1606238 (Migration)

[2016] AATA 4677

1606238 (Migration) [2016] AATA 4677 (18 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss XIONG RU

CASE NUMBER:  1606238

DIBP REFERENCE(S):  BCC2016/772406

MEMBER:Bruce Henry

DATE:18 November 2016

PLACE OF DECISION:  Brisbane

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 18 November 2016 at 2:49pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 April 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 that the applicant did not comply with a condition of her visa, condition 8107. 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. The applicant appeared before the Tribunal on 7 October 2016 to give evidence and present arguments. Ms Young Eun Kim, the owner of the Sushi Asakusa restaurant in Toowoomba also attended the hearing to give evidence on behalf of the applicant.

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 the applicant’s visa was subject to condition 8107, which so far as it is relevant is attached to this decision.

   Background

8. The applicant arrived in Australia on 15 May 2011 as the holder of a subclass 573 (higher education) student visa that was valid until 30 August 2013. She was originally enrolled to study English and then a Graduate Certificate in Business. She was granted further subclass 573 visas valid until 30 August 2014, and completed a Master’s degree in Business at Griffith University.

9. On 29 October 2014 the applicant was granted the subclass 457 visa that is the subject of this application, which was valid until 29 October 2018. As noted above, that visa was cancelled by the Department on 26 April 2016.

10. The applicant’s subclass 457 visa was granted on the basis of a nomination by an approved standard business sponsor, Yuu Sushi Train Pty Ltd, for her to work as a Restaurant Manager at the company’s Sushi Train restaurant in Tamworth, New South Wales.

11. The background to the cancellation is set out in the decision record of the delegate, a copy of which has been provided to the Tribunal by the applicant:

    RU XIONG was notified of the intention to consider cancellation (NOICC) on 14 April 2016 and the notice invited RU XIONG to respond in writing.

    On 20 April 2016, RU XIONG sent an email in response to the Department’s NOICC.

    In RU XIONG’s response, RU XIONG did not dispute there are grounds for cancellation.

    The standard business sponsor who nominated RU XIONG in the most recently approved nomination for the visa is YUU SUSHI TRAIN PTY LTD (‘the sponsor’) whose nomination was approved on 23 September 2015.

    On 03 September 2015 the Minister received information, stating that RU XIONG ceased employment with YUU SUSHI TRAIN PTY LTD effective 14 August 2015.

    This indicates that RU XIONG is in breach of paragraph 8107(3)(b) of condition 8107 attached to the visa, because it appears that RU XIONG has ceased employment with the sponsor for a period exceeding 90 consecutive days.

    Based on the information before me, I am satisfied that there is a ground for cancellation of RU XIONG’s visa under paragraph(s) s116(1)(b) breach of condition - 8107 of the Act. …

    RU XIONG was granted the visa for the purpose of working for an approved sponsor in a skilled occupation which she was specifically nominated to work in. As RU XIONG ceased employment in the nominated position with YUU SUSHI TRAIN PTY LTD on 14 August 2015, it appears that she is no longer in Australia in accordance with the original purpose of her visa.

    Records available to the Department indicated that RU XIONG lodged a new nomination with new sponsor, XYZ INTERNATIONAL PTY LTD on 18 March 2016. However, the new nomination application was lodged after the ninety (90) day period had lapsed.

    The visa allows the holder a period of ninety (90) consecutive days after ceasing employment to resolve the matter by securing a new nominated position with a sponsor. RU XIONG ceased employment for which the visa was granted on effective 14 August 2015. RU XIONG had not lodged any new nomination within a cumulative period in excess of seven months. Therefore I give substantial weight to the consideration for cancelling the UC 457 visa on this factor.

    RU XIONG is not required to retain her UC 457 visa in order to pursue her outstanding nomination application. In the event of cancellation of her UC 457 visa, RU XIONG will be eligible to apply for a Bridging Visa E to allow her to continue to lawfully remain in Australia while that application is processed.

