Chen (Migration)

[2019] AATA 6299

Chen (Migration) [2019] AATA 6299 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Changwei Chen
Mr YONGLI LI

CASE NUMBER:  1722518

HOME AFFAIRS REFERENCE(S):          BCC2017/2249858

MEMBER:Danielle Galvin

DATE:9 September 2019

PLACE OF DECISION:  Melbourne

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

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

Statement made on 09 September 2019 at 11:08am

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – Importer and Exporter –applicant has always worked in nominated role for sponsor – break was for maternity leave – sufficient evidence provided – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116,140, 348

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 15 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) 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 the first named applicant, did not meet the requirements of paragragh (3)(a)(i) of condition 8107. The delegate found that there was insufficient evidence to support the position that the first named applicant had been working in the nominated occupation of Importer and Exporter (ANZSCO CODE 133311).

3. The department documents provided to the Tribunal included:

   ·Fumigation certificates dated 1/6/17,26/5/17;

   ·Packing declaration 31/5/17;

   ·Bill of lading 29/5/17;

   ·Commercial invoice noting applicant as contact for Abesta International Pty Ltd (Abesta) dated 23/5/17;

   ·Statement of Zemin Hu, sole director of the sponsor, dated 6/2/17 stating that applicant was employed as importer and exporter for Abesta since December 2014 and lists her duties;

   ·Abesta financial statement FYE 30/6/15;

   ·Certificate of registration of Abesta;

   ·BAS for Abesta  for Jan-Mar 2016;

   ·Australian Business Register for Spare Change;

   ·Statutory declaration of Ze Ming Hu, the sole director of the sponsor, dated 19/8/ (no year stated ) declaring that he had delegated to Mr Fusheng Gui , a consultant, to role to oversee the business in his absence. He declared that the applicant had taken leave on 22 February 2017. He further declared that Mr Gui was not an employee and was not therefore able to provide details when interviewed on 22 February 2017.;

   ·Statutory declaration of Fusheng Gui declared 21/8/17 declaring that he was not aware of what documents he was required to produce when interviewed by the Department  and believed that he was misunderstood as he knew that the applicant was on leave in China having had a baby;

   ·Letter from the applicant to the Department dated 18 August 2017 confirming her role and that she took maternity leave and travelled to China.

4. The issue in the present case 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. On 20 November2018 the Tribunal wrote to the applicant at the address provided inviting them to comment on and respond to information relied on by the department in making their decision that departmental records indicated that the applicant had not worked in the occupation of Importer or Exporter in the approved nomination of Abesta as at 15 September 2017.

7. On 3 December 2018 the agent for the applicant responded to the request and forwarded to the Tribunal various documents. Further documentation was also submitted including material following the hearing. The Tribunal therefore had access to the following documents:

   ·Submission of agent dated 3/12/18 in which the agent argues that there is no basis for the cancellation of the 457 visas as the applicant has always worked in nominated role for sponsor. The history provided was that the company has various businesses which sell products that the company imports. The applicant works from one of the businesses’ stores in Thomastown. The agent notes that the applicant was absent on full pay from November 2016-March 2017 following the birth of a child. The agent notes that the 457 visas were granted on 7/11/14. The applicant applied for 186 visas (temporary residence) however the department refused the nomination of Abesta on 28/7/19 and then cancelled the 457 visas on the basis that the applicant was not working in the nominated role. The agent also advised that the applicant is referred to as Velyn. The submission also attached a bundle of stock reports signed by Velyn and dated 8/3/17, 30/9/16, 11/5/17 and 29/8/16;

   ·Bundle of incoming goods lists -no indication of involvement of applicant;

   ·Internal Email dated 7/4/16 from Daisy  of spare change to Thomastown spare change addressed to Winnie and Velyn requesting a stock check;

   ·Internal email dated 19/9/16 from Daisy to Velyn to check missing stock;

   ·Email from Oskar design to Thomastown store dated 15/3/16-no mention of applicant;

   ·Internal email dated, from Daisy, 19/9/16 addressed to Velynasking to check stock;

   ·Internal email from Daisy addressed to Verlyn requesting a stock check;

