1901301 (Migration)

[2019] AATA 3285

1901301 (Migration) [2019] AATA 3285 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901301

MEMBER:Lilly Mojsin

DATE:6 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 06 June 2019 at 1:32pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – never notified of dismissal – sponsor’s unconscionable conduct – beyond the applicant’s control – purpose of visa grant – Bricklayer – area of labour shortage – exclusion period – degree of hardship – large debt to repay – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Babicci v MIMIA [2005] FCAFC 77
MZYPZ v MIAC [2012] FCA 478
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 January 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the first named applicant's Subclass 457 visa under s.116(1)(b) on the basis that the applicant had breached condition 8107.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the application for review.

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

5. 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 the first named 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 with respect to the second named applicant.

6. The applicants appeared before the Tribunal on 4 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 review, 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. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(b) attached to the applicant’s visa. This condition requires that if the holder ceases employment, the period during which the holder ceased employment does not exceed 60 consecutive days.

9. The standard business sponsor who nominated the applicant, in the most recently approved nomination for the visa, was [Company 1] (the sponsor) whose nomination was approved on 24 May 2017 for the applicant to work for the sponsor in the occupation of Bricklayer (ANZSCO code: 331111).

10. The Department stated in its decision that on 16 August 2018 it had received written notification from the former sponsor that the applicant had ceased employment with them from 30 June 2018. The sponsor stated to the Department that it tried to persuade all employees to comply with their obligations. The sponsor said that it had refused to provide cash payment to all employees. All employees refused to keep continuing to work and the sponsor decided to cancel all contracts with them.

11. There is no record on Departmental systems that the applicant been granted another substantive visa with the effect of ceasing and replacing the 457 visa. The delegate of the Department found that the applicant had not complied with cl. 8107(3)(b) of condition 8107 attached to the visa and proceeded to cancel the visa.

    REASONS AND FINDINGS

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.

13. In this instance condition 8107 was attached to the applicant's visa, which was granted on 25 May 2017, and which, but for its cancellation, was valid to 25 May 2021. The Tribunal has considered the wording of condition 8107 as at the date of visa grant.

14. Condition 8107 states:

    8107 3(b) if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 60 consecutive days

15. In relation to the holder of a Subclass 457 visa granted on the basis of being sponsored by a standard business sponsor, condition 8107 required that the holder must work only in a position in the business of the standard business sponsor or an associated entity of the sponsor (subject to limited exceptions): condition 8107(3)(ii)(B). If the holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

16. The information before the Tribunal indicates that the applicant ceased employment with [Company 1], the employer and standard business sponsor, on 30 June 2018. At the Tribunal hearing, the applicant disputed that he ceased employment with his former sponsor. He stated that he had not been dismissed but that he had been told to stay at home and wait to be advised about work.

17. The Tribunal finds on the basis of the material before it, that the applicant ceased employment with his standard business sponsor, [Company 1], on 30 June 2018. The evidence before the Tribunal is that the applicant did not work at all after that date. The Tribunal finds that the applicant did not commence employment with the same standard business sponsor or a new standard business sponsor within a period of 60 consecutive days after employment with his sponsor had ceased.

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

    Consideration of discretion

19. As the applicant has not complied with condition 8107(3) of his Subclass 457 visa 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 visa should be cancelled.

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this review, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

21. In regard to the purpose of the applicant’s travel to and stay in Australia, the applicant arrived in Australia. He was granted the visa for the purpose of being able to fill a skill shortage and work in Australia for an approved sponsor in a skilled occupation for which he was specifically nominated to work. He was employed as a bricklayer. There is no evidence before the Tribunal to suggest that the applicant made an application to the Department for a change of sponsor and the applicant did not suggest that he made such an application. As the purpose of the applicant’s travel and stay in Australia ended on 30 June 2018 which is the date that the applicant ceased employment with his sponsor, the Tribunal places weight on this factor in favour of cancellation.

22. The expression 'compelling reasons' is not defined for the purposes of PAM3. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA [2005] FCAFC 77 at [24].

23. In regard to having a compelling need to travel to and remain in Australia, the evidence before the Tribunal is that the applicant’s wife is with him in Australia.  The applicant’s wife has a job in Australia. Their children have returned to China. There is no evidence before the Tribunal to suggest that the applicant had a compelling reason to travel to Australia. The Tribunal is mindful that cancellation would cause the applicant’s family to be ineligible to remain in Australia and is mindful that the applicant’s wife would no longer be able to work. As the applicant’s visa was a temporary visa, the Tribunal is not satisfied that these are compelling reasons for the applicant to remain in Australia. The Tribunal places weight on this factor in favour of cancellation.

24. The Department stated in its decision that there is no adverse information known to it about the applicant, and the Tribunal has no information before it to suggest that there is any adverse information known about the applicant. The applicant did not respond to a Notice of Intention to Cancel the Visa sent to the applicant.  The Tribunal gives weight to this factor in favour of cancellation of the visa.

