1612105 (Migration)

[2016] AATA 4858

1612105 (Migration) [2016] AATA 4858 (11 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bingqiang Xu
Mrs Lijuan Zhang
Miss Huilin Xu

CASE NUMBER:  1612105

DIBP REFERENCE(S):  BCC2016/2039625

MEMBER:Katie Malyon

DATE:11 November 2016

PLACE OF DECISION:  Sydney

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

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

Statement made on 11 November 2016 at 5:01 pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Illegal financial arrangement with sponsor – Sponsor not employer – On-hiring to other businesses – Threats from sponsor – Past and previous conduct – Failure to regularise visa status

LEGISLATION
Migration Act 1958, s 48, 116, 140, 348
Migration Regulations 1994, Schedule 8

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 August 2016 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) of the first named applicant, Mr Bingqiang Xu, under s.116 of the Migration Act 1958 (the Act). 

2. The delegate cancelled Mr Xu’s visa under s.116(1)(b) of the Act on the basis that he did not comply with condition 8107 that was imposed on his Subclass 457 visa. When applying for review, Mr Xu provided a copy of delegate’s decision record. The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. 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 Xu. The other applicants are his wife and his daughter. Their visas were automatically cancelled as a consequence of the cancellation of Mr Xu’s Subclass 457 visa, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of their visas self-executing on the cancellation of Mr Xu’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) of the Act, the Tribunal has no jurisdiction with respect to them.

4. Mr Xu appeared before the Tribunal on 12 October 2016 to give evidence and present arguments.  The Tribunal also received oral evidence from his wife, the second named applicant Mrs Lijuan Zhang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  Mr Xu was represented in relation to the review by his registered migration agent who also attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel Mr Xu’s visa should be affirmed.

   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. Relevant to this case, these include the ground set out in s.116(b) of the Act. 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. The provisions of s.116 of the Act and an extract from Schedule 8 of the Migration Regulations 1994 (the Regulations) in relation to visa condition 8107 are set out in the Annexures to this decision.

   Background evidence

7. Mr Xu’s is a 38 year old from China.  His Subclass 457 visa was granted on 2 August 2012 for a period of 4 years on the basis of an approved nomination in the occupation of Management Consultant with standard business sponsor Auyou Corporation Pty Ltd (Auyou).

8. As indicated in the delegate’s decision (a copy of which was provided to the Tribunal) on 7 March 2016 the Department was informed by Auyou that Mr Xu ceased employment with the company on 3 March 2016.  On 4 July 2016, the Department issued Mr Xu a notice of intention to consider cancellation (NOICC) on the basis that he may have breached visa condition 8107 attached to his Subclass 457 visa as more than 90 consecutive days had passed since he ceased employment with the sponsor that most recently nominated him and, in addition, he had admitted in a telephone conversation with an officer from the Department that he had been working in a casual capacity with various employers, none of whom he could name.

9. Mr Xu’s representative responded to the NOICC on his behalf 26 July 2016 requesting copies of certain documentation which the Tribunal notes the Department would not have had access to such as his client’s PAYG Statements and evidence of salary payments to Mr Xu.  No other documentation was received from Mr Xu, or his representative.  The delegate cancelled Mr Xu’s Subclass 457 visa on the basis that he had ceased working for his sponsor for more than 90 days in breach of condition 8107(3)(b).     

10. At the hearing, Mr Xu confirmed for the Tribunal the contents of his Statutory Declaration sworn 11 October 2016 lodged with the Tribunal before the hearing and a Statement made 16 October 2016 provided at the hearing in which he states:

    ·He was sponsored on a 457 visa by Auyou as a Management Consultant consistent with his employment contract.  Mr Kevin Xu (no relation) was his employer and his registered migration agent.

    ·Auyou never had a job for him as a Management Consultant, or otherwise.  Rather, he has been working as a Wall & Floor Tiler ever since arriving in Australia.

    ·Kevin Xu directed him to jobsites from the start of his time in Australia.  He would receive regular payments from his employers in cash.  In turn, he had to make a weekly deposit to Kevin Xu’s bank account of an amount adding up to his gross income and superannuation.

