1600629 (Migration)

[2016] AATA 4066

1600629 (Migration) [2016] AATA 4066 (7 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yancai XING
Ms Yumei LI
Master Libin XING

CASE NUMBER:  1600629

DIBP REFERENCE(S):  BCC2015/3586579

MEMBER:Marten Kennedy

DATE:7 July 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision 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 07 July 2016 at 4:56pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision dated 14 January 2016 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. 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. Their circumstances are nonetheless relevant to me as elaborated upon below.

3. Under s.116 of the Act, the Minister may cancel a visa if 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). 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.

4. The delegate cancelled the visa under s.116(1)(b) of the Act because the delegate found that the applicant failed to comply with condition 8107.

   Does the ground for cancellation exist?

5. The delegate identified that the applicant had not complied with a requirement of condition 8107 which states: “if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days”: condition 8107(3)(b).

6. That condition applies only to a subclass 457 visa granted on the basis that the holder met the requirements of cl.457.223(2) or (4) (labour agreements and standard business sponsors). I infer from Departmental records before the Tribunal regarding monitoring of the applicant’s sponsor’s compliance with standard business sponsorship obligations, that the visa was granted to the applicant on the basis that he met cl.457.223(4). 

7. It is convenient to set out briefly the circumstances giving rise to the Department’s allegations.  The applicant was nominated and sponsored for his visa by Ausray Pty Ltd.

8. The Department inspected the sponsor’s business premises on 26 March 2015 to discover no sign of activity.  Subsequent enquires by the Department established that a relevant business registration had been cancelled, and the sponsor was under external administration.

9. The Department wrote to the applicant outlining particulars of the ground for cancellation on 8 December 2015 to the effect that there was no sign of activity at the business premises, the sponsor’s business registration had been cancelled, and the sponsor was under external administration.  The Department inferred in these circumstances that the applicant’s employment with the sponsor had ceased at least since 26 March 2015, and therefore more than 90 consecutive days had subsequently elapsed.

10. The applicant’s response to the Notice of Intention to Consider Cancellation was that the sponsor had been wound up on 21 August 2015, and the applicant was paid wages until the end of July 2015.

11. The applicant’s case was that he had been nominated by another company on 21 October 2015 within 90 days.  In these circumstances, it was submitted that the ground at 8107(3)(b) was not established.

12. The Department did not accept the evidence about ongoing employment with Austray Pty Ltd, raising concerns, among other matters, as to the veracity of payslips and the absence of corroborating banking and superannuation documentation.

13. By invitation pursuant to section 359(2) of the Act, I invited the applicant to produce information, supported by corroborating documentary evidence, demonstrating that he was employed by his sponsor between 26 March 2015 and 21 August 2015, and suggested the evidence should include bank statements showing payment of salary and superannuation documentation.

14. The applicant produced Westpac bank statement showing deposits of salary described as ‘Ausray Wages’ through until 14 August 2015.

15. At the hearing today, the applicant told me that he last worked for his sponsor in August 2015. He categorically told me that he has not worked since then, and has thus been unemployed in Australia from August 2015 to the present.  I asked the applicant if he had worked for the person who had nominated him on 21 October 2015.  The applicant said that he had not.

16. Whether or not the applicant ceased employment with Ausray in March, July or August 2015 need not therefore be determined.  It is clear that the period during which the applicant has  ceased employment has exceeded 90 consecutive days, on the applicant’s evidence.

17. I find therefore that the period during which the holder has ceased employment has exceeded 90 consecutive days.   The applicant has breached condition 8107(3)(b), and therefore condition 8107. 

18. I find that the applicant has failed to comply with a condition of his visa, and therefore the ground for cancellation at s.116(1)(b) is made out. 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.

19. The applicant emphasised at the hearing that it is a condition of his bridging visa that he not work or study, and this is why he has not commenced work.  He says he is waiting for an outcome on the nomination application of 21 October 2015, and told me there has been no news in this regard.  I take these matters into account below as I consider whether or not the visa should be cancelled.

    Consideration of discretion

20. 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’.

21. As to the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling[1] need to remain in Australia, I observed that the temporary work visa granted to the applicant was granted to enable him to work in a nominated position and occupation with his approved sponsor.  I observed that in circumstances where he was no longer working in that position or with that sponsor, the purpose for the visa no longer existed.  I asked the applicant why in these circumstances he had remained in Australia and whether there was any reason why he should continue to remain.

    [1] The term ‘compelling’ is used in the Department’s policy but I do not approach the exercise of discretion on the basis that a compelling need to remain in Australia is a prerequisite for favourable exercise of the discretion.

22. The applicant told me he had remained in Australia because he was awaiting news about his new employer nomination.  He said he had travelled to Australia to work on a subclass 457 visa, and he wanted that visa restored so he could continue to work on a subclass 457 visa.

23. I suggested to the applicant that neither he nor I knew whether that nomination would be approved.  I observed that it was open to the applicant to return to China and if his nomination was approved he could apply for a subclass 457 visa then.  I observed that living in Australia for nearly 12 months without employment must be causing him significant hardship and asked if there was any other reason why he needed to remain.

