1600849 (Migration)

[2016] AATA 3940

1600849 (Migration) [2016] AATA 3940 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shuguang LIN
Ms Dongli LU
Mr Junze LIN

CASE NUMBER:  1600849

DIBP REFERENCE(S):  BCC2015/3586103

MEMBER:Sue Raymond

DATE:27 May 2016

PLACE OF DECISION:  Adelaide

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 and third named applicants.

STATEMENT MADE ON 27 MAY 2016 AT 11:32AM

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 19 January 2016 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)[1].

[1] This subclass of visa was renamed the Subclass 457 (Temporary Work (Skilled) visa in respect of visa applications made on or after 24 November 2012. The new name is defined to include the old and vice versa by virtue of r.1.03 of the Migration Regulations.

2.The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant ceased employment for a period which exceeds 90 consecutive days. The delegate was satisfied that the applicant had not complied with subparagraph 3(b) of condition 8107. The delegate determined that “it is likely that the visa holder’s employment with his sponsor had ceased by at least 26 March 2015”. 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. This made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa. 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, Mr Lin and his wife, Ms Lu, appeared before the Tribunal via video link from Perth on 29 April 2016 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 migration agent was not present at the hearing.

6.As the Tribunal only has jurisdiction in respect of the first named applicant, hereafter the reasons shall refer to the first named applicant as “the applicant”.

7.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

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(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.

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

9.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 is attached to the applicant’s visa. The relevant text of the provision is set out in an annexure to this decision. This condition relevantly[2] provides that the applicant work only in a position[3] in the business of the standard business sponsor or an associated entity of the sponsor.

[2] The relevant provision is 8107(3)(a)(ii)(B) which applies unless the circumstances in subclause(3A) apply. These relate to certain occupations set out in certain legislative instruments (IMMI13/067 or IMMI10/030) which relate mostly to medical positions which are not applicable. There is also a provision of continuing to work to fulfil requirements of industrial laws and the giving of notice which is not applicable in the current circumstances.

[3] The wording of this provision has altered from the time of the grant of the visa in 2012 to the time of cancellation. The later version (set out in the annexure to this decision) is applicable by virtue of Migration Amendment Regulation 2013(No.5)(SLI NO. 145 of 2013) Schedule I item 10 and the transitional provision in item 11 which makes it clear that the amendment applies to a visa which was in effect on 1 July 2013 as this one was.

1. The Tribunal also notes that clause (3)(b) of that condition states “if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days”. The Tribunal notes that the visa was granted in February 2012. At that time condition 8107(3)(b) contained a requirement about cessation of employment for a period of “28 consecutive days”. By virtue of the Migration Amendment (Temporary Sponsored Visas) Act 2013 (No.122, 2013)-Schedule 3, the reference to 28 days was omitted and “90 consecutive days” was substituted. The amendment applies in relation to a visa that is in force on or after the commencement of the Schedule and with effect from the time the visa was granted, whether before, on or after the commencement of the Schedule. Section 2 of the Amendment Act provides that schedule 3 commences on the 30 June 2013. The effect of this amendment is that although the requirement was 28 days at the time the applicant obtained his visa, the relevant number of days is “90 consecutive days”.

2. The Tribunal is satisfied that Mr Lin came to Australia on a subclass 457 visa in March 2012 in the occupation of a welder. He told the Tribunal that he was made redundant from the first company after three or four months but was then working for Ausray Industries [Pty Ltd], (hereafter called ‘Ausray’), manufacturing trailers. He was advised in August 2015 that there were no jobs available and a number or workers, including the applicant, were laid off. Since that time Mr Lin has not been employed.

3. A notice of intention to cancel the visa was sent to the applicant on or about 9 December 2015 and the visa was cancelled on 19 January 2016.The notice identified that the applicant had not complied with paragraph 3 of condition 8107. It made reference to a visit to the business premises by departmental officers on 26 March 2015 and that the company had its registration cancelled on 10 April 2015. It referred to the fact that the applicant had “a period exceeding 90 consecutive days since the date of cessation of [his] employment”.

4. Much of the departmental decision was concerned with whether the applicant had been employed with the sponsoring employer on or after March/April 2015. The Tribunal took a different view as to the factual basis of the breach of the condition 8107[4] and conveyed this to the applicant at the hearing. It also took the step of informing the representative in writing[5] of the different factual basis of the breach, given that the representative was not present at the hearing. A response was invited by 23 May 2016. Essentially the communication advised the applicant’s representative that even if the applicant was employed up until August 2015 (rather than March 2015) it would appear that condition 8107 is still breached. Nevertheless the requirement that there not be cessation of employment for a period exceeding 90 consecutive days is the same under either the departmental basis for its decision or the basis of the Tribunal decision. It is the factual underpinning which has differed.

