it not persuaded this hardship would be significant given the qualifications and employment experience the applicant has in his occupation before coming to Australia.  However the Tribunal does accept that the applicant’s new proposed sponsor, Barbard Enterprises Pty Ltd ATF The Van Rooyen Family Trust may experience some hardship if the applicant cannot commence his employment as a Welder.  As the 457 visa program exists to assist Australian employers to fill skills gaps in their workforce, the Tribunal is satisfied that this hardship would be significant for the applicant’s employer and proposed sponsor.

    Whether any international obligations would be breached as a result of the cancellation

27. There is no evidence before the Tribunal regarding this matter and no such matters were raised by the applicant or his representative.

28. The Tribunal has taken into account all of the available evidence in this case.  Having considered all the circumstances the Tribunal is persuaded that it should exercise its discretion not to cancel the visa.

    Department Note:

29. The Tribunal records its concern with the applicant’s account of his employment with Ausray Industries Pty Ltd and in particular the provision of an ANZ bank statement recording a deposit of $47,977.20 into an account in his name on 29 July 2015.  The applicant appeared to have no knowledge of this deposit and said his migration agent had provided the bank statement.  The applicant’s clear evidence was that the most his employer had ever deposited into his account was $20,000.  Therefore the Tribunal has serious concerns about the provenance of this $47,977.20 and whether it did come from Ausray Industries Pty Ltd as recorded on the ANZ bank statement.  This may be a matter for the department to consider in relation to any further visa applications.  Overall the Tribunal found the applicant’s evidence to be lacking in substance and detail and notes that he appears to have been wholly reliant on other people for securing the position with Ausray Industries and for the subsequent nomination lodged by Milliarummarra Exploration Pty Ltd in respect of him.

    DECISION

30. 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.

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

    Karen Synon
    Member