    ·In August 2015, he was facing financial hardship when the tiling work dried up and he could not keep up with Kevin Xu’s weekly payment demands.  He was required to pay a lump sum and was told that the lump sum covered some expenses for Auyou.  Mr Xu received many phone calls from Kevin Xu that, if he did not deposit the money to Kevin Xu’s account, he would be reported to the Department.

    ·He sought professional advice in November 2015 and was told Auyou is involved in an illegal agreement with him and, if he reports his sponsor to the Department, the company will be sanctioned and, as a result, he will lose his Subclass 457 visa. 

    ·His contract with Auyou was never terminated.  He has always chased Kevin Xu to provide him with work in order to meet Kevin Xu’s demands that his wages and other payments be paid into Kevin Xu’s bank account. 

11. Evidence of multiple bank record printouts confirming payments made by Mr Xu to Kevin Xu’s bank account were provided to the Tribunal.  Mr Xu’s representative also provided copies of Mr Xu’s Westpac Bank statements.  Further details of Mr Xu’s employment history in Australia were discussed at the hearing and are referred to below. 

12. Mr Xu advised the Tribunal that on 21 July 2016 his wife was nominated by approved sponsor Ant Tiling Group Pty Ltd (Ant Tiling) in the occupation of Wall & Floor Tiler ANZSCO 333411.  On 19 October 2016, his representative provided the Tribunal with evidence that Ant Tiling’s nomination in respect of Mrs Zhang had been lodged with the Department together with a summary of some of the company’s projects currently underway and a copy of the contract of employment confirming Mrs Zhang would be paid $98,000 per annum plus superannuation.  A decision by the Department regarding the nomination is still pending.

    Does the ground for cancellation exist?

13. A visa may be cancelled under s.116(1)(b) of the Act if the Minister, or the Tribunal, is satisfied that the holder did not comply with a condition of their visa.

14. When Mr Xu’s Subclass 457 visa was approved on 2 August 2012 permitting him to enter Australia and work as a Management Consultant for Auyou his visa was granted subject to conditions 8107 and 8501.  At the relevant time, condition 8107 was in the following terms:

    (3)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Business (Long Stay)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)  the holder must:

    (i)  work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)  unless the circumstances in subclause (3A) apply -  work only for:

    (A)   the standard business sponsor, former standard business sponsor, party to a labour agreement or former party to a labour agreement (the sponsor) who nominated the holder in the most recently approved nomination; or

    (B)  if the sponsor is a standard business sponsor or former standard business sponsor who lawfully operates a business in Australia -  an associated entity of the sponsor; and

    (b)  if the holder ceases employment - the period during which the holder ceases employment must not exceed 28 consecutive days.

    (3A)  For subparagraph (3)(a)(ii), the circumstances are that:

    (a)  if the nomination was made before 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    (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); or

    (b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

15. Mr Xu’s representative provided the Tribunal with copy of the visa grant notification issued on 2 August 2012 to Mr Xu.  The notification sets out the conditions attached to Mr Xu’s Subclass 457 visa and confirms the visa was granted subject to condition 8107 as outlined above.  Condition 8501 in relation to maintaining adequate health insurance also applied.  The Tribunal notes that the Westpac Bank statements provided by Mr Xu’s representative to the Tribunal confirm monthly payments were made to BUPA Australia and, accordingly, compliance with condition 8501.   

16. Since Mr Xu’s Subclass 457 visa was granted, condition 8107 has been subject to 6 legislative changes.[1]  Relevantly, changes effective 1 July 2013 increase the period in which a visa holder can cease to be employed from 28 to 90 consecutive days.  Additionally, a new requirement in clause 8107(3)(aa) was introduced which applies to visas in effect on 1 July 2013 (such as Mr Xu’s Subclass 457 visa) and visas granted on or after that date requiring visa holders to commence work in the occupation listed in the most recently approved nomination within 90 days of their arrival in Australia.

