1600850 (Migration)

[2016] AATA 4402

1600850 (Migration) [2016] AATA 4402 (15 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Huaifeng GONG
Ms Lihua YANG
Mr Lei GONG

CASE NUMBER:  1600850

DIBP REFERENCE(S):  BCC2015/3586192

MEMBER:Kate Millar

DATE:15 September 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 other applicants.

Statement made on 15 September 2016 at 1:08pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Gong is a citizen of the People’s Republic of China.  On 13 June 2012 he was granted a Subclass 457 (Business (Long Stay)) visa, and came to Australia with Ms Yang and Lei Gong to work as a welder for Ausray Industries Pty Ltd. 

2. On 26 March 2015, an officer of the Department of Immigration and Border Protection conducted a site visit at his workplace, and the premises were found to be locked with no apparent business activity. On 21 August 2015, Ausray entered external administration. As a result, a delegate of the Minister for Immigration and Border Protection found that Mr Gong had ceased work since at least 26 March 2015, and this was a breach of a condition of his visa that required him to not cease work for more than 90 days. On 19 January 2016, the delegate made a decision to cancel Mr Gong’s visa under s.116 of the Migration Act 1958 (the Act).

3. The issue in this case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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 Mr Gong. 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.

5. Mr Gong was initially asked to attend a hearing on 22 June 2016, however did not attend until 40 minutes after the scheduled time for the hearing and the interpreter had been dismissed and the hearing was unable to proceed. He was asked to provide reasons for failing to attend at the scheduled time, but failed to do so.  On being followed up by the Tribunal, his representative provided further written submissions.  Giving Mr Gong the benefit of the doubt regarding his non-attendance, a further hearing was scheduled on 6 September 2016.

6. Mr Gong and Ms Yang appeared before the Tribunal on 6 September 2016 to give evidence and present arguments.  They said they had not attended the previous hearing on time due to traffic conditions and said they also nearly did not make it to his hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.

8. 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

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied a ground specified in that provision is made out. These include the ground set out in s.116(1)(b) of the Act, which provides that it is a ground for cancellation if the visa holder did not comply with a condition of the visa.

10. 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.

    Mr Gong’s evidence

11. This was an unusual hearing, in that Mr Gong appeared to have little understanding of the decision that had been made.  He said he was aware his visa had been cancelled, and said this was cancelled because no-one was at work when officers of the Department of Immigration attended in March 2015.  He initially said his visa had been cancelled in September 2015, and that it should not have been cancelled as he continued to work.  This date appears to relate to the date his sponsor entered external administration on 21 August 2015.  Mr Gong also gave evidence that he only stopped working when his visa was cancelled.  When it was pointed out to him that according to the decision record he provided his visa was cancelled on 19 January 2016, he then said he stopped working in February 2016.  He did not show any understanding about the sponsor being under external administration.  I found his readiness to change his evidence depending on the information provided to him resulted in me having little confidence about the evidence he gave. 

12. Mr Gong also gave evidence that he did not know that his visa had been cancelled.  He initially said he had not received any notice of the cancellation.  When his address was confirmed as the same address that the Department sent the notice of intention to cancel his visa and the notice that his visa was cancelled, he said he did receive these notices and took them to work but his employer, who he identified as Mr Xing Ray did not tell him his visa had been cancelled. 

13. Mr Gong gave evidence that his employer had applied for second subclass 457 visa.  He said his employer had found a new employer for him.  He did not have any evidence of a new nomination, and did not have any documents to show he had a new sponsor, but said that his migration agent would know about it.  He said his migration agent was too busy to attend the hearing.

14. Mr Gong impressed as being someone who appeared to consider he had been unfairly treated by his visa being cancelled as he said he was working.  He said the person he worked for was Xing Ray and he had worked whenever he was told to work.  His sense of being unfairly treated may be in light of his evidence that he had sold everything in China and paid 200,000 RMB to a migration agent in China for his visa.