   ·Meeting report dated 19 April 2016, 17/4/17 including Velyn re internal matters re stock and clients;

   ·Internal email dated 24/8/16 attaching stock list;

   ·Internal email dated 23/4/16, no mention of applicant;

   ·internal email dated 15/9/16 addressed to Velyn re products list;

   ·Internal email dated 21/9/16 re stock take addressed to Velyn

   ·Email to Vylin re electrical stock;

   ·Internal email from Daisy dayed 19/9/16 to Velyn to check stock list;

   ·Internal email dated 20/9/16 re stock list;

   ·Internal email to Janice dated 25/5/17 from Velyn re stock;

   ·APL Co. Pty Ltd pro forma delivery form;

   ·Internal email from Velyn dated 7 June 2017 re stock;

   ·Internal email from Velyn dated 29/5/17 re stock;

   ·Abesta International Pty Ltd electronic import delivery order dated 7/6/17 signed by Chanwei Chen as importer or exporter;

   ·Emails to Velyn from Fabian Mazzaferro dated 6 June 2017 and 9/6/17 re faulty goods;

   ·Internal email dated 8/6/17 from Velyn re stock;

   ·Email from Velyn to logefreight dayted 13/6/17 re customs charges;

   ·Packing list addressed to Changwei Chen re mattresses from China dated 23/5/17;

   ·Email from Nana Zheng to Velyn dated 21/7/17 re mattresses; 29/8/17 re new order;23/7/17 re mattresses

   ·Internal email dated 26/4/17 from Velyn re faulty electricals;

   ·Internal email dated 27/4/17 from  Velyn re faulty items;

   ·Internal email from Velyn dated 4/5/17 re mattress stocktake;

   ·Payment adjustment forms;

   ·Email from Service AU to Velyn re flatscreen  wall mounting dated 19/4/17;

   ·Emaill from C.d.Crruz to Velyn dated 15/9/17 re faulty frodge;

   ·Autralian Business Register for Abesta International Pty Ltd;

   ·AAbesta International Pty ltd Special Purpose Financial Report FYE 30/6/16;

   ·letter from Abesta dated 6 February 2017 confirming that the applicant has been employed as an importer and exporter since December 2014 listing duties that coincide with ANZSCO Code description;

   ·Sponsor’s tax invoice for training from Empire Institute of Education;

   ·Resume of applicant claiming a history of exporting and sales manager;

   ·Letter dated 18/9/17 from Thomastown West primary school confirming enrolment of applicant’s daughter;

   ·Submission from the applicant’s agent dated 16 April 2019 stating that, “In the last year the Abesta group has undergone significant changes to the effect that Ms Chen no longer works for Abesta. Indeed I have been unable to reach the director Mr Zemin Hu. Accordingly, I accept that the nomination application and Subclass 186 application no longer have any meaningful prospects of success.         However, in respect of the Subclass 457 cancellation, I submit that Ms Chen was at all relevant times employed and working in the nominated position in accordance with her Subclass 457 visa conditions.   As such, it is my contention that no ground has been established to cancel the Subclass 457 visa.     Ms Chen wishes to pursue this matter because she wishes the cancellation record to be expunged from her record.”

   ·The submission states that the applicant complied with condition 8107(3) of her visa and that the person spoken to by the Department on 22 February 2017 was not able or informed about the operations of the business in Thomastown even though he worked for an associated entity. The attached and referred to documents are submitted to evidence that the applicant worked for Abesta throughout 2016 and 2017 and that the applicant did not cease work despite her break from work following the birth of her baby. The agent refers to the demise of Abesta in the submission.

   ·However, an ASIC company search submitted, as at 23 April 2019, states that the company is registered and that Mr Hu is both sole director and Shareholder and that proceedings to wind up the company were withdrawn on 10 April 2019.

   ·Submission made by agent dated 11 June 2019 attaching various documents in relation to payments to the applicant;

   ·ABN Lookup extract as at 2/7/19 noting that Abesta is not registered for GST;

   ·Bundle of applicant’s Australian Super superannuation statements for 1/7/14-30/6/15 naming Spare Change as employer contributor; 30/6/17, 31/12/15, 30/6/16, 1/7/17-30/6/18

   ·Applicant statement dated 1 July 2019 stating that she commenced work at Abesta in December 2014 and performed the role of importer

   ·PAYG payment summary 1/7/17-30/6/18 re payments from Abesta stating gross payments of $30,660; 1/7/16-30/6/17 stating gross payments of $56,367,

8. The applicant appeared before the Tribunal on 11 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The applicants were represented in relation to the review by their registered migration agent.

