1901921 (Migration)

[2019] AATA 3286

1901921 (Migration) [2019] AATA 3286 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901921

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 and third named applicants.

Statement made on 06 June 2019 at 1:52pm

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 – currently employed – 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 18 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. The issue in the present review is whether that 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 the first named applicant. The other applicants' visas were 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 those other visas 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 them.

4. 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

5. 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.

6. 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 ceases employment is not exceed 90 consecutive days.

7. The applicant was granted a Subclass 457 on 26 July 2016 on the basis of being sponsored by a standard business sponsor under r.457.223(4). Had the visa not been cancelled, the visa would have ceased on 26 July 2020. The applicant’s sponsor for this visa was [Company 1] and the nominated position was for a bricklayer. The applicant's spouse and 2 children were also granted Subclass 457 visas on the basis of being members of the applicant's family unit.

8. On 4 August 2018 the Department received written notification from the former sponsor that the applicant had ceased employment with them from 30 June 2018. The sponsor stated that it tried to persuade all employees to comply with their obligations. The sponsor said that the sponsor 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.

9. On 13 December 2018 the Department sent the applicant a Notice of Intention to Consider Cancellation stating his visa may be cancelled under section 116(1)(b) of the Act as he may have breached condition 8107. The applicant was invited to comment on why his visa should not be cancelled.

10. The applicant provided a response on 7 January 2019. The applicant advised that he had never received any formal letter of dismissal from his employer, who had just told him to stay at home temporarily due to construction industry depression and to wait for a call if there is a new job. He has found a new job in Perth through one of his friends and the new employer submitted a new nomination. Also a few other employers in Sydney would like to hire him but they need some time to prepare all the necessary documents. The reason why there is a gap in his employment is that he did not know that the previous employer dismissed him and he waited for several months out of loyalty. The applicant opined that if the visa was cancelled his children who are studying in Australia would have to go back to China and would not be able to get back into school in a short period of time due to their studentship having been cancelled. This will have a negative impact on their life in the future.

11. On 18 January 2019, the delegate made a decision to cancel the applicant's Subclass 457 visa under paragraph 116(1)(b) of the Act. The delegate considered that the applicant had breached condition 8107(3)(b) by ceasing employment for a period exceeding 90 consecutive days. The delegate found that the reasons for cancelling the visa outweighed the reasons not to cancel.

    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 26 July 2016, and which, but for its cancellation, was valid to 26 July 2020. The Tribunal has considered the wording of condition 8107 as at the date of visa grant. 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 90 consecutive days.

14. 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 hearing, the applicant disputed that he ceased employment with his former sponsor as 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. 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 applicant acknowledges that he did not work at all. 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 90 consecutive days after employment with his sponsor had ceased.

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

    Consideration of discretion

16. 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.

17. 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’.

18. 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 in and which could not be filled from within the Australian workforce. He was employed as a bricklayer. The purpose of the applicant’s stay ended on 30 June 2018 which is the date that the applicant ceased employment with the sponsor. As the purpose of the applicant’s travel to and stay in Australia ceased in June 2018 the Tribunal places weight on this factor in favour of cancellation.

19. 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].

20. There is no information before the Tribunal to suggest that the applicant had a compelling need to travel to Australia. In regard to having a compelling need to remain in Australia, the applicant’s wife is with him in Australia and his children are studying in Australia.  The Tribunal is mindful that cancellation would cause the applicant’s family to be ineligible to remain in Australia but the Tribunal is not satisfied that these are circumstances that are compelling reasons for the applicant to remain in Australia. The Tribunal places weight on this factor in favour of cancellation.

21. There is no evidence to suggest that the applicant breached any other conditions of his visa. The Tribunal accepts that the applicant has always been compliant with other visa conditions. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

22. In regard to the circumstances surrounding the breach of the visa condition, at the Tribunal hearing the applicant stated that he was told to stay at home and wait to be called for the next job. The Tribunal does not accept the explanation by the employer/sponsor that the reason for the applicant’s dismissal and also the dismissal of other employees was because the applicant would only accept cash as payment for salary. The applicant came to Australia as the holder of a visa allowing him to work legally. Further when asked why he did not contact his sponsor after waiting a few weeks, he said that the employer had no office, he was only ever contacted by telephone on a Sunday and given the address for a work site to attend on Monday morning.  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 he was dismissed. His evidence to the Tribunal is that he is now employed, with [Company 2], whilst holding a bridging visa. The Tribunal accepts that the applicant was never notified of dismissal and only became aware of his circumstances when he received correspondence from the Department. The Tribunal places weight on this factor in favour of not cancelling the visa.

23. In regard to the degree of hardship that may be caused to the applicant or his family members, the Tribunal accepts that there will be some hardship to the applicant and the applicant’s family if the visa were to be cancelled. The applicant’s wife will be unable to work. But the circumstance of having to return to his home country after being in Australia on a temporary visa is not a unique or exceptional one. At present the applicant’s wife works in a [workplace]. He has 1 child, [age] years of age.  His son is looking for a [specified] course.  He has 4 older people that need to be supported in China. They borrowed a lot of money to come and work in Australia and his son needs an education. He needs this job. He needs to support his elderly family. Before he came to Australia he worked as a bricklayer in China. He borrowed more than 500000rmb, from an agent, to obtain sponsorship.  He now earns $2000 per week. The Tribunal gives weight to this factor against cancelling the visa.

24. 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.  

25. In assessing whether any cancellation of the applicant’s visa will result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act, there are persons in Australia whose visas would, or may, be cancelled under s140, the applicant’s wife and child. The cancellation will not cause a separation of the family unit as the applicant’s child will have his visa status aligned with his parents. The applicant’s child will be able to return to China with the family or alternatively, he will be able to apply for a visa in his own right, should he wish to remain in Australia to continue his study.

26. 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.

27. The Tribunal has considered the applicant's purpose for remaining in Australia. As the subject of an approved nomination the Tribunal accepts that the applicant wishes to remain in Australia to 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 applicant now works for [Company 2] as the holder of a bridging visa that allows him to work. 

28. The Tribunal also notes the occupation Bricklayer 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. As the breach of condition 8107 was beyond the applicant’s control and as the applicant wishes to work as a Bricklayer and as cancellation would result in an exclusion period, the Tribunal gives this factor weight against cancelling the visa.

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

    DECISION

30. 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.

31. The Tribunal has no jurisdiction with respect to the second named and third named applicants.

    Lilly Mojsin
    Member