15. While Mr Gong and Mrs Yang were genuine about their concern for their son’s education, I did not find their evidence about Mr Gong’s employment situation convincing or clear.  This may be because they did not understand either the immigration or employment system in Australia.  However despite feeling some sympathy for their plight if they have considered they have done what is required by Mr Gong’s employer in coming to Australia, the role of the Tribunal is to apply the legislation, and it is incumbent on Mr Gong to be aware of his visa status and the conditions on his visa. 

    Does the ground for cancellation exist?

16. 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 Mr Gong’s visa. This condition requires at cl.8107(3)(b) that if the visa holder ceases employment, the period which the visa holder ceases employment must not exceed 90 days.

17. I asked Mr Gong his understanding was of why his visa was cancelled, and he said the visa should not have been cancelled because he was working.  He said the reason he was given for cancelling his visa was that on the day the officers of the Department visited the factory was locked.

18. Mr Gong said he last worked in September 2015 as a welder, and has not worked since.  On being asked why the premises were locked in March 2015 when visited by officers of the Department, he said that everyone was still on Christmas holidays.  I do not find it credible that everyone would still be on Christmas holidays in March.  I considered whether this could be a reference to Easter, however in 2015, Easter fell on 5 April, after the date of the site visit. 

19. Mr Gong also said that the business was operating normally since September 2015 and that he had been to work for a few days, but could not tell me when he had last worked.  On being asked how the business was operating normally when according to his submissions it had been wound up, he said he had been to the workplace for a few days but had not worked there, just helped them to move things around. 

20. Mr Gong was not at work on 26 March 2015 when an officer of the Department visited the workplace.  In later submissions to the Department, he argues he continued to be paid by Ausray until a liquidator was appointed on 21 August 2015 and as such continued to work.

21. Mr Gong provided bank account statements showing a single transfer into his bank account stated to be from Ausray for a lump sum of $31,984.80 in the period 6 July 2015 to 4 September 2015.   I am not satisfied the payment of this lump sum in itself shows he continued to work for  Ausray in the absence of other evidence that he continued to work, as the payment of wages is not in itself conclusive of employment.

22. Mr Gong gave evidence on more than one occasion that he had last worked in September 2015, but later said he had not worked since his visa was cancelled. On it being noted that his visa was cancelled on 19 January 2016, as specified in the decision record of the delegate which he had provided, Mr Gong then said he received the letter in January 2016 and then stopped working.  He then said he last worked in approximately February 2016.  I asked why he previously said he last worked in September 2015, and he said he “didn’t know and that the company had received the letter and arranged that.” 

23. Mrs Yang said that in September, the company asked Mr Gong to “rest for some time”.  She said as a result he was not aware his visa was cancelled and just went to work whenever he was asked.  She said she could not remember when he last went to work.  She said before he received the letter in January 2016, he was working but not every day, and the work was on and off.  She did not know where he worked but that it was welding work and he was paid by Xing Ray.     

24. There is nothing before me to confirm the oral evidence of Mr Gong and Mrs Yang that Mr Gong has worked since September 2015.  This was not his evidence at the outset of the hearing, nor was it in the submissions provided either to the Department or to the Tribunal.  Mr Gong’s employer did not attend the hearing to give evidence.  I did not find the evidence of Mr Gong or Ms Yang convincing on when he was last employed. 

25. I am not satisfied, despite the payment of a lump sum to his account, that he has been employed since at least 26 March 2015. 

26. Even if I were not positively satisfied he has not been employed since 26 March 2015, there is nothing before me to show Mr Gong had been employed since 21 August 2015.  He did not provide any documentary evidence to show that working either at all or for an approved sponsor from this date.   He asserted he had worked either until September 2015 or until February 2016.  It follows that even if had worked to either of these dates he has not worked for over a year at the date of the hearing.

27. As a result, I find he has ceased employment for more than 90 days in breach of condition 8107(1)(b). 

28. As a result of being in breach of a condition of his visa, I am satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), I must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

29. 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’.

30. In the submission to the Department following the Notice of Intention to cancel the visa, Mr Gong’s representative said Mr Gong had been nominated by another company on 21 October 2015 “which is within the 90 day period.”  The written submissions by the migration agent, which refers to Mr Gong’s case number but to different person, are that as Ausray was wound up Mr Gong was left with no choice but to seek new employment in compliance with the Regulations and he lodged a new nomination within 90 days and is still waiting for a decision to be made.  It is submitted that both the winding up of Ausray, and that he is waiting for a decision on the new nomination application is beyond his control. 

