1609286 (Migration)

[2016] AATA 4632

1609286 (Migration) [2016] AATA 4632 (3 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms QING SUN
Mr YUANZHENG QIAO

CASE NUMBER:  1609286

DIBP REFERENCE(S):  BCC2016/892340

MEMBER:Steve Georgiadis

DATE:3 November 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 in respect of the second named applicant.

Statement made on 03 November 2016 at 11:35am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 June 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) 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 visa applicant breached condition 8107 which was imposed on her visa.

3. The issue in the present case is whether the 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 in respect of the first named applicant (the visa applicant). The second named applicant’s visa was 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 the second named applicant’s visa 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 in respect of the second named applicant.

5. The applicants did not appear before the Tribunal on the scheduled hearing day of 3 November 2016 or at any time.  The applicants did not respond to an invitation to attend a hearing sent to them by e-mail on 1 September 2016.  An interpreter of the Mandarin and English languages had been arranged for the hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the first named applicant’s visa should be affirmed.

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

7. 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.

8. In this instance condition 8107 attached to the visa applicant’s visa. This condition relevantly requires the visa applicant to work only in the occupation listed in the most recently approved nomination for the holder, in this case, Sales and Marketing Manager ANZSCO code 131112.

9. The view of the Department recorded in the delegate’s decision was that the visa applicant had been working in a role with duties more closely aligned with positions associated with a cook or customer service representative rather than that of Sales and Marketing Manager.  On 27 May 2016 the visa applicant responded to an invitation to comment on the Notice of Intention to Consider Cancellation (NOICC) issued to her and provided the following grounds why her visa should not be cancelled.

10. “I believe my 457 visa should not be cancelled, because at monitoring stage, the business has provided sufficient information and documents proving that I work as a sales manager.  The enclosed marketing strategy and review prepared by me as a sales manager could certainly prove that I am a sales manager.  The marketing strategy and review contains the information regarding that I have been performing full duties as a sales manager.”

11. On 20 June 2016 the delegate cancelled the visa under s.116(1)(b) on the basis that the visa applicant breached condition 8107. The delegate considered that the applicant had been working in a role other than Sales and Marketing Manager. The delegate found that a ground for cancellation existed and after considering the applicant’s circumstances, concluded that the grounds the cancelling the visa outweighed the reasons not to cancel the visa. A copy of the delegate’s decision was attached to the application for review.

12. Condition 8107 (3) requires, in circumstances where 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 ...

13. The Tribunal sought to hear oral evidence from the applicants to determine whether the visa applicant has complied with condition 8107 imposed on her visa specifically, 8107 subparagraph (3)(a)(i), to test the oral evidence regarding whether she has worked only in the occupation listed in the most recently approved nomination of Sales and Marketing Manager, and to consider any evidence relating to whether the power to cancel the visa should be exercised.

14. 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 Tribunal sought to have regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

15. As aforementioned, the applicants did not appear before the Tribunal at the scheduled hearing time and date on 3 November 2016 and no adjournment request was made or granted. There was no response whatsoever to the invitation to attend sent to the applicants.  Pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

16. The Tribunal is required to consider ‘all of the facts of a case in total’ and come to its own view as to whether an applicant meets the requirements for the visa.

17. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make an applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169 70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437 at 451.

18. Although in the exercise of its review function, the Tribunal may obtain such information as it considers relevant, the High Court established in the case of Minister for Immigration and Citizenship v SZIAI, that there is not imposed upon the Tribunal “a general duty to undertake its own enquiries in addition to information provided to it by the applicant and otherwise under the Act.” (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 [1]).

19. For these reasons, the Tribunal cannot be satisfied that the visa applicant has not breached condition 8107 attached to the visa where the ground for cancellation in s.116(1)(b) does not exist, or exercise the discretion not to cancel the visa.

20. In the aforementioned circumstances, where written notices have been sent inviting the applicants to give evidence and present arguments on the basis that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone, the Tribunal has no further evidence or information to satisfy it that no ground for cancellation exists and that it should exercise the discretion not to cancel the visa.

21. In the absence of further evidence and considering the purpose of the visa and the circumstances as a whole, the Tribunal concludes that the decision to cancel the first named applicant’s visa should be affirmed.

    DECISION

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

23. The Tribunal has no jurisdiction in respect of the second named applicant.

    Stavros Georgiadis
    Member