25. In regard to the circumstances surrounding the breach of the visa condition, at the Tribunal hearing the applicant stated that he arrived in Australia [in] June 2017. He went to work for his sponsor and a Chinese agent rented him a house and picked him up and sent him to work. He did not understand the whereabouts of the company. Everything was organised by the agent, [Mr A]. He worked sometimes 2 or 3 or 5 days but seldom did he work 5 days. He was paid via bank transfer on a weekly basis.  He stopped working as he was asked to wait. This occurred at the beginning of 2018 and lasted for a few months. He was told that the company did not have any work and he was told to stay at home and wait. They were able to support themselves as his wife was doing odd jobs. He was working in other places doing odd jobs. He thought the company would ask him to go back to work and he was afraid of looking for jobs elsewhere. He does not understand English and can only read if he gets a friend to check.

26. The applicant said he did not get a termination letter from his employer. Asked if he received a PAYE document at the end of 2017-2018 he said that he did not but [Mr A], the agent, has told him he put in a tax return lodgement for him. Asked when he lodged the return he said it was in July 2018.  He said everything is done through [Mr A]. Asked when [Mr A] told him there was no more work he said that it seems it was in June 2018 when he did not pick him up. He knows that in 2018 he did not have any more work. 

27. The applicant also advised the Tribunal that when he came to Australia he had borrowed 500000 rmb with high interest in order to be sponsored by an employer. He was told that if he worked he could earn $90000-100000 pa. When he came he discovered that he could not achieve his goal. He has been here less than 2 years and the money borrowed has not been paid back. He has 2 daughters and both went back to China. One is [age], the younger one is [age]. They could not earn enough money to support their children and also to pay tuition for their schooling. The Company did not give him long term work. He said that he could not go back to China as they owe people money and if he goes back he cannot pay the money and they will approach him.

28. The Tribunal accepts that the applicant does not speak or read English and that the applicant dealt with his sponsor via an agent, [Mr A]. The Tribunal accepts that the applicant was afraid to look for jobs elsewhere and he waited at home. The Tribunal notes that the sponsor continues to hold a registered ABN. The information in the Department file indicates that the sponsor contacted the Department and stated that it had terminated a number of employees because they only wanted to work for cash. The Tribunal finds it implausible that a number of employees would all seek to only work for cash, especially where they had been sponsored to Australia and were aware that their visa gave them work opportunities. As the sponsor’s letterhead does not have an office address and only a mobile number, the Tribunal is satisfied that the applicant was not able to contact the employer and the Tribunal is satisfied that the applicant received no correspondence from his sponsor that his position was terminated. The Tribunal also accepts as plausible that the applicant did not report the employer to Fair Work Australia, in light of the applicant’s inability to speak and read English.   The Tribunal places great weight on these factors against cancellation of the visa.

29. In assessing the degree of hardship that may be caused (financial, psychological, emotional or other hardship) the Tribunal accepts that the applicant’s wife would lose her job if the visa was cancelled and that on return to China the applicant and his spouse may not be able to find work in order to support their children and themselves. The Tribunal accepts that the applicant has a large debt to repay. The Tribunal places weight on these factors against cancelling the visa.

30. There are persons in Australia whose visas would, or may, be cancelled under s140, the applicant’s wife. Therefore any cancellation of the applicant’s visa will result in the automatic consequential cancellation of the visa of another person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. As the applicant and his wife arrived in Australia together and as the applicant’s evidence to the Tribunal is that if the visa is cancelled they will return together, on the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

31. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. On the evidence before it the Tribunal weighs this factor against cancelling the visa. This is because the Tribunal is satisfied that the behaviour of the applicant’s sponsor toward the applicant was unconscionable, not lawfully dismissing the applicant and providing the Department with an implausible explanation regarding circumstances of dismissal of its employees.  Therefore the Tribunal is satisfied that the breach of condition 8107 was beyond the control of the applicant, at the time it occurred.

32. The Tribunal accepts that the applicant wishes to remain in Australia and obtain work in skilled employment where there is a labour shortage, as a Bricklayer. This is the purpose for which the Subclass 457 visa was granted. The Tribunal also notes the occupation is on the revised skilled occupations list that came into effect on 19 April 2017 and notes Bricklayer is listed in Schedule 1: Medium and Long-term strategic skills list. To cancel the applicant’s visa would result in the applicant being subject to a three-year exclusion period. As the breach of condition 8107 was beyond the applicant’s control and as the applicant wishes to obtain work as a Bricklayer and as cancellation would result in an exclusion period, the Tribunal gives this factor weight against cancelling the visa.

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

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

35. The Tribunal has no jurisdiction with respect to the second named applicant.

    Lilly Mojsin
    Member