1601815 (Migration)

[2016] AATA 4088

1601815 (Migration) [2016] AATA 4088 (11 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yi ZONG

CASE NUMBER:  1601815

DIBP REFERENCE(S):  BCC2015/3748878

MEMBER:Karen Synon

DATE:11 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 11 July 2016 at 9:47am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 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 had not complied with Condition 8107(3)(b).

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 applied for review of the decision to cancel her visa on 16 February 2016 and provided a copy of the department’s decision.

5. On 21 June 2016, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     Departmental records indicate that:

   o    On 15 November 2013 the Department approved a nomination lodged by KUNMING GONGPING AUCTION CO LTD for a ‘Contract Manager’ in your favour (‘the approved nomination’);

   o    On 5 February 2014 the Department granted you a Temporary Business Entry (Class UC) subclass 457 visa that was subject to mandatory conditions 8107 and 8501;

   o    On 21 January 2016 (by registered mail) the Department issued you with a Notice of Intention to Consider Cancellation (‘NOICC’) on the basis that the standard business sponsor who nominated you in your most recently approved nomination for the visa, KUNMING GONGPING AUCTION CO LTD, notified the department in writing that you ceased employment with it on 21 August 2015.  This information suggested that you appeared to have ceased employment for a period exceeding 90 consecutive days and therefore that you had not complied with paragraph 3(b) of condition 8107:

   §  The occupation listed in the approved nomination was not an occupation specified in the relevant instrument and, therefore, as the holder of your subclass 457 visa you can only lawfully work for either KUNMING GONGPING AUCTION CO LTD or an associated entity;

   §  The Department also invited you to indicate why you thought the ground for cancellation did not exist and to put forward any reasons why you felt your visa should not be cancelled;

   You did not respond to the Notice of Intention to Consider Cancellation of the visa (NOICC).

   This information is relevant to the review for the following reasons:

   ·     The Tribunal may find that your occupation, ‘Contract Manager’, is not a specified occupation for the purposes of paragraph 8107(3A);

   ·     Consequently, the Tribunal may find that you must meet the requirements of paragraph 8107(3)(b);

   ·     Given the information before it, the Tribunal may find that during the period you held your subclass 457 visa you had ceased your employment for more than 90 consecutive days;

   ·     As a result, the Tribunal may find that you did not comply with paragraph 8107(3)(b) of your subclass 457 visa and that, therefore, there is a ground for cancellation of your visa under paragraph 116(1)(b) of the Act; and

   ·     Unless the Tribunal is satisfied that it should exercise its discretion not to cancel your subclass 457 visa;

   ·     Then, if the Tribunal makes these findings, it would have no option other than to affirm the decision under review.

   You are invited to give comments on or respond to the above information in writing.

   Invitation to provide information

   Subsection 359(2) of the Act allows the Tribunal to invite a person to give it information that is relevant to the review of a decision.  Accordingly, the Tribunal now invites you to give the following information:

   ·Information that confirms for the purposes of the exercise of the Tribunal’s discretion regarding the cancellation of your subclass 457 visa:

   o    reason and extent of your breach of visa condition 8107;

   o    the degree of hardship that may be caused to you;

   o    the circumstances in which the ground of cancellation arose;

   o    your past and present conduct towards the department;

   o    any mitigating, compassionate and compelling factors;

   o    whether any international obligations would be breached as a result of the cancellation;

   o    the impact on any victims of family violence; or

   o    any other relevant matters you feel the Tribunal should take into account.

6. The invitation was sent to the applicant via her email address advised in the application for review.  The applicant was advised that if a response or comments were not provided in writing by 5 July 2016, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant has not provided comments or a response within the prescribed period and no extension has been sought or granted.

8. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via her email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

9. In making this decision the Tribunal notes that the applicant also did not respond to the department’s Notice of Intention to Consider Cancellation letter.

10. 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

11. 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?

12. 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(3) was attached to the applicant’s visa. Condition 8107 (3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutives days’.

13. On the basis of the information before it from department records (and as detailed to the applicant in accordance with s.359), the Tribunal finds that the applicant was granted a subclass 457 visa on 5 February 2014 to occupy a position of ‘Contract Manager’ at KUNMING GONGPING AUCTION CO LTD.  The Tribunal therefore finds, based on this information, that the occupation listed in the most recently approved nomination for the applicant is that of ‘Contract Manager’.