   [4] The Tribunal notes that it is not limited to the issues that the delegate considered-Zhang v MIAC [2007] FMCA 1855 at para [18]

   [5] Letter dated 9 May 2016 (the shorter of two letters sent on that date)

5. Material was provided[6] to the Tribunal which it accepts, that the applicant was employed by the sponsor until at least the end of July 2015/21 August 2015. The applicant indicated that he was laid off in August 2015 and the Tribunal notes from ASIC information before it that the company was under external administration from 21 August 2015.

   [6] in the form of bank account information

6. Even accepting that the applicant was employed with the sponsoring company until 21 August 2015, an issue still arises with the applicant’s compliance with condition 8107. The applicant gave evidence that he has not worked since that date. The applicant indicated that a new document had been lodged with a new employer in October 2015. The Tribunal understood this to be a new nomination with a new employer. However, the fact that the applicant has not been employed for a consecutive number of days in excess of 90 days means that a breach of 8107 is made out. The nature of the breach is the same[7] but the facts surrounding the breach are different from that articulated by the delegate.

   [7] That is a breach of condition 8107

7. On the basis of the departmental decision record (supplied to the Tribunal) and the evidence of the applicant, the Tribunal finds that the applicant’s last substantive visa was a subclass 457 visa. The Tribunal finds that it was granted on the basis that Mr Lin met the requirements of 457.223(4) of Schedule 2 of the Regulations by inference from the departmental records which show the sponsor category as that of a standard business sponsor. Based on the evidence of the applicant and the information in the departmental decision record from the ASIC records, the Tribunal also finds that the applicant ceased employment with his sponsoring employer, Ausray, on or about 21 August 2015 and has not been in employment since that date. Consequently, the period in which the applicant has ceased his employment with his sponsoring employer, has exceeded 90 consecutive days.

8. As the breach of condition 8107 is not conceded, the Tribunal has considered the letter from the applicant’s representative dated 18 May 2016 and the matters therein but determined that the breach is made out. The issues raised in the letter are more relevant to the exercise of the Tribunal’s discretion and are discussed further below.

9. 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

1. 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 and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

1. The applicant came to work in Australia as a welder. He indicated that after three or four months he became redundant and then secured work with another employer. He said that he has not done anything wrong. The Tribunal accepts that he has been rendered unemployed in about August 2015 through no fault of his own. However, he came to Australia on a temporary basis to fill skills shortages not able to met from the local market. Once that work ceases the purpose of the travel has also ceased. Whilst the Tribunal notes that a new nomination has been lodged for the applicant to work with a different business (which he did not think was associated with Ausray) that nomination has not been approved. The Tribunal put to the applicant pursuant to section 359A of the Act the information that the nomination lodged by Milliarummarra Exploration Pty Ltd on 21 October 2015, in which Shuguang Lin was the nominee, has not yet been approved.

2. Of significance is the fact that the subclass 457 visa, the subject of this cancellation, would have expired in due course in February 2016 (had the cancellation not taken effect on 19 January 2016). The applicant provided evidence at hearing that the visa expired then. The applicant’s representative has provided a letter, dated 18 May 2016, noting the current and new nominations. The representative submitted that on the cessation of the work with Ausray the applicant cannot return to work for any period unless a further nomination is approved by Ausray. It is further submitted that if the new nomination is not approved, Mr Lin must continue to work for Ausray until the new nomination is approved. The representative points to the fact that as Ausray was wound up on 20 August 2015 the applicant was left with no choice but to seek new employment “in compliance with the Regulations.” The representative also pointed to the fact that his client had lodged a new nomination within the 90 day period [although noting that it is the employer who applies for the nomination rather than the applicant], and is still waiting for a decision to be made. In summary, he asserted that his client has complied with the Regulations to the best of his ability and that the winding up of his employer and the decision to be made on the new nomination are matters beyond the control of Mr Lin. As such, he asserted that his client’s conduct was unintended and unavoidable. The representative makes reference to the period of time under condition 8107 having lapsed but asserts that it was not within his client’s control. What the representative seeks from the Tribunal is that the Tribunal will not cancel the visa, or alternatively that it would grant a bridging visa until a decision is made on his pending nomination application. The Tribunal does not have power to make a decision in the terms of the second alternative.