24. The applicant’s response to my observation in this regard is also relevant to my consideration of the degree of hardship that may be caused should the visa be cancelled.  The applicant told me that he was a highly skilled person, but if he returned to China it would take him a long time to find a new job.  He said he had older people in China he must look after and fulfil his obligations to his family.

25. I explored with the applicant further the hardship he had put forward about returning to China with the reality of his current circumstances in being unemployed in Australia for nearly 12 months.  The applicant said that if he returned to China it meant that he had accepted that he had done the wrong thing and given up his rights.  The applicant elaborated that in coming to Australia, he had sold all his property and spent his savings.  He said he had no capacity to support elderly people in his family if he returned to China, and he would have to start from zero.  I indicated I had difficulty understanding the hardship in China he was describing in the context of his current circumstances.

26. I also received evidence from Ms Li.  Ms Li was a secondary visa holder whose visa was automatically cancelled when the applicant’s visa was cancelled.  I may take into account her circumstances and hardship she will face if her visa is cancelled as a consequence of the applicant’s visa being cancelled.  She told me that she has not worked either since the imposition of a ‘no work’ condition in her bridging visa. She said that if she returned to China, she would have no job and would have to look after the elderly people in her family.  She said it would be difficult for her to find work in China as she is aged over 40.

27. I enquired about Master Libin Xing’s circumstances.  He is also a secondary visa holder whose visa has been automatically cancelled.  The applicant told me his son had never joined him in Australia, but would have in due course.

28. As to the circumstances in which the ground for cancellation arose, I accept that the breach of the visa condition arose because the applicant’s employer ceased operating, was placed under administration and liquidated.  I accept, as the applicant emphasised, that these circumstances are not the applicant’s fault.

29. I record that there is some limited information before me from Departmental records suggesting the applicant’s sponsor was of concern to the Department.  I considered carefully whether I should raise this information with the applicant for his comment or response.  On reflection, I decided that I have such little information about the basis for Department’s concerns, that those concerns are of no probative value to the exercise of my discretion which turns primarily on the applicant’s and his family’s circumstances, and thus will not form part of the reason for my decision.  I accept that the applicant finds himself in breach of the condition through no fault of his own, regardless of the concerns the Department may or may not have about his sponsor.

30. As to the extent of the applicant’s compliance with visa conditions and his past present conduct towards the department, I have no adverse information pertaining to the applicant in this regard.

31. I explored with the applicant and Miss Li whether there was any reason why they could not return to China.  No matters not already mentioned were raised.  I specifically raised the question of whether there was any need for the protection of the Australia, but the applicant told me there was no such need.

32. Both the applicant and Ms Lin provided evidence demonstrating that they have studied English and had devoted effort to adapting to life in Australia.  I accept that they have.

33. I have considered all the circumstances known to me about the applicant, those affected by consequential visa cancellation and the circumstances in which the ground for cancellation has arisen.

34. I place significant weight on the nature of the visa, being a temporary work visa granted to the applicant to work for an approved sponsor.  I place significant weight on the fact that the purpose of that visa is no longer being served by the applicant’s presence in Australia, and indeed has not been served for some time.  I consider that this factor weighs in favour of cancelling the visa.

35. I have considered the matters relating to hardship very carefully.  I have difficulty accepting that the applicant and Ms Li will face hardship outweighing their current circumstances if the visa is cancelled.  While it may be that the applicant will struggle to find work in China, he has emphasised that he is a skilled worker.  I do not accept that Ms Li will be unable to find work in China because she is over 40 years of age.

36. I accept that the applicant has obligations to his family in China, but I am unable to reconcile the hardship described in this regard against the applicant’s and Ms Li’s evidence that they have been unemployed in Australia for nearly 12 months, living on savings.

37. It is not the case that refraining from cancelling the visa will alleviate hardship by restoring the applicant’s capacity to work in Australia.  It is important to note that the applicant is not free to work for whom he pleases as the holder of the visa.  Indeed an alternative breach of condition 8107 is established if, essentially, the applicant works other than for his approved sponsor: see condition 8107(3)(a)(ii)(B).  His approved sponsor has now been wound up,

38. As to the applicant’s contentions that his purpose for remaining in Australia and enduring the associated hardship is to await the outcome of a new nomination application, I place little weight on this factor.  It is speculative as to whether any nomination will be approved, and awaiting such an outcome does not require the applicant’s presence in Australia.  It does not justify hardship associated with the applicant remaining in Australia indefinitely, unemployed, and without entitlement to work.

39. I have taken into account the effect of a consequential cancellation of Master Libin Xing.  I do not consider that Master Xing will face any hardship as he is not present in Australia. 

40. I have considered carefully the circumstances behind the breach, and have accepted that this has occurred through no fault of the applicant.  On balance however, taking into account the temporary nature of the visa and the purpose for which it is granted, this factor has not carried determinative weight in my assessment.

41. On balance, I consider that the visa should be cancelled.

    DECISION

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

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

    Marten Kennedy
    Member