14. The Tribunal finds that the applicant’s occupation of ‘Contract Manager’ (ANZSCO Code 511111)[1] is not a specified occupation for the purposes of paragraph 8107(3A).

    [1] Referred to as ‘Contract Administrator’ in ANZSCO.

15. On 21 January 2016 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of her Subclass 457 visa.  The grounds for cancellation were that the applicant had not complied with the Condition contained in paragraph 8107(3)(b) specifically that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’ and that her sponsoring employer, KUNMING GONGPING AUCTION CO LTD, informed the department that the applicant had ceased employment with it on 21 August 2015.

16. The primary decision records that the applicant did not respond to the department’s NOICC and nor did the applicant give comments or respond to the information put to her in accordance with the provisions of s.359A of the Migration Act.

17. Therefore. relying on the information before it and in the absence of any other evidence provided by the applicant, the Tribunal is satisfied that the applicant ceased her employment as a Contract Manager with KUNMING GONGPING AUCTION CO LTD on 21 August 2015.  Further, as there is no information before the Tribunal that the applicant has subsequently resumed her employment with KUNMING GONGPING AUCTION CO LTD or an associated entity, it finds that during the period she held her subclass 457 visa she ceased employment for more than 90 consecutive days.

18. The Tribunal accordingly finds that the applicant has not complied with condition 8107(3)(b) of her Subclass 457 visa.

19. 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

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. The applicant has not provided any evidence to the Department or the Tribunal as to why her visa should not be cancelled.  She did not respond to the NOICC and nor did she respond to the Tribunal’s invitation issued under section 359(2).  Accordingly there are no submissions from the applicant in relation to the factors set out in PAM3.

22. While the applicant appears to have been in Australia to work for the sponsor (KUNMING GONGPING AUCTION CO LTD) as a Subclass 457 visa holder, she is no longer in that employment.  There is no evidence to indicate that she is currently the subject of an approved nomination for any other employer.

23. On the evidence before the Tribunal this appears to be the only time a visa condition has been breached.  There is no evidence to indicate the applicant has been uncooperative with the Department.

24. There is no information before the Tribunal that the applicant, or anyone on her behalf, has indicated to the Department or the Tribunal that she, or anybody else, will suffer any hardship if the visa is cancelled.  There does not appear to be any consequential cancellations.  There is no evidence to suggest that the applicant fears returning to her home country, China, or that any international obligations would be breached as a result of a cancellation.

25. Overall the Tribunal is of the view that the appropriate decision is to cancel the applicant's visa.  The Tribunal is mindful that the purpose of the Subclass 457 visa is to fill temporarily a skill shortage.  There is no evidence before the Tribunal to satisfy it that applicant currently has an approved or pending nomination in place to work in a skilled occupation.  There has been no information provided for any compelling need for the applicant to remain in Australia.  It is not aware of the circumstances in which the ground for cancellation arose.  It is satisfied that the applicant has had invitations to provide to the Department and the Tribunal any evidence to indicate the ground for cancellation arose in circumstances beyond her control.  She has not taken advantage of these opportunities.  While there is no evidence to suggest the applicant has breached other visa conditions or been uncooperative with the department, she has not availed herself of the opportunity to give evidence as to why the visa should not be cancelled.  The Tribunal is satisfied there are no other consequential cancellations to take into account.  It is satisfied international obligations will not be breached as a consequence of a cancellation.  It is not satisfied the applicant, or anyone else, will suffer hardship because of a cancellation.  Nor is the Tribunal aware of any particular extenuating or compassionate circumstances affecting the applicant which outweigh the grounds for cancelling the visa.  Further, there is no evidence before the Tribunal that the applicant’s removal would be in breach of Australia's non-refoulement obligations.

26. The Tribunal finds that the purpose of the review applicant's stay in Australia was to work as a Contract Manager (or Administrator) for KUNMING GONGPING AUCTION CO LTD on a temporary basis.  The applicant ceased her employment with this sponsor on 21 August 2015.

27. The purpose of granting a subclass 457 visa is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.  The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal finds that this purpose no longer exists as the applicant ceased working for her sponsor on 21 August 2015 and gives this factor significant weight.

28. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa and therefore the visa should be cancelled.

29. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Karen Synon
    Member