12. The circumstances in which the ground for cancellation arose were set out by the delegate:

    In response to the Department’s NOICC on 20 April 2016, RU XIONG stated the following:

    ✃RU XIONG had been employed by YUU SUSHI TRAIN PTY LTD since 11 November 2014 in TAMWORTH. The position was found through an agent, BEKCY WU, HONG YOUNG CAPITAL HOLDINGO. RU XIONG’s purpose of stay in Australia was to work and to use her skills in order to benefit herself and her local workforce. RU XIONG was happy because she loves Australia and wants to work and live here. RU XIONG signed an Employment Agency Agreement with the agent so that they could seek and find job opportunities for her. After RU XIONG paid the first half of service fee which was $60,000 to the agent, she was arranged to meet with BRYCE PURNELL, Director of YUU SUSHI TRAIN PTY LTD in Sydney. BRYCE PURNEL offered her the Restaurant Manager position with an annual salary of $40,000 on the condition she would work 45 hours a week. RU XIONG was not aware of legal rights and working laws and she therefore accepted the offer, paid the remaining service fee which was $60,000 to the agent and moved to Tamworth for work.

    ✃RU XIONG worked at YUU SUSHI TRAIN as a Restaurant Manager and performed her duties excellently within the ANZSCO standards. RU XIONG believed that she had been complying with all the conditions of her visa.

    ✃On 13 August 2015, RU XIONG was notified about the liquidation of the employer. RU XIONG was shocked. RU XIONG did not know the reason of the liquidation and what to do after this. BRYCE PURNEL did not come to the shop as he always stayed in Sydney. RU XIONG and the staff were given false hope that the shop would be reopened. BRYCE PURNELL avoided meeting them in person, did not provide any explanation and changed his phone number. The employer still owes RU XIONG and the staff wages for the last month.

    ✃RU XIONG lodged a Regional Employer Nomination (subclass 187) visa application on 27 May 2015. BRYCE PURNELL could not answer her when he was asked about the visa application after the business closed. BRYCE PURNELL also did not pay superannuation for her.

    ✃RU XIONG contacted BECKY WU. BECKY WU advised her not to worry and promised her a new job. RU XIONG believed that they could sort it out for her. RU XIONG was very concerned about her compliance with her visa conditions as she always had done the right thing with Immigration, the Tax Office and other authorities. RU XIONG called BECKY WU once a week to follow up about her case. BECKY WU always gave her progress updates of the new sponsorship arrangement. However, on 30 November 2015, BECKY WU sent RU XIONG an employment contract of a Bar Manager position. RU XIONG refused the offer because she does not have any experience or skills to fit that role. RU XIONG believed that it would not be in compliance with her visa conditions, which stipulate she must work in a Restaurant Manager position. RU XIONG rejected the Bar Manager offer so that she could comply with her 457 visa conditions. RU XIONG asked BECKY WU to find her a suitable restaurant and was told that Bar Manager position was the only option available for her. RU XIONG requested a refund from BECKY WU. RU XIONG could not get a refund due to the signed agreement. RU XIONG stated that they abused her lack of knowledge and wanting to obey the rules. This put her future in jeopardy and having no money or savings left.

    ✃RU XIONG could not say anything to her family and friends. RU XIONG was very much stressed and had anxiety all the time.

    ✃RU XIONG stated that under these circumstances the cancellation grounds arose which was outside of her control. She did everything to find alternative employment only according to the Immigration rules. She has never been prepared to break the law, disobey the rules or abuse being in Australia.

    ✃RU XIONG was actively seeking a new sponsor. She found a new sponsorship with XYZ INTERNATIONAL INVESTMENT PTY LTD. The new sponsor had offered a Restaurant Manager position at their new Japanese restaurant in Toowoomba. A new nomination was lodged.

    ✃RU XIONG prepared to take legal actions against her previous agent and sponsor. RU XIONG has a lawyer and a migration agent, SAM JAZAYERI assisting and representing her in her case.

    ✃RU XIONG requested not to cancel her visa and give her opportunity to contribute to Australian regional areas.

    RU XIONG provided the following document in his response:

    ✃   A copy of Employment Agency Agreement, dated 10 December 2014

    ✃   A copy of Job Offer from Yuu Sushi Train, dated 30 July 2014

    ✃   A copy of Acknowledgement of Nomination application received, dated 18 March 2016.