10. Ms Chen stated that she arrived in Australia in December 2014 and worked for Abesta in the Footscray site and then moved to the whare-house site in Thomastown. Ms Chen described her role as one involving selection of stock, stocktaking, running the shop on site and ordering of stock. She stated that she would give instructions for what needed to be shipped and signed bills of lading but that she was not involved with the freight company, APL. She advised that she dealt with customer feedback. The applicant advised that her child was born in November 2016 and on 18 February 2017 she went to China for a break.. She returned to work on 6 March 2017 and continued to do so until her visa was cancelled. The applicant stated that Mr Gui was a consultant and the Department spoke to him whilst she was away. She stated that he would not have known about her circumstances.

11. The Department had, on 15 August 2017, sent a notice of intention to cancel the applicant’s visa stating that it appeared that the applicant had not complied with condition 8107 of her visa. The Department relied on the fact that Abesta had not provided evidence that the applicant was working on 22 February 2017, when officers attended the site, nor was evidence confirming that leave had been taken and that evidence of her work was not provided on that day. On 15 September 2017 the Department cancelled the visa on the basis that on the evidence before it the applicant had not complied with condition 8107 as a result of the interview on 22 February 2017 with Mr Gui.

12. 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

13. 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?

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

14. 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)(a)(i) attached to the applicant’s visa. This condition relevantly requires the visa holder (first named applicant in this matter) to work in the occupation listed in the most recently approved nomination for the holder.

15. The standard business sponsor who nominated the first named applicant in the most recently approved nomination for the 457 visa was Abesta (the sponsor) The sponsor’s nomination of the first named applicant was approved on 6 October 2014.The nomination was approved for the first named applicant to work in the occupation of Importer or Exporter (ANZSCO Code-133311). The delegate concluded in their decision that the first named applicant had not been working in the nominated occupation at the time of an onsite inspection of the workplace and there was insufficient evidence to establish that the first named applicant had worked in the nominated occupation for a substantial period of their stay in Australia. Consequently the first named applicant did not meet the requirements of condition 8107(3)(a)(i) and the 457 was cancelled under s.116

16. The description of an Importer or Exporter provided by ANZSCO states that they “plan, organise, direct, control and coordinate the operations of importing, exporting and wholesaling establishments. The tasks include : identifying local and overseas business opportunities; developing and implementing business plans and marketing operating human resource pricing and credit policies and procedures; determining the mix of products and services to be provided and negotiating conditions of trade; liaising with local and overseas suppliers and distributors about orders and products researching regulatory and statutory requirements affecting the importing exporting wholesaling and distributing of goods; monitoring business performance and preparing estimates financial statements and reports of operations; appointing agents and distributors; arranging the shipping of goods into and out of the country; overseeing the display and sale of merchandise and preparation of product information for customer service staff and customers; and implementing after-sales service procedures.

17. The evidence provided by the applicant is that she was performing the role of importer at all relevant times and that her break was for maternity leave. She was in receipt of her salary during the break. The Tribunal has accepted that, having had the benefit of the submitted material and the oral evidence of the applicant, there is sufficient evidence to conclude that the applicant was working in the role of importer at the time that the Department attended the Thomastown site albeit that she was on maternity leave.

18. The internal documents submitted reveal that the applicant was involved in issues of stock taking and ordering consistent with part of the role of an importer. Further the PAYG and superannuation documents indicate that the applicant was in receipt of income from the sponsor at the time that the Department attended the work site for an impromptu interview. The declaration of Mr Gui adequately explains the basis for potential confusion as to the status of the applicant’s circumstances following the attendance. The Tribunal has had the benefit of further documentation which had not been made available to the Department at the time of the notice of intention to cancel the visa was sent.

19. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise

    DECISION

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

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

    Danielle Galvin
    Member