    [1] SLI 238 of 2012 operational 24 November 2012; Migration Amendment (Temporary Sponsored Visas) Act 2013 operational 30 June 2013; SLI 145 of 2013 operational 1 July 2013; SLI 146 of 2013 operational 1 July 2013; SLI 30 of 2014 operational 22 March 2014; and, SLI 185 of 2015 operational 1 December 2015

17. The Tribunal discussed with Mr Xu condition 8107 and the characteristics of a direct employer-employee relationship.  These indicia are summarised in immigration policy as follows:

    ·engaging the employee in a contractual relationship;

    ·ability to appoint or dismiss the employee;

    ·providing the work environment including: place of work, tools, materials and equipment;

    ·setting work parameters including: allocating tasks to the employee, supervising the work of the employee, assessing and determining the output of the employee;

    ·paying the employee’s salary;

    ·complying with all relevant taxation obligations in relation to the employee including withholding PAYG taxation and paying this to the ATO in accordance with relevant legislation;

    ·providing conditions of service for the employee including: leave provisions, Occupational Health & Safety responsibilities;

    ·contributing to superannuation for the employee in accordance with relevant legislation;

    ·liability for WorkCover payments for the employee; and

    ·liabilities for the work conducted by the employee.

18. Mr Xu told the Tribunal that, although he had a contract of employment with Auyou, he was never employed by the company.  Rather, he was directed to different employers’ worksites by Kevin Xu.  Mr Xu said he was paid directly in cash by the multiple businesses who engaged him to undertake tiling work at their various construction sites around Sydney.  He then put the money totalling his wages, tax and superannuation as contemplated in his contract of employment with Auyou direct into Kevin Xu’s bank account.  He said the only indicia of the direct employer-employee relationship outlined above was that Kevin Xu sent him a PAYG Summary after 30 June.  Mr Xu’s representative provided the Tribunal with a copy of Mr Xu’s PAYG Summary for the year ended 30 June 2015 indicating Auyou had paid Mr Xu’s salary of $89,000 and withheld tax of $20,876. 

19. In his oral evidence to the Tribunal, Mr Xu admitted that, in breach of condition 8107(3)(a)(i), he has never worked in Australia as a Management Consultant.  Furthermore, he admitted to the Tribunal that, in breach of visa condition 8107(3)(a)(ii), he worked for multiple employers other than his sponsor Auyou.  The Tribunal discussed with Mr Xu that it appeared he had also breached condition 8107(3)(aa) which became effective 1 July 2013 in that he had not started work with Auyou within 90 days of arriving in Australia on 22 August 2012.  Mr Xu acknowledged this was the case although he indicated he was unaware that he was subject to that condition.

20. Based on evidence provided to the Tribunal, it appears that Auyou operated an on-hire business and hired out Mr Xu to work on various construction sites.  It also had him collect, on its behalf, payment for on-hiring his services as a tiler and then make those payments direct to Kevin Xu’s bank account.  In this regard, it would have been open for Auyou to apply to the Department for approval of a Labour Agreement to sponsor foreign workers for on-hire to unrelated businesses.  However, based on information in the Department’s file, Auyou was not a party to a Labour Agreement: rather, it was a standard business sponsor and, accordingly, consistent with its obligations as a standard business sponsor, it was obliged to ensure that Mr Xu worked directly for Auyou (or a related business) in the nominated occupation of Management Consultant.  There is no evidence before the Tribunal that any of the construction businesses with whom Mr Xu worked at the direction of Kevin Xu were related to Auyou.  In any event, based on Mr Xu’s evidence to the Tribunal, he has not been employed in Australia as a Management Consultant but, rather, as a Wall & Floor Tiler.

21. Mr Xu’s representative provided the Tribunal with extracts from the contract of employment lodged with the Department in support of Auyou’s nomination application for the occupation of Management Consultant. The contract provides that Mr Xu will be paid $89,000 per annum plus superannuation.  Having regard to Mr Xu’s evidence, the Tribunal is of the view that the direct employer-employee relationship between Auyou and Mr Xu came to an end shortly after he arrived in Australia when, inconsistent with the terms of that contract of employment, he went to work for other companies as a tiler and was paid in cash by them.  The Tribunal notes that the contract of employment made between Mr Xu and Auyou dated 27 June 2012 provides for termination of the contract on one week’s notice during the first 13 weeks of employment.  The Tribunal discussed with Mr Xu that it appeared he had not, as indicated in the delegate’s decision, stopped working for Auyou for more than 90 days because, on one view, it appeared that he had not ever worked with Auyou.  He agreed with the Tribunal.

