Gong (Migration)

[2019] AATA 6635

Gong (Migration) [2019] AATA 6635 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Huaifeng Gong
Ms Lihua Yang
Mr Lei Gong

CASE NUMBER:  1823119

HOME AFFAIRS REFERENCE(S):          BCC2015/3586192

MEMBER:Stavros Georgiadis

DATE:6 December 2019

PLACE OF DECISION:  Adelaide (matter heard in Perth)

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 6 December 2019 at 4:55pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Federal Circuit Court remittal – ground for cancellation – ceased employment with sponsor – consideration of discretion – circumstances giving rise to non-compliance – employer deregistered – beyond the applicant’s control – unable to secure new nomination – degree of hardship – 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 19 January 2016 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 applicant did not comply with condition 8107 of the visa and the delegate decided, on balance, that the visa should be cancelled. The issue in the present case 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: 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 and third named applicants.

4. This matter was remitted to the Tribunal by Consent Order of the FCCA in matter number PEG480/2016, on the basis that a non-disclosure certificate issued under s.375A of the Act on the grounds of public interest immunity had not been disclosed to the applicant in the course of the review. On 6 August 2018 the FCCA ordered: ...

   BY CONSENT, THE COURT ORDERS THAT:
   1. A writ of certiorari issue directed to the second respondent quashing its decision dated 15 September 2016 (AAT Case number 1600850).
   2. A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the            first respondent dated 19 January 2016 according to law.
   3. The first respondent pay the applicant’s costs, fixed in the sum of $3,667.
   4. The Hearing listed on 19 September 2018 at 10:15am before Judge Lucev be vacated.

   THE COURT NOTES, BY CONSENT, THAT:
   The first respondent concedes that the second respondent denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister forImmigration and Border Protection v Singh [2016] FCAFC 183, in circumstances where:

   a. A delegate of the first respondent issued a certificate pursuant to section 375A of the Migration Act 1958 (Cth) (Act) on 29 January 2016 and the existence of the certificate was not disclosed to the applicant in the course of the review by the second respondent; and

   b. At least some of the documents subject of the certificate were relevant, or   potentially relevant, to the issues arising on the review by the second respondent.

   ...

5. The applicant appeared before the Tribunal on 14 October 2019 to give evidence and present arguments on behalf of all applicants.  He was accompanied by his son, a minor, who was not required to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicants were represented in relation to the review by their registered migration agent. The agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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

9. 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 is attached to the applicant’s visa. This condition requires that if the visa holder ceases employment, the period during which the visa holder ceases employment must not exceed 90 consecutive days: cl.8107(3)(b). It is on this basis of the applicant ceasing employment exceeding 90 consecutive days that the delegate cancelled the visa.

10. The applicant travelled to Australia on 6 July 2012 and worked for the sponsor employer, Ausray Industries Pty Ltd (as Trustee for Red 8 Trust t/as Red 8 Recruitment).  The applicant was employed as a welder as the holder of a 457 visa granted on 13 June 2012 and otherwise valid to 13 June 2016 - but in this case, 19 January 2016 when his visa was cancelled. This is confirmed in the Department’s Movement Details which also record the applicant lost work rights from 12 February 2016 by the inclusion of Condition 8101 (no work in Australia) on his Bridging visa WE-050P00.

11. In this particular case, the sponsoring employer was deregistered on 10 April 2015 and the business wound up on 21 August 2015 as confirmed in ASIC records consistent with the applicant’s oral evidence on this. The applicant told the Tribunal that his employer kept him mainly ‘in the dark’ about the viability of the business. He confirmed that a site visit had been conducted by the Department on 26 March 2015 at which time he was not present because there was no work and the employees had been told by the employer to stay home.  The applicant said that when the factory was ‘locked up’ in 2015 he, and about five other 457 visa holders, met up with the employer at the employer’s home who confirmed at that time that the business had been wound up from 21 August 2015.