31. Mr Gong said that if the visa had not been cancelled, it would have ceased on 6 July 2016.  This is approximately two months before the hearing.

32. Whether the new application for a 457 visa can be made either onshore or offshore, Mr Gong can apply for a further visa from offshore if required.  As his visa would have ceased if it were not cancelled, this would be the normal course of events.  In any new application he would need to show he has substantially complied with the conditions of his last substantive visa (cl.457.221 of Schedule 2 of the Regulations), that he has not acted in contravention of particular provisions of the Act (cl.457.223A) and that he meets certain Pubic Interest Criteria in Schedule 4 of the Regulations (cl.457.224).  Most of these provisions would have to be assessed regardless of whether Mr Gong’s visa is cancelled.

33. However these requirements, Public Interest Criterion 4013 sets out risk factors that include where a person has had a visa cancelled because he or she was found to have worked without authority (PIC4013(2)(a))  A risk factor may mean the person does not meet the requirements for a period of three years after the cancellation (PIC4013(1)(a)).  As the ground for cancellation in Mr Gong’s case involves ceasing work for longer than 90 days, and does not involve cancellation for working without authority, this does not apply. 

34. As a result, it is difficult to see how Mr Gong would be in a less favourable position in regard to an application for a 457 visa in the future if his visa is cancelled.     

35. At hearing he relied on the effect on his son’s education if he were required to leave Australia, and the difficulty he and his wife would have in obtaining employment.  He said they have sold everything in China and as a result cannot go back to live there. 

    The purpose of Mr Gong’s travel to Australia

36. The purpose of a subclass 457 visa is to fill short term shortages in the Australian labour market.  

37. Mr Gong was granted a 457 visa to work for Ausray as a welder.  I have found Mr Gong ceased employment from 26 March 2016, eighteen months prior to the hearing.  As such his presence in Australia does not continue to meet the purpose of his travel to Australia. 

38. He said his visa should not be cancelled because the company is still operating.  The Tribunal attempted to explain that it had difficulty accepting that this was the case as the company had been under external administration since 21 August 2015, and information provided by Mr Gong through his migration agent was that the company was wound up on 21 August 2015.    Mr Gong said the company was still operating in January 2016 when his visa was cancelled.     

39. Mr Gong said his visa should not be cancelled because his company had applied for another 457 visa for him.  He could not tell me the name of his company, but said his employer had told him he had found the next employer and had lodged an application on his behalf.  He said his migration agent should know that, but that his agent had told him that he was too busy to come to the hearing.  He acknowledged he did not have any documents to show that a new visa had been approved or a new sponsorship had been approved. 

40. Mr Gong lacked any real understanding of why his visa had been cancelled.  He denied knowing his visa was cancelled despite acknowledging it had been sent to his address.  When pressed on these matters he said he didn’t have any further comment to make.   He later acknowledged receiving a letter but said he did not understand it so gave it to the company.  He has not worked for over a year which is not consistent with the purpose for which the visa was granted. 

    The extent of compliance with visa conditions

41. There is nothing me to show Mr Gong has breached any of the other conditions of his visa.

    The degree of hardship that may be caused

42. Mr Gong said that cancelling his visa would cause hardship in their lives because they can’t work and his child can’t go to school.  On being asked why his son could not go to school, he said his Chinese language is not as good, and that because he has been to school in Australia for four years he will not catch up because the education system is different.  On being asked if his child could attend school in China, he said he could but that it would be hard to catch up.  This is different to not being able to go to school.  While I acknowledge that changing education systems may be difficult for Mr Gong’s son, I do not consider this a reason not to cancel the visa.  Mr Gong’s son is able to attend school if he returns to China and would not be separated from his parents. 

43. Mr Gong said it would be hard for him and his wife to find employment.  He says they sold everything to come to Australia and paid 200,000 RMB to a migration agent called Lu Quin Li in China. 