22. In light of evidence provided, the Tribunal finds that although Mr Xu was approved to work in Australia in the occupation of Management Consultant he has worked as a Wall & Floor Tiler in breach of visa condition 8107(3)(a)(i).  The Tribunal also finds that condition 8107(3A) is not relevant in this case and, as Mr Xu has worked in Australia as for employers other than his sponsor Auyou, he has breached condition 8107(3)(a)(ii).  Additionally, the Tribunal finds that Mr Xu has breached condition 8107(3)(aa) by not starting work with Auyou in the nominated occupation of Management Consultant within 90 days of having arrived in Australia.  The Tribunal also finds that, by their conduct, Auyou has repudiated the contract of employment dated 27 June 2012 made with Mr Xu and, by his conduct Mr Xu has accepted that repudiation and elected to terminate the contract within days of his arrival in Australia in August 2012.  In the circumstances, the Tribunal finds that Mr Xu has breached condition 8107(3)(b) in that he ceased employment with his sponsor for more than 90 days.

23. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

24. 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 a visa. However, in considering whether to exercise its discretion to cancel Mr Xu’s visa, the Tribunal has had regard to the relevant circumstances of his case including, but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia

25. Mr Xu travelled to Australia as the holder of a Subclass 457 visa sponsored by Auyou.  His Subclass 457 visa was granted on 2 August 2012 for a period of 4 years expiring on 2 August 2016.  The delegate decided to cancel Mr Xu’s Subclass 457 visa on 1 August 2016, that is, the day before his visa expired. 

26. A Subclass 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce with highly skilled foreign workers.  As noted above, Auyou was an approved standard business sponsor and, accordingly, consistent with conditions attached to Mr Xu’s visa he should have worked directly for Auyou or a related corporation as a Management Consultant.  Based on evidence provided, the Tribunal finds the employment relationship with Auyou came to an end shortly after Mr Xu arrived in Australia when his sponsor referred him to work as a tiler at various construction sites around Sydney and Mr Xu followed, albeit reluctantly, Kevin Xu’s instructions.  Mr Xu acknowledged that Auyou has never employed him.  The Tribunal finds that the purpose of Mr Xu’s travel to and stay in Australia to work with Auyou (or a related company) as a Management Consultant came to an end shortly after he arrived in Australia more than 4 years ago.  In the Tribunal’s opinion, this weighs strongly in favour of cancellation of his visa.

    Extent of compliance with visa conditions

27. As noted above, Mr Xu has breached multiple conditions attached to his Subclass 457 visa over an extended period. 

28. Furthermore, it appears that Mr Xu and his family have continued to remain as unlawful non-citizens in Australia following cancellation of Mr Xu’s Subclass 457 visas.  The Tribunal notes that the delegate specifically makes reference in both the covering notification letter and the delegate’s decision (copies of which were provided to the Tribunal) that, upon cancellation of his visa, Mr Xu will become unlawful.  The notification letter expressly draws his attention to possible eligibility for grant of a Bridging visa to avoid possible detention and removal from Australia.  During the course of the hearing the Tribunal noted that, based on the Department’s Movement Records it appeared no Bridging E visas had yet been granted and the Tribunal encouraged Mr Xu to regularise his visa status, and that of his family.  His representative assured the Tribunal that he would take his clients to the Department’s office within 48 hours to assist Mr Xu and his family regularise their visas status in Australia and provide evidence of that to the Tribunal.  No such evidence has been provided.

1. In the view of the Tribunal, Mr Xu’s multiple breaches of conditions attached to his Subclass 457 visa and his apparent failure to regularise his visa status in Australia demonstrate a disregard for Australian immigration law.  This weighs strongly in favour of cancellation of his visa. 

   Degree of hardship that might be caused (financial, psychological, emotional or other hardship)

2. Mr Xu told the Tribunal that his daughter is currently studying in Australia and doing well.  He and his wife do not want to go back to China as his daughter has integrated into the Australian way of life and a forced return would traumatise her: she will lose her self-confidence.  He acknowledged for the Tribunal that he and his wife both have family back in China.

3. In addition, Mr Xu told the Tribunal that his wife has been nominated by an approved sponsor for the occupation of Wall & Floor Tiler.  Evidence of lodgement of the nomination was provided to the Tribunal.  Mr Xu also told the Tribunal that he has now become a master tiler himself and that many companies would love to offer him a job. 