    While I accept these claims and evidences, RU XIONG ceased employment with the sponsor on 14 August 2015 and had not lodged any new nomination application within a cumulative period in excess of seven months and therefore remains in breach of condition 8107. The 457 visa provides the visa holder with a period of 90 days after ceasing employment to find another sponsor, apply for another visa or depart Australia. I give substantial weight to the consideration for cancelling the UC 457 visa on this factor.

    I have considered RU XIONG’s unfortunate circumstances and all the evidence before me however she is in Australia on a temporary working visa and is required to abide by the conditions of that visa. RU XIONG had 90 consecutive days to find a new nominated position with a sponsor however it had been over seven months since her employment was terminated. Having regard to all of the matters and information discussed above, I am satisfied that RU XIONG has not complied with condition 8107. I have placed less weight on the information provided as it does not mitigate the breach that has occurred and therefore I give significant weight to this consideration for cancelling her visa.

    I am satisfied that there is no reason before me in relation to the grounds of cancellation which arose providing reason not to cancel her visa. …

13. The applicant provided to the Tribunal a statement dated 28 September 2016, in which she provides much the same information that she had previously provided to the Department, as set out in the decision record above. In relation to the fee that she paid to the employment agent she says:

    I was very happy, because I love Australia, and I want to work and live in here. After lengthy discussions, she sent me an Employment Agency Agreement, asked me to sign and pay a fee of $120,000. For me, this was a huge amount of money, but it seemed like that was the really last chance if I wanted to work in Australia. The way I made aware of the situation was that, this was an investment for my future for a better life in Australia; I had no idea how much it would have costed otherwise.

14. The applicant also states that she has now been nominated for a new position, and started working on at a new Japanese restaurant in Toowoomba, Queensland, Sushi Asakusa, under a nomination lodged by XYZ International Investment Pty Ltd on 18 March 2016. She provided to the Tribunal a copy of a Nomination Approval Notice from the Department dated 8 September 2016 recording the approval of a nomination by that company in respect of her in the position Café or Restaurant Manager, ANZSCO Code 141111.

15. It is clear on her own evidence that the applicant ceased work at the Sushi Train restaurant in Tamworth on 13 August 2015. She told the Tribunal at the hearing that she did not commence work at the Sushi Asakusa restaurant in Toowoomba because her visa was cancelled before the restaurant was due to open at the end of April 2016. She said that she has not worked since her employment at Sushi Train in Tamworth ended.

16. Condition 8107(3)(b) requires that if the holder of a subclass 457 visa granted to enable her to work for a standard business sponsor ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal is satisfied that the applicant did not comply with this condition.

17. For these reasons, the Tribunal finds 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

18. 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 generally has regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3.

19. The Tribunal has been unable, however, to locate any current policy specifically on the exercise of the discretionary power to cancel a visa for breach of a condition. Previous versions of the policy also referred to factors such as the circumstances in which ground of cancellation arose, stating that ‘as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control’. In the Tribunal’s view, this is clearly one of the matters to which the Tribunal should have regard in determining an application of this kind.

20. In this case, the Tribunal notes that there is no suggestion that the applicant has otherwise failed to comply with immigration law, and that the Department was notified of the cessation of her employment by her previous sponsor. She has been nominated by a new sponsor under an approved nomination for a similar position at a new restaurant in Toowoomba, and it was confirmed at the hearing that she is able to start immediately in that position should her visa be reinstated.

21. The Tribunal notes that Ms Kim, the owner of the Sushi Akasuka restaurant in Toowoomba confirmed at the hearing that her nomination for the applicant to manage her restaurant had been approved by the Department.

22. On the evidence before it, as set out in the delegate’s decision record, the Tribunal is satisfied that the applicant ceased work with her previous approved sponsor because the business went into liquidation, and she did not leave her employment by choice.

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Bruce Henry
    Member

    
    

    ATTACHMENT

    Extract from Migration Regulations 1994, Schedule 8:

    8107

    (1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a) cease to be employed by the employer in relation to which the visa was granted; or

    (b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    (c) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

    (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:

    …

    (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

    (aa) the holder must commence that work within 90 days after the holder’s arrival in Australia; and

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

    (c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:

    (i) hold the licence, registration or membership; and
    (ii) comply with each condition or requirement to which the licence, registration or membership is subject.

    (3A) 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); …