Cheng (Migration)

[2021] AATA 561

Cheng (Migration) [2021] AATA 561 (4 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Weijie Cheng
Ms Xiang Cheng

CASE NUMBER:  2012992

HOME AFFAIRS REFERENCE(S):          BCC2020/1096342

MEMBER:John Cipolla

DATE:4 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision 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 4 February 2021 at 1:59pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Software Engineer – ground for cancellation – ceased employment with sponsor – consideration of discretion – pending employer nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

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 17 August 2020 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 visa under s.116(1)(b) on the basis of the applicant’s failure to comply with a condition attached to his visa. Recourse to the delegates decision record indicates that “the standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is SMART IT AND BUSINESS SOLUTIONS PTY LTD (‘the sponsor’), whose nomination was approved on 18 November 2016. The sponsor has advised the Department that the visa holder ceased employment with them effective 14 February 2020.”

3. The delegate concluded that the applicant, as a consequence, had not complied with condition 8107(3)(b) because, the period during which he ceased employment has exceeded 90 consecutive days, in breach of this visa condition.

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. The Tribunal set the matter down for a hearing on 9 February 2021 and the applicant was duly notified of the hearing date and time.  On the 3 February 2021 the applicant advised the Tribunal, through his representative that he would not be attending the scheduled hearing and that he wished the Tribunal to proceed to decision on the basis of the evidence before it.

7. No submission addressing the grounds for cancellation or whether or not the visa should be cancelled have been provided to the Tribunal at review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. Recourse to the delegate’s decision record indicates the following:

    The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is SMART IT AND BUSINESS SOLUTIONS PTY LTD (the sponsor) whose nomination was approved on 18 November 2016 to work in the position of Software Engineer (Australian and New Zealand Standard Classification of Occupations (ANZSCO) 261313.

    The grant of a subclass 457 visa includes the conditions applicable to the visa and condition 8107 must be imposed. Condition 8107(3)(b) states that if the visa holder ceases employment, the period during which they cease employment must not exceed 90 consecutive days.

    The occupation of Software Engineer (ANZSCO 261313) is not one specified in the relevant instrument referred to in paragraph 8107(3A) to exempt the visa holder from having to comply with the requirements of paragraph 8107(3)(b). Therefore, while he continues to hold the 457 visa he can only lawfully work in Australia for either the sponsor or an associated entity of theirs.

    The Department received written notification from the visa holder’s sponsor, SMART IT AND BUSINESS SOLUTIONS PTY LTD to advise that his employment with them ceased on 14 February 2020 Neither the visa holder, nor the sponsor, has informed the Department he has returned to work for the sponsor, or an associated entity of theirs, within 90 consecutive days of ceasing employment.

    In order for the visa holder to be able to lawfully work for another sponsor in Australia while he holds the visa, a prospective sponsor would need to lodge a new nomination application and for the Department approve this. There is no record on Departmental systems to indicate the visa holder has a new Temporary Skill Shortage or Labour Agreement nomination application approved in relation to any other sponsor.

    Based on the information before me, I am satisfied the visa holder has not complied with his visa condition 8107 by having ceased employment with his last approved sponsor for a period exceeding 90 days.

11. The evidence indicates that the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his visa on 22 June 2020. The NOICC spelt out the ground for the prospective cancellation of the applicant’s visa and gave him an opportunity to provide a response addressing whether or not the ground for cancellation existed and whether or not, having regard to a range of discretionary factors his visa should be cancelled. The applicant responded to the NOICC on the same day, 22 June 2020.

12. In his response (replicated in full below) the applicant provided the following information:

    Dear Sir/ Madam,

    I have lodged a new visa (subclass 186) on 20/04/2020 (TRN EGOPR5NBJO).

    Does the ground for cancellation exist?

13. 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) which says that if the visa holder ceases employment the period during which the holder ceases employment must not exceed 90 days.

14. The applicant’s employer notified the Department that the applicant ceased employment with them effective 14 February 2020. There is no evidence before the Tribunal that the applicant returned to work with this employer within 90 days or has commenced work within that period with an associated entity of this employer.

15. For these reasons, 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.

    Consideration of discretion

16. 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 case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

17. The applicant was granted a Subclass 457 visa for the purpose of being able to work in Australia in a skilled occupation which was not able to be filled from within the Australian workforce.

18. In the applicant’s response to the NOICC he did not provide any information pertaining to his compliance with visa conditions.

19. The evidence before the Tribunal indicates that the applicant has not complied with condition 8107(3)(b) of his 457 visa, by virtue of him having ceased employment with the sponsor for more than 90 consecutive days.

20. The applicant has advised that he has found a new sponsor who has lodged an application to the Department for an ENS Direct Entry visa (a permanent employer nomination visa) on 20 April 2020. The evidence indicates that this application is still being processed.  There is no evidence before the Tribunal that the applicant found a new Subclass 457 employer within 90 days of ceasing employment with his 457 sponsor, Smart IT and Business Solutions Pty Ltd. The evidence is such that the applicant did not lodge a Subclass 457 Temporary Skill Shortage or Labour Agreement nomination application within 90 days of ceasing employment with his existing sponsor, nor did he recommence work with his sponsoring employer or an associated entity of his sponsoring employer within 90 days.

21. It is a requirement for the grant of a Subclass 457 visa that an applicant comply with the conditions attached to that visa, such as condition 8107, and the evidence before the Tribunal is such that the applicant failed to comply with condition 8107 as he ceased to be employed by his sponsoring employer for in excess of 90 days.

22. The evidence before the Tribunal indicates the applicant has been residing in Australia since 2016 and during this time, he may have established some ties with Australia both personal and professional.  The evidence is such that the applicant has an application for a permanent ENS visa that is currently being processed by the Department.

23. The Tribunal has had regard to the circumstances in which the applicant’s visa was cancelled.  The evidence indicates that this occurred as a consequence of the applicant, ceasing his employment with his Subclass 457 sponsor for in excess of 90 days. This was in breach of a condition attached to his visa, condition 8107, and the applicant at the time of visa grant would have been made aware of the conditions attached to his visa and the need to comply with visa conditions.

24. There is no evidence of any other incidences of non-compliance by the applicant.

25. The applicant’s wife was granted a secondary visa on the basis that she is a member of the applicant’s family unit.  As a secondary visa applicant, the applicant’s wife’s visa will be automatically cancelled as a result of the applicant’s visa being cancelled. 

26. The Tribunal has had regard to the legal consequences of the cancellation of the applicant’s visa. As noted, the applicant is awaiting the processing of an ENS visa application and is currently holding a Bridging A visa, pending the outcome of that application and the applicant is able to remain in Australia lawfully until such time as that application has been determined.

27. There is no evidence before the Tribunal that Australia would be in breach of its international obligations to the applicant if his 457 visa is cancelled.

28. The Tribunal has considered the relevant discretionary considerations, pertaining to whether or not the applicant’s visa should be cancelled, both singularly and cumulatively. The Tribunal notes that the grant of a Subclass 457 visa leads to temporary residence for a period of up to 4 years, to work for a sponsoring employer in Australia. The evidence indicates that the applicant ceased employment with his sponsoring employer for in excess of 90 days in breach of condition 8107 attached to his visa.

29. The Tribunal having regard to the relevant discretionary considerations finds that when those considerations are cumulatively considered that the applicant’s visa in the circumstances of this case should be cancelled.

30. Considering the circumstances as a whole, the Tribunal concludes, that the visa should be cancelled

    DECISION

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

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

    John Cipolla
    Senior Member