4. After 4 years in Australia, the Tribunal accepts that there may be some adjustments for the family to reintegrate to life in China.  However, the Tribunal is nevertheless of the view that any such hardship would not be significant given the qualifications and experience that both Mr Xu and his wife had gained in Australia.  Mr Xu could also resume his occupation of Management Consultant with the benefit of the cross-cultural experiences of having worked in Australia for 4 years.  The Tribunal does not consider that any detriment as outlined by Mr Xu amounts to a level of hardship such that it would weigh in favour of not cancelling his visa.

   Circumstances in which the ground of cancellation arose

5. As noted above, the delegate cancelled Mr Xu’s Subclass 457 visa on the basis that his employment with his sponsor Auyou ceased on 3 March 2016, that is, for more than 90 days.  However, the Tribunal has formed the opinion that his employment relationship with Auyou was terminated within a matter of days after Mr Xu’s arrival in Australia: it was terminated by conduct of the parties inconsistent with their contract of employment dated 27 June 2012.  The Tribunal has also found that Mr Xu breached the condition requiring him to work only in his nominated occupation of Management Consultant and only for his sponsor Auyou, or a related entity.  Mr Xu told the Tribunal that he only went once to see Kevin Xu, a Director of Auyou and also his registered migration agent.  He was given Kevin Xu’s bank account details and told he would be rostered to work at various construction sites. 

6. When asked by the Tribunal whether he had looked for work as a Management Consultant with other companies Mr Xu said that he did not know about this option initially but later looked on seek.com.  However, nothing came of his efforts in this regard.  He also told the Tribunal that he did not seek advice from any other immigration advisers until November 2015 (when he was experiencing financial difficulties and could not meet Kevin Xu’s demands for money to be paid into Kevin Xu’s bank account) but, rather, just relied on Kevin Xu.  He did so because Kevin Xu was the registered migration agent who assisted him secure his Subclass 457 visa.  Mr Xu also told the Tribunal that he did not seek advice from employment lawyers, the Department or the Fair Work Ombudsman (FWO) because Kevin Xu threatened him with cancellation of his visa if he did not continue to work at his direction and then pay money into Kevin Xu’s bank account.  Mr Xu told the Tribunal he was frightened of Kevin Xu and did just what he said because Kevin Xu was a lawyer.  He showed the Tribunal a business card in which Kevin Xu indicates he is a Migration Agent with Auschn Legal & Associates based in Bathurst Street, Sydney.  The card quotes his registered migration agent number.  Mr Xu also provided another business card of Kevin Xu indicating he is the Marketing Manager with Auyou.  The Tribunal examined the website of the NSW Law Society and confirmed for Mr Xu that: first, there is no law firm called Auschn Legal & Associates in New South Wales; and second, Kevin Xu is not a lawyer registered to practice law in New South Wales.  The Tribunal examined the website for the Office of Migration Agent Registration Authority and confirmed records on that site of a registered migration agent with the surname Xu having the RMA number quoted on Auschn Legal & Associates’ business card and with an email address incorporating the name Kevin Xu.  It is the same email address on Mr Xu’s Subclass 457 visa approval notification of 2 August 2012 provided to the Tribunal by his representative.  Mr Xu told the Tribunal he is currently seeking legal advice to initiate legal action against Kevin Xu for embezzling and extorting over $200,000 based on threats received from Kevin Xu to either pay Kevin Xu money or have his Subclass 457 visa cancelled.

7. In her independent evidence to the Tribunal, Mrs Zhang echoed the evidence of her husband.  She said that, in the beginning when they arrived in Australia, Kevin Xu asked them to be tilers and, when they asked about other work, they were told they had to do tiling if they didn’t want to go back to China.  Mrs Zhang added that she and her husband felt dominated by Kevin Xu such that they felt they could not do anything unless he said it was okay and, as a result, they did not report him to the Department.  She said they were afraid of Kevin Xu.  Mrs Zhang also confirmed her husband’s evidence to the Tribunal that it was only recently that they discovered they could seek alternative employers to take over sponsorship their Subclass 457 visas.  In relation to Mr Xu’s failure to seek advice from the Department or the FWO including reading their websites, both of which the Tribunal noted contain information in Mandarin, Mrs Zhang said she and a husband worked from 5:00 am to 5:00 pm and so did not have time to pursue this. 