12. In accordance with the procedure under s.359AA of the Act, the Tribunal put to the applicant at the hearing that it wished to discuss information which, subject to his response, would be the reason or part of the reason, for affirming the decision to cancel the visa. This information relates to the aforementioned s.375A non-disclosure certificate which the Tribunal considers is not valid. The existence of the certificate has already been disclosed through the dealings of the remitted matter (by Consent Order) from the FCCA. There is also the substantial passage of time of more than four years regarding the matters pertaining to investigations mentioned in the certificate. The Tribunal put to the applicant that from the certificate, the sponsor employer and other entities (undisclosed to the applicant) were the subject of investigations by the Department regarding 457 visa holders working with Ausray Industries Pty Ltd (as Trustee for Red 8 Trust), who appear to not have been working for the sponsor since March that year - being more than the permitted period of 90 days - in breach of the visa condition 8107. The Tribunal described the circumstances of a site visit conducted at the property at Bibra Lake on 26 March 2015 where the property was locked up with no sign of work activity. The Tribunal explained to the applicant that he would be asked to comment or respond to this information and could seek additional time to comment on, or respond to, the information, which the Tribunal would consider.

13. The applicant did not seek additional time and responded straight away to the Tribunal. The applicant explained to the Tribunal that his employer owed the workers money (two weeks salary in his case) and that no superannuation had been paid at all.  He explained that this is why he did not have any payslips to establish the date he had ceased work with that employer. On the question of the cessation date of his employment, the applicant responded when asked, ‘I have no idea’ as he could not remember the relevant dates. The applicant consistently displayed little knowledge or apparent understanding of the circumstances relating to his case.  He responded to many questions at the hearing with ‘I have really no idea’ or ‘I don’t know.’  He emphasised that he just relied on his Migration Agent to keep him and his family in Australia.  He volunteered ‘the boss told us in 2016 that he will find lawyers for us’ when the business closed down.  He added that the Migration Agent was being paid for by the employer.

14. Later on during the hearing, the Tribunal was able to establish from the applicant’s oral evidence that he has not worked for around 4 years since the business closed. This includes a period since before his visa was cancelled on 16 January 2016. The applicant ultimately conceded in his oral evidence that this amounted to a period of more than 90 consecutive days in which he had not worked when holding his 457 visa, despite not being able to identify the exact dates.

15. A Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant on 9 December 2015 setting out the grounds for proposed cancellation including the breach of Condition 8107 and the particulars provided including the work site visit of 26 March 2015, deregistration of the company on 10 April 2015, administrators appointed to wind up the company on 21 August 2015, the cessation of the applicant’s employment in excess of 90 days and other matters.  The applicant responded to issues raised in the NOICC through his migration agent in an email dated 17 December 2015 and this response has been taken into consideration in making this decision.

16. The applicant’s response of 17 December 2015 is that he had 90 days to seek a new employer after ceasing employment with Ausray Industries Pty Ltd. The submission is that the applicant “has been nominated by another company on 21 October 2015 [following the winding up of 21 August 2015] which is within the 90 day period” and that the employer paid wages beyond winding up “till the end of July this year” [2015]. However, there is no evidence to establish that the applicant has secured another nomination approval or recommenced employment within an approved sponsored nomination within the requisite 90 days.

17. Having carefully questioned the applicant, and in the absence of payslips, bank statements, superannuation records or other documents to establish the periods of employment with the sponsoring employer, the Tribunal accepts the applicant’s oral evidence and concession that he ceased employment when the business was wound up, on or about 21 August 2015.  The Tribunal finds that the period during which the applicant ceased employment has exceeded 90 consecutive days, in breach of condition 8107 attached to his Subclass 457 visa - specifically cl.8107(3)(b).

18. 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

19. 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’.

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

20. The Tribunal has considered that the purpose of the applicant’s travel and stay in Australia is to fill the skill shortage for in demand positions. The applicant’s evidence is that from his experience, there is a surplus of Chinese, Malay and Thai welders in Australia and that it has become increasingly difficult to secure such work here.  The applicant explained at the hearing that he attempted to secure a nomination with another employer, which the Tribunal gives some weight to in the applicant’s favour, but ultimately this was unsuccessful.  The Tribunal notes the circumstances that the Subclass 457 visa was due to expire on 13 June 2016 in any case, being 4 years since the grant of the visa on 13 June 2012.

