1601361 (Migration)

[2016] AATA 4354

1601361 (Migration) [2016] AATA 4354 (9 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yunfei Niu

CASE NUMBER:  1601361

DIBP REFERENCE(S):  BCC2015/2380581

MEMBER:Miriam Holmes

DATE:9 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review     and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 09 September 2016 at 11:33am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 February 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s 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 applicant, Ms Niu, ceased employment with Falcon Capital Pty Ltd, the sponsor, on 13 February 2015 and remained unemployed for a period of more than 90 days.

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

4. The applicant appeared before the Tribunal on 18 July 2016 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the visa should be set aside and substitutes a decision not to cancel the visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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 relevant condition is condition 8107 attached to the applicant’s visa.

8. The critical aspect of condition 8107, for the purposes of this review application, is paragraph (3)(b) which states:

   (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):

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

9. The Tribunal made the following findings based on the delegate’s decision record provided to the Tribunal by the applicant, the written submissions of the applicant and the oral evidence of the applicant:

   -On 9 January 2014 Falcon Capital Pty Ltd, the applicant’s employer, was approved as a temporary business entry standard business sponsor for a period of three years until 9 January 2017.

   -On 14 January 2014 the nomination application made by Falcon Capital Pty. Ltd. in respect of the applicant for the occupation of financial investment advisor (ANZSCO 222311) was approved.

   -On 14 January 2014 the applicant was granted a subclass 457 visa until 14 January 2018 in the occupation of financial investment adviser. This application was granted on the basis that she would be working for Falcon Capital Pty. Ltd., her sponsor.

   -On 13 February 2015 the applicant ceased working for the sponsor, Falcon Capital Pty. Ltd.

   -On 24 February 2015 Falcon Capital Pty. Ltd. notified the Department that the applicant ceased employment with the sponsor on 13 February 2015.

   -The applicant did not continue to work for the sponsor, or the associated entity of the sponsor, for the purposes of fulfilling a requirement under the law relating to industrial relations and relating to the giving of notice.

   -The applicant was not employed between 13 February 2015 and March 2016. The applicant did not hold any employment for a period of more than 90 consecutive days after 13 February 2015. The applicant resumed employment sometime around March 2016. This employment was not with an approved standard business sponsor.

10. The Tribunal finds that the applicant was the holder of a subclass 457 visa on the basis that the applicant met the requirements in cl.457.223(4). The Tribunal finds that the applicant ceased employment and the period in which she ceased employment was in excess of 90 consecutive days. Therefore, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

11. 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

12. 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’.

13. In exercising the Tribunal’s discretion the Tribunal had regard to the following matters.

14. The Tribunal made the following findings based on the oral evidence of the applicant, the delegate’s decision record and other documentary material and submissions made by the applicant during the course of the review process.

15. The applicant is a citizen of China and was born in China in 1987, and is aged 29 years.

16. The applicant obtained a Bachelor of Economics in China.

17. The applicant travelled to Australia in November 2009 on a student (subclass 573) visa for the purpose of studying a Masters of Business in banking and finance at Monash University.

18. After arriving in Australia the applicant undertook a six-month English language course. The applicant then studied for the following two years at Monash University and graduated in September 2012 with a Master of Business (Banking and Finance). She undertook her studies as a full-time student.

19. After completing her studies the applicant commenced applying for jobs in her field. Initially she undertook a training program but undertook no formal work experience between September 2012 and September 2013. She stated that the training programs that she undertook were not formal full-time programmes and were unpaid. She stated that she helped out at these companies like a volunteer. She stated that she worked for three months as a volunteer with HJT Mortgage Brokers. The applicant stated that in that period she was supported by her family who lived overseas in China.

20. Whilst looking for employment, the applicant undertook a Diploma of Financial Planning at Kaplan Education Proprietary Limited. She stated that in order to be legally authorised to practice as a financial planner she was required to undertake this qualification. On 4 July 2013 the applicant was awarded the Diploma of Financial Planning. The applicant stated that she undertook this course approximately 3 months.

21. In about September 2013 the applicant was introduced by her migration agent, Ms Lily Ong, to a potential employer for the purposes of obtaining a work visa to remain in Australia. The applicant stated that her migration agent, introduced her to a finance company with the trading name of First Guardian Capital and a business name of Falcon Capital Pty. Ltd (Falcon Capital). She stated that Ms Ong introduced her to this business because they were looking for a financial planner.

22. From 29 September 2013 the applicant was legally authorised to work as a financial planner. The applicant provided a copy of a letter of authority from WM Planning Pty. Ltd. It states that she was an authorised representative of WM Planning Pty. Ltd. and that she was authorised to advise and deal in various products, including deposit and payment products, government debentures, stocks or bonds, securities and superannuation.

23. The applicant stated that Falcon Capital was the holder of a wholesale licence and WM Planning was the holder of a retail licence. She stated that she needed authorisation from the separate licence holder WM Planning so she was authorised to give individual financial planning advice under the financial planning regulatory regime. She stated that the WM Planning authorisation authorised her to work full time as an employee of Falcon Capital to give individual financial planning advice to clients.

24. The applicant stated that after the referral by her migration agent she attended an interview with Falcon Capital and they employed her. The applicant commenced working with Falcon Capital in September 2013.

25. Thereafter an application was made for Falcon Capital to be approved as a standard business sponsor to sponsor the applicant. This application was prepared by Ms Ong. Subsequently, on 9 January 2014 Falcon Capital was approved as a standard business sponsor and the associated nomination was approved on 14 January 2014. The applicant was thereafter granted her subclass 457 visa from 15 January 2014 until 15 January 2018 for the nominated occupation of financial investment advisor.

26. In about November 2014 the applicant was advised by Mr David Anderson, a director of Falcon Capital, that they were having problems with auditing and the accounting books and the firm may not be able to continue to employ the applicant as a full-time employee in the role of a financial adviser.

27. However, sometime later in late November 2014 or December 2014, the two directors of Falcon Capital, Mr Anderson and Mr Selimaj, advised the applicant that the financial problems had been solved and that the business is growing and the auditing problems had also been resolved. They also advised the applicant that the company had switched auditors. In the written submission the applicant states that the directors offered her another role as a client relationship manager with FG Agri Pty Ltd (a related company) and another role at Paretho Wealth, but she declined these offers.

28. The applicant states that she only found out later, sometime in the period between December 2014 and February 2015, that the financial difficulties of the company had not been resolved and they were still out of control.

29. On 13 February 2015 the applicant ceased employment with Falcon Capital.

30. On 24 February 2015 the sponsor, Falcon Capital, notified the Department that the applicant was no longer employed by the sponsor and ceased employment on 13 February 2015.

31. The applicant stated that she was unaware that the sponsor had notified the Department that she had ceased employment with the sponsor until sometime in March 2015.

32. The applicant says that she did not contact of Department after her employment ceased as she did not know the sponsor had notified the Department of the cancellation of the sponsorship until March 2015. The applicant states that she became aware that the sponsor had contacted the Department after speaking with an ex-colleague who had been working with Mr Anderson. She said that a former colleague asked the applicant about what she was doing since her sponsorship had been cancelled and the applicant replied that she did not know that the sponsorship had been cancelled. She indicated that her migration agent had not been advised either of the sponsorship being cancelled. The applicant stated she spoke to her migration agent Ms Ong about what to do and Ms Ong said she did not know what to do. The applicant then spoke with Mr Anderson in about March 2015 about the cancellation of the sponsorship and he confirmed that the nomination had been cancelled and that he could no longer help the applicant anymore.

33. The applicant stated that she was in a panic and her family were supporting her from overseas. She started looking for employment but also commenced studies. She started to apply for new jobs in the hope of obtaining a new standard business sponsor, so she could transfer her sponsorship to a new employer.

34. The applicant stated that she commenced an Advanced Diploma of Financial Planning at Mentor Education for a period of three months and this qualification was awarded on 22 May 2015.

35. The applicant stated that she did not contact the Department after ceasing her employment as she did not know what to do. She did not consult with her migration agent, because she could no longer keep working with her, as she could not afford to pay her migration agent. The applicant stated that she applied for a number of new jobs, and received responses from potential employers. She stated that she went to a few interviews.

36. The applicant was offered a job with Wealth & Risk Management in about May 2015. The applicant provided an authorised representative certification dated 15 May 2015.

37. The sponsorship applications made by Wealth & Risk Management were managed by another migration, Mr Sean Clancy. Mr Anderson from her previous employment had referred her to the migration agent Mr Sean Clancy. Sometime around September 2015 Wealth & Risk Management, with the assistance of the migration agent, made an application to be approved as a standard business sponsor. The applicant understands the sponsorship applications were refused because Wealth & Risk Management did not meet the training benchmarks.

38. On 29 September 2015 the Department issued a notice of intention to cancel the applicant’s sc457 visa.

39. After she received the notice of intention to cancel her subclass 457 visa, Wealth & Risk Management lodged a second standard business sponsorship application on or about 29 September 2015.  This second standard business sponsorship application was refused on 9 December 2015. The applicant understands the sponsorship application was refused because the application did not meet the training bench mark requirements. The Department letter dated 9 December 2015 states that the sponsorship application was refused because the sponsorship applicant did not meet the training benchmarks.

40. The applicant stated that during this time the migration agent had given positive indications to the applicant that the sponsorship applications would be successful. The applicant states she did not become aware of the second refusal of the sponsorship application until February 2016 when she received notice of the cancellation of her subclass 457 visa.

41. On 2 February 2016 the Department issued its notice of the delegate’s decision to cancel the applicant’s subclass 457 visa. The applicant has subsequently held a bridging visa to remain in Australia. 

42. After the applicant received the cancellation decision she asked for advice from Mr Clancy, the migration agent, about what she should do. Mr Clancy advised her that there was no point in seeking a review of the decision to cancel visa and to pack and leave Australia. The applicant then sought the advice of two other agents about what her future options were in relation to her migration status, both agents suggested that she seek review at the Tribunal and obtain a bridging visa whilst waiting for the outcome of the review.

43. The managers at Wealth & Risk Management advised the applicant that the business was still growing fast in 2015 and they were seeking to hire the applicant, and other overseas persons to work in their business. They advised the applicant that they had restructured the business and there was a new division that they had commenced for the purposes of giving financial planning advice. The new business is called YES FP Pty Ltd.

44. The applicant gave evidence that sometime around March 2016, after the applicant was given a right to work on her bridging visa, the applicant states that she commenced working for the new business, YES FP Pty Ltd. The written submissions state that the applicant was given work rights on her bridging visa on 18 February 2016 and she commenced working for YES FP Pty Ltd on 9 March 2016.

45. In around May 2016 the new business, YES FP Pty Ltd, lodged a standard business sponsorship application to be approved as a standard business sponsor. On 6 June 2016 the standard business sponsorship application was approved for a period from 6 June 2016 until 16 December 2017.

46. On 10 June 2016 the new business, YES FP Pty Ltd, lodged a nomination application in respect of the applicant for the purposes of being a financial investment advisor. The applicant has been advised that it will take approximately 4 to 6 months for the nomination application to be considered and a decision made.

47. The Tribunal discussed with the applicant whether there was any documentary evidence of her employment with YES FP Pty Ltd.  The applicant provided her laptop to the Tribunal and showed an electronic version of a payslip for the period 2 May 2016 until 13 May 2016 although the payslip that was dated 19 April 2016. The payslip noted that the applicant was employed as a financial adviser and her gross fortnightly income was $2307.70. The payslip also noted that year-to-date gross income from wages was $29,653.87. The Tribunal noted that it had some doubts about the year-to-date figure as it is substantially higher than her fortnightly gross salary payments, if she had commenced in March 2016. The applicant explained that the sum in the year to date figure also included her commissions, which is almost double her fortnightly wage. The payslip also noted that the annual income of applicant was $60,000 and there was no reference in the payslip to any commissions payable. The payslip also noted her hourly rate $28.18462 cents. The applicant stated that her current boss is Mr Aflal Hussain.  The applicant stated that she receives commissions from the company for fees earned, as well as commissions from the company providers (e.g. banks). The applicant stated that the role of a financial planner involves meeting with clients and developing strategies for them to achieve their financial goals. She stated that the clients are referred to her from the associated business called YES FS, which is a business development company.

48. The Tribunal deferred making a decision to enable the applicant to provide additional evidence in relation to her current employment and to consider the postponement request.

49. After the hearing, the Tribunal received from the applicant a copy of bank statements from 21 March 2016 to 16 July 2016. These bank statements showed fortnightly deposits of $1,835.70 from YES FP PL commencing on 24 March 2016. The Tribunal notes the evidence that the applicant received work rights in or around 18 February 2016 and she commenced work on 9 March 2016 as advised to the Tribunal in the applicant’s written submissions. The Tribunal has some reservations as the Tribunal notes that there was no payment on 19 April 2016 as shown on the payslip at the hearing, however there was a payment to the applicant on 19 May 2016. The total amount paid into the account between 21 March 2016 and 16 July 2016 was $16,521.30, substantially less than the year to date figure of $29,675 (gross) reflected on the payslip shown to the Tribunal. The Tribunal calculated the gross income in the period based on nine net payments made in the period as shown in the bank statements, using the amount of $2303.70 weekly gross paid on the payslip shown to the Tribunal) is $20,769.30 – this still significantly less than the year to date gross figure shown on the payslip to the Tribunal during the hearing.   The applicant in the comments of the Tribunal’s electronic upload noted that “commissions and bonuses from April to June were withheld with the licensee for reporting purposes. I haves only been receiving base pay.” The Tribunal has some reservation as to what the applicant has in fact been paid and for what period she has been paid (i.e. when did she commence) given the inconsistencies between the payslip shown to the Tribunal at the hearing and the bank records. The Tribunal is satisfied that the applicant has been working with YES FP Pty Ltd since at least 9 March 2016 and has been paid $1,835.70 net per fortnight since that date.

1. After the hearing, on 31 August 2016 the applicant provided the Tribunal with a copy of a Department letter dated 31 August 216 approving the nomination application by YES FP Pty Ltd in respect of the applicant for the occupation of Financial Investment Adviser. This information is consistent with the Department’s electronic records which show the nomination application by YES FP Pty Ltd in respect of the applicant for the occupation of Financial Investment Adviser was approved on 31 August 2016.

2. The applicant is not married and has no children. The applicant’s parents currently reside in China and are currently considering retirement. The applicant’s father is involved in education and the applicant’s mother is a vet. They live in the Hunan province.

3. The applicant stated that if the visa is cancelled then the implication would be that she would have to leave Australia and there would be a three-year ban for her applying for another sc457 visa. She stated that she had been advised she could travel overseas and apply offshore for a subclass 186 visa. The Tribunal does not accept that the applicant would be unable to apply for a sc457 visa whilst she was offshore and would be excluded for a period of three years. The Tribunal notes that a sc457 visa application must meet the requirements in PIC 4013 and PIC 4014, which do include three year exclusion periods in some instances. However the Tribunal does not consider these exclusion periods are applicable in this case, having regard to the ground of cancellation and that the applicant secured a bridging visa within 28 days of her sc457 visa being cancelled. Further, the applicant may also seek to apply for a sc186 visa offshore where there is no requirement to meet PIC 4013 and PIC 4014.

4. The applicant stated that if the visa was cancelled then she would seek ministerial intervention on may go to the Federal Court, because she believes it’s unfair that she has to bear the consequences of what’s happened.

5. The Tribunal asked the applicant about returning to China if the visa was cancelled. The applicant stated that she can go back to China but she would prefer not to go back to China. She stated she would not prefer not to return because she likes her occupation in Australia and the industry of financial planning is still a developing industry in China and she may not find work there in that industry. The Tribunal indicated that it had some reservations that the applicant with her qualifications, including a Bachelor of Economics and a Masters of Business from an Australian university, would have difficulty obtaining employment in China. The applicant responded that she would be able to secure another job in China but she likes the employment that she currently holds in Australia. She said it is difficult in China and that she would have to connect with people and it’s an unfair country in China. The Tribunal again reiterated that it had some doubts that she would be unable to secure employment given her education. The applicant replied that everyone in China has two degrees. She went on to say that China does not have a developed financial planning industry. She indicated that with her qualifications she would obtain some form of employment in China.

6. The applicant states she has a little fear of going back to China. Firstly, she states that she would be concerned about her financial security as her parents are planning to retire, so she would not have their financial support if she was to return to China. Secondly, she was concerned due to the incidence of crime in China.

7. The Tribunal acknowledges that the applicant does not want to return to China and that she is concerned about obtaining employment and having the financial support of her parents. The Tribunal considers that the applicant is highly qualified in the financial sector and that with her qualifications he would be able to secure employment in China and to generate an income to support herself. The Tribunal accepts there may be crime in China but the Tribunal is not persuaded that the risk of crime in China is such that the applicant would be at significant risk if she were to return to China.

8. On the information available, the Tribunal is satisfied that Australia would not be in breach of its international obligations if the visa is cancelled and the applicant returns to China.

9. The applicant submitted that she has taken great steps to try and obtain another sponsor so that she can remain in Australia with a Subclass 457 visa. The applicant states that the new business is registered with ASIC and registered to provide financial planning advice.

10. After considering the circumstances as a whole, on balance the Tribunal considers the visa should not be cancelled.

11. In 2009 the applicant travelled to Australia to study. After completing her studies, in January 2014 she was granted a subclass 457 visa on the basis of sponsored employment as a financial adviser. The applicant held that employment for approximately under a sc457 visa for a period of approximately 12 months with her sponsor Falcon Capital. From February 2015 the applicant ceased employment with Falcon Capital and she did not secure employment until March 2016. She was unemployed for a period of over 12 months whilst the holder of a subclass 457 visa. The period of unemployment was well in excess of 90 days allowed for under the conditions of the visa.

12. However, the Tribunal took into consideration that the applicant undertook study relevant to her occupation in the period that she was unemployed, although she was not in Australia as a student, and resumed working and actively pursued other alternative employment options, including two unsuccessful sponsorship applications by Wealth & Risk Management and a successful sponsorship application and nomination application by YES FP Pty Ltd.  The Tribunal is mindful that the sc457 visa scheme is to assist employers engage overseas workers on temporary visas for occupations where there is a skills shortage and the applicant’s services are now required by a new sponsor who has an approved nomination in the relevant occupation. Further, the Tribunal took into consideration that the subclass 457 visa was granted until January 2018 and consequently, the applicant can work for a period in excess of 12 months with the new sponsor if the visa was reinstated. 

13. After considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Miriam Holmes
    Senior Member