8. Immigration policy states that, relevantly, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.  It is the Tribunal’s view that Mr Xu’s failure to explore and pursue appropriate advice from migration advisers, workplace lawyers, the Department and/or the FWO weighs in favour of cancelling his visa.  If, as claimed, Mr Xu has training and qualifications as a Management Consultant, the Tribunal is of the view that he would have had a sufficient level of education and professional experience to be aware of the need for appropriate professional advice in circumstances where he had signed a contract of employment to work in Australia as a Management Consultant and yet, upon his arrival in Australia, was sent to work as a tiler at various construction sites.

   Past and present conduct of the visa holder towards the Department

9. As noted above, Mr Xu did not advise the Department that he did not commence employment with Auyou.  Nor did he contact the Department when he was asked to work in an occupation other than his approved nominated occupation or for employers other than his sponsor.  Furthermore, although he engaged his current representative to assist with the NOICC received from the Department he did not respond to the Department’s request for information in response to the NOICC: rather, his representative merely requested documentation from the Department which it did not have, such as payslips from his sponsor.

10. The Tribunal asked Mr Xu about his work experience in China before arriving in Australia.  He said he had worked as a Management Consultant.  Asked whether he sought legal advice, complained to the Department or sought advice from the FWO regarding Auyou’s termination of his contract of employment and on-hiring him to work with other unrelated businesses Mr Xu said he did not.  He also told the Tribunal that he did not consider seeking a new employer prepared to take over sponsorship of his Subclass 457 visa so that he could continue to work in Australia as a Management Consultant as he was unaware, at the time, this could happen.  In relation to being told to work as a tiler from the time of his arrival he said that he did not seek professional advice until November 2015 when Kevin Xu threatened to have his visa cancelled.  This was more than 3 years after arriving in Australia.  His adviser told him that the arrangement with Auyou was illegal and that he could report the company to the Department but, by doing so, that would lead to Auyou being sanctioned and, as a result, he would lose his Subclass 457 visa.  Mr Xu said that, in the circumstances, he did not report Auyou to the Department. 

11. In the opinion of the Tribunal, Mr Xu’s immigration history in Australia indicates that, despite receiving notification of the conditions attached to his Subclass 457 visa when his visa was granted, he has been totally disrespectful of Australian immigration law.  His conduct suggests to the Tribunal that he may have been complicit in, or perhaps have even wilfully co-operated with, Auyou in breaching immigration law and thereby facilitated his temporary residence in Australia for 4 years.  Mr Xu’s failure to report Auyou’s conduct to the Department and seek appropriate professional advice shortly after his arrival in Australia as well as his failure to action advice from his registered migration agent in November 2015 regarding Kevin Xu’s threats indicates to the Tribunal that Mr Xu is disrespectful of Australian immigration law.  Furthermore, his failure after the hearing to provide the Tribunal with evidence that he has regularised his visa status in Australia by obtaining Bridging E visas for himself and his family - despite his representative undertaking to the Tribunal that this would be done within 48 hours – raises doubts in the mind of the Tribunal about his intention to depart Australia. 

12. The Tribunal gives significant weight to these considerations in considering whether Mr Xu’s Subclass 457 visas should be cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

13. As noted above, Mr Xu told the Tribunal that cancellation of his Subclass 457 would cause hardship to his wife and 6 year old daughter.  The Tribunal also notes that his wife has been nominated by an approved sponsor in the occupation of Wall & Floor Tiler and that the application is still pending.      

14. While the Tribunal accepts that Mrs Zhang and her daughter would experience some hardship if they leave Australia, it is nonetheless of the view that this hardship would not be significant given the qualifications and employment experience Mrs Zhang has gained in Australia and the fact that she and Mr Xu have family in China.

    Whether cancellation would result in mandatory legal consequences, for example, cancellation would result in the visa holder being unlawful and subjected detention and whether indefinite detention is a possible consequence

15. Cancellation of Mr Xu’s Subclass 457 visa by the delegate resulted in him and his family becoming unlawful non-citizens in Australia.  When the delegate informed Mr Xu of the cancellation of his Subclass 457 visa on 1 August 2016 the delegate also advised him of the effect of the cancellation and the need for Mr Xu and family members to regularise their visa status in Australia by obtaining Bridging visas.  At the hearing, the Tribunal noted that, based on the Department’s Movement Records, it appeared no Bridging E visas had yet been granted.  Mr Xu’s representative assured the Tribunal that he would assist his clients obtain Bridging E visas within 48 hours.  No evidence has been provided to the Tribunal that Mr Xu and his family have obtained Bridging E visas.