    Whether the visa holder has a compelling need to travel to or remain in Australia 

21. The applicant submits that he is keen for his son, who is in Year 10, to complete his Year 12 schooling in Australia so as to not disrupt his study program.  The Tribunal places some weight on this in support of the application.  However, this is still some 2 years away and the Tribunal is not persuaded by the submission that the applicant’s son ‘can’t go to school in China’ as the applicant’s own evidence is that he and his family are able to return to China without hindrance noting the applicant’s travel to China for one month between 8 February 2015 to 8 March 2015 as recorded on the Department’s Movement Details.

    The degree of hardship that may be caused

22. In terms of hardship, the Tribunal acknowledges that the applicant’s son will need to integrate to an unfamiliar education system and that this could cause some angst and readjustment. He speaks some Chinese but this is described as poor. However, the Tribunal accepts from the evidence given at the hearing that as a student the applicant’s son will be ahead in some areas (such as English language studies) which is also taught in China’s school system, that will place him at some advantage compared to other student peers, to his benefit academically. The Tribunal considers that the applicant’s son is able to attend school if he returns to China and would not be separated from his parents with the return of all applicants.

23. The applicant’s spouse, Ms Yang, has worked in the past making sushi until the applicant’s visa was cancelled. The applicant and his spouse are both now out of work, but would face financial hardship remaining unemployed in Australia compared to returning to China, where they both have the right to work.

24. The Tribunal accepts the applicant’s evidence that he has used up most of his $34,000 in savings in Australia given that he has a family of three to support and has not had work rights attached to his visa for a substantial period - since 12 February 2016.  However, the applicant also has family support available from a number of siblings (4 brothers) in China and other resources he can access.  For example, he said he has house rights in his home area of Anhui Province from before leaving China and retains a rental property used to generate some income.  The Tribunal also accepts the applicant’s evidence that he has work experience and contacts in the welding industry in China and accepts his oral evidence that it is easier to secure work as a welder in China compared to Australia. This weighs substantially against not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

25. There is no suggestion of non-compliance by the applicant with previous visa conditions in the past. Other than the breach of his visa condition 8107 in the present matter, there is no evidence that the visa holder has not complied with other visa conditions applying to him.  This weighs against cancelling the visa.

    The circumstances in which ground of cancellation arose

26. The applicant considers he is being unfairly treated in light of having sold his belongings in China and paid 200,000 RMB to a migration agent in China for his family’s visa applications and processing. He has lived in Australia for some seven years now and in this time his son has attended school in Australia and the family has become more settled in Australia.

27. The circumstances of the ground for cancellation have already been discussed generally earlier. The applicant considered that his sponsor was placed under external administration from 21 August 2015 and continued operating for a while after that, but it is evident from the ASIC database records that the company Ausray Industries Pty Ltd as Trustee for Red* Trust (t/as Red 8 Recruitment) was deregistered on 10 April 2015. The Tribunal accepts that these were factors outside of the applicant’s control and this weighs somewhat against cancellation of the visa.  The Tribunal accepts that the applicant is no longer able to work for Ausray Industries Pty Ltd due to reasons beyond his control and that this is the reason his cessation of employment exceeded 90 consecutive days.

28. The Tribunal has also considered the applicant’s financial costs for his family’s visa applications. Item 1223A of Schedule 1 of the Regulations provides that the visa application charge for a subclass 457 visa is $350AUD (approximately 1,760 RMB) for each applicant with a total for the family of approximately $1000AUD.  The fees paid are several times the cost of the visa applications and the Tribunal has had regard to the conduct on the part of those acting for the applicant. This does not excuse the non-compliance however, as it is up to the applicant to satisfy himself that he is compliant with all requirements of his application and visa and to obtain appropriate advice.

29. There is no evidence of any approved new nomination.  Should the applicant seek to secure a fresh nomination or other 457 visa (or current equivalent), this can be conducted from offshore.

    Past and present conduct of the visa holder

30. The applicant failure to engage with the Department is to his detriment. His migration agent provided submissions in the past of which the applicant seems unaware or at least to lack understanding of certain detail in particular, the timing and circumstances as to the company’s winding up as discussed earlier. In other respects the applicant’s behaviour towards the Department has been generally acceptable