44. Mr Gong says he has not worked since ceasing work for Ausray.  Mrs Yang worked making sushi until the visa was cancelled.  They both now do not work, and say they support the family from savings.  It is difficult to see how they would face greater financial hardship remaining unemployed in Australia than in returning to China, where they both have the right to work. 

    The circumstances in which ground of cancellation arose

45. It was difficult to determine the reasons that the ground for cancellation arose.  There is evidence of the sponsor being under external administration, and Mr Gong previously submitted it had been wound up, however at hearing he said it was still operating.  It is possible for the company to be under external administration and still trading, however that has not been Mr Gong’s submission – he has said the company has been wound up.  On balance, I consider that Mr Gong is no longer able to work for Ausray and I accept this is for reasons beyond his control. 

46. I also view any explanation of the circumstances in which the ground for cancellation arose with considerable caution given Mr Gong said he paid 200,000 RMB for his visa.  Item 1223A of Schedule 1 of the Regulations provides that the visa application charge for a subclass 457 visa is $350AUD (approximately 1,760 RMB) for each applicant with a total for the family of approximately $1000AUD, and this fee is approximately 38 times the cost of the visa application.

47. Submissions on Mr Gong’s behalf state he had lodged a new nomination which has not yet been determined.  He did not provide any evidence of the nature of the work or the employer.  His new employer did not attend the hearing to give evidence about the need for Mr Gong to work for the new employer.  If this nomination is approved, Mr Gong can seek a further 457 visa from offshore. 

48. Mr Gong said he did not know his visa had been cancelled despite the notice being sent to his address. I do not accept that Mr Gong did not receive a letter regarding the intention to cancel the visa or the notice of the decision to cancel the visa because these documents are addressed to Mr Gong at his address.  I consider it more likely he did not understand the content of the letter and gave it to his employer.  It would seem any explanation provided by the employer was somewhat deficient.  However it is the responsibility of Mr Gong to be aware of the conditions of his visa and his current visa status. 

    Past and present conduct of the visa holder

1. Mr Gong has failed to engage with the Department to his detriment.  His agent has provided submissions of which Mr Gong seems unaware, or at least to lack understanding of the detail, in particular that the company has been wound up.  He did not seem to appreciate the importance of attending the hearing at their required time and failed to provide any explanation for not attending on time despite this request being made of him. 

   Consequential cancellations

2. If Mr Gong’s visa is cancelled, the visas of his wife and child will also be cancelled.  Mr Gong and Mrs Yang were clearly concerned about the effect this would have on their son’s education. 

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

3. I asked Mr Gong if there were any reason he would not be able to return to China.  He said that it would be hard for him to find a job.  He did not identify any other reasons he would be unable to return, and I do not have anything before me that would show international obligations would be breached as a result of the cancellation.

   Any other relevant matters

4. The Tribunal file contains extracts from a number of other associated cases of employees from the same workplace who have also had their visas cancelled.  I consider the exercise of the discretion is specific to the circumstances of the person before me.  As a result, I have not had any regard to the circumstances of others.  Other information included on the file is that the new nomination has not been approved.  This is consistent with Mr Gong’s evidence. 

   CONCLUSION

5. Mr Gong came to Australia having paid a large fee and having sold his possessions in China.  He has lived here for four years and in this time his son has attended school in Australia, which Mr Gong fears will make it difficult for him to re-enter the education system in China. 

6. Mr Gong’s employment by his sponsor ended and his sponsor placed into external administration.  He is the subject of a new nomination application, however this application has not been finalised and was not approved at the time of the hearing. He may apply for a further visa offshore.

7. In the normal course of events, Mr Gong’s visa would have ceased on 6 July 2016.

8. I do not consider the circumstances of Mr Gong’s employment ceasing, his concern for his son’s education or that a new nomination application has been lodged sufficient to outweigh the length of time Mr Gong has been in breach and the fact that his visa would have ceased in the normal course of events.  I consider his lack of financial resources in China to be due him paying 200,000 RMB to a migration agent, an amount that is considerably in excess of the visa application charges.    

9. Having considered Mr Gong’s circumstances as a whole, I have concluded that the visa should be cancelled.

   DECISION

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

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

    Kate Millar
    Member