16. The Tribunal accepts that, if it affirms the delegate’s cancellation of Mr Xu’s Subclass 457 visa, he and his family will be affected by s.48 of the Act and they will be prevented, with limited exceptions, from lodging a further substantive visa application onshore. This would preclude Mrs Zhang applying on-shore for a Subclass 457 visa in anticipation of approval of Ant Tiling’s nomination application lodged with the Department. The Tribunal also accepts that, if Mr Xu’s Subclass 457 visa is cancelled, he and his family would be adversely affected by Public Interest Criterion (PIC) 4014 and may not be able to return to Australia for up to 3 years unless they can demonstrate that there are compelling circumstances that affect the interests of Australia.  The impact of PIC 4014 arises because Mr Xu and his family did not apply for Bridging E visas within 28 days of cancellation of their Subclass 457 visas on 1 August 2016.  When the Tribunal discussed with Mr Xu at the hearing he said a 3 year ban would be a big strike to him and his family.  Mr Xu’s failure to obtain Bridging E visas for himself and his family within 28 days of cancellation his Subclass 457 visa was despite his then having the benefit of advice from his current representative who, as evidenced by documentation lodged with the Tribunal, he has engaged since November 2015.

    Whether any international obligations would be breached

17. There is nothing to suggest that any international obligations would be breached as a result of cancellation of Mr Xu’s Subclass 457 Visa.  Neither Mr Xu nor his representative made any submissions in this regard. 

18. Considering the circumstances in Mr Xu’s case, individually and cumulatively, the Tribunal concludes that his visa should be cancelled.

    DECISION

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

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

    Katie Malyon

    
    Member

    Annexure A
    
    

    Extracts from the Migration Act 1958
    
    s.116 Power to cancel
    
    

    (1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    (a)  the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

    (aa)  the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

    (b)  its holder has not complied with a condition of the visa; or

    (c)  another person required to comply with a condition of the visa has not complied with that condition; or

    (d)  if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

    (e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or

    (ii)  the health or safety of an individual or individuals; or

    (f)  the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

    (fa)  in the case of a student visa:

    (i)  its holder is not, or is likely not to be, a genuine student; or

    (ii)  its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

    (g)  a prescribed ground for cancelling a visa applies to the holder.
    
    

    (1AA)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity.
    
    

    (1AB)  Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:

    (a)  incorrect information was given, by or on behalf of the person who holds the current visa, to:

    (i)  an officer; or

    (ii)  an authorised system; or

    (iii)  the Minister; or

    (iv)  any other person, or a tribunal, performing a function or purpose under this Act; or

    (v)  any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and

    (b)  the incorrect information was taken into account in, or in connection with, making:

    (i)  a decision that enabled the person to make a valid application for a visa; or

    (ii)  a decision to grant a visa to the person; and

    (c)  the giving of the incorrect information is not covered by Subdivision C.

    This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.
    
    

    (1A)  The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
    
    

    (2)  The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) if there exist prescribed circumstances in which a visa is not to be cancelled.
    
    

    (3)  If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

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    Annexure B – Extracts from the Migration Regulations 1994

    Schedule 8 - Visa Conditions
    
    

    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.
    
    

    (2)  If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)  cease to undertake the activity in relation to which the visa was granted; or

    (b)  engage in an activity inconsistent with the activity in relation to which the visa was granted; or

    (c)  engage in work for another person or on the holder's own account inconsistent with the activity 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:

    (A)  must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (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

    (C)  if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside 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; and

    (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:

    (a)  if the nomination was made before 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    (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); or

    (b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.
    
    

    (3B)  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(8):

    (a)  the holder must work only in the occupation or position in relation to which the visa was granted; and

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

    
    (4)  If the visa is:

    (a)  a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or

    (b)  a Subclass 402 (Training and Research) visa; or

    (ba)  a Subclass 420 (Temporary Work (Entertainment)) visa;

    the holder must not:

    (c)  cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or

    (d)  engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or

    (e)  engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.

    …

    8501  The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

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