3. The visa has expired by effluxion of time. The Tribunal has considered whether it would be appropriate to await the outcome of the new nomination application before determining this matter. However, the Tribunal is of the view the exercise of the discretion not to cancel the visa would not change the applicant’s migration status. This is due to the fact that the applicant would face insurmountable legal difficulties in satisfying subclass 457 visa requirements. In particular, the Tribunal notes clause 457.211(b) of schedule 2 of the Regulations. Given the effluxion of time of the subclass 457 visa, the requirements for a substantive 457 visa onshore could not be satisfied by the applicant, even if the visa the subject of this application was not set aside. The fact of the applicant not holding a substantive visa means that he must satisfy certain schedule 3 criteria to be granted a 457 visa. Clause 3004(f) of schedule 3 of the Regulations provides an insurmountable obstacle as the applicant cannot demonstrate that he would have been entitled to be granted a visa if he applied for a visa on the day when the applicant last held his substantive visa [in February 2016 if the visa was not cancelled]. This is because no nomination was approved at that time.

The extent of compliance with visa conditions

1. The evidence before the Tribunal does not allow it to determine that there has been any non-compliance with other visa conditions. Consequently, the Tribunal proceeds on the basis that the applicant has been compliant with other visa conditions.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

1. The Tribunal accepts that there is a degree of hardship experienced by the applicant and his wife with early termination of the visa but this is ameliorated by the fact that the visa would have expired in another month in any event. There is no evidence before the Tribunal that the new nomination has been approved and so there is no evidence of another job available to the applicant. Whilst there is certainly some financial hardship, it is also ameliorated by the fact that it was a temporary visa for a limited period. The applicant specifically referred to the hardship that he cannot work and that he is receiving no income. He said that he is the victim. The Tribunal notes that he is currently on a bridging visa and is prevented from working by virtue of a condition attached to that visa.

Circumstances in which ground of cancellation arose.

1. Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased. There were apparently other 457 visa holders who were also affected by the demise of the sponsoring business.

Past and present conduct of the visa holder towards the department

1. The Tribunal notes in the departmental decision record which was supplied to the Tribunal by the applicant, that there is reference to the visa holder’s sponsor having been sanctioned for various infringements of sponsor obligations under the subclass 457 visa program. One of the infringements related to payment of the 457 visa holders in cash. However, the Tribunal has been provided with the applicant’s ANZ bank statements which support the receipt of wages by the applicant from the sponsoring employer. The Tribunal has regard to all the material before it, including material supplied on the departmental file[8], however, the Tribunal does not draw any adverse inference about the conduct of the applicant towards the Department. This aspect of the circumstances would weigh against cancellation.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

[8] And noting that some of it is non-disclosable by virtue of a certificate under section 375A of the Migration Act

1. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case he and his wife have the opportunity to depart Australia. Whilst their continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

2. The Tribunal is mindful that Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

Whether there would be consequential cancellations under s.140

1. The Tribunal notes that there are consequential cancellations of visas for the applicant’s wife and child. However, the applicant’s son has never come to Australia and has remained in China. Whilst the applicant’s wife’s visa is also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his wife.

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

1. There is no evidence before the Tribunal to suggest that any international obligations would be breached by the cancellation. The Tribunal specifically raised with Mr Lin, whether he held any fear in returning to China and his response indicated that he did not hold any fear. He remarked that he was a bit upset.

Any other relevant matters.

1. The second named applicant is working for a mushroom farm. However there is no evidence before the Tribunal to the effect that she is the holder of a subclass 457 visa. Her employment is not determinative of this matter.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. The specific nature and purpose of the visa; the fact that the term of that visa has now ceased by the effluxion of time; the fact that the new nomination has not been approved and the effect that that has on the ability of the applicant to obtain a subclass 457 visa onshore, taken together are the factors which  outweigh any factors which militate against the cancellation of the visa.

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 and third named applicants.

Sue Raymond

Senior Member

ANNEXURE

Schedule 8 of the Migration Regulations

Condition 8107-relevant portions only

……………………………………………………………………………….

(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; or

…………………………………………………………………………

………………………………………………………………………………………….

(b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 90 consecutive days; and

…………………………………………………………………………………………..

(3A)  For subparagraph For subparagraph (3)(a)(ii), the circumstances are that:

………………………………………………………………………………………….

(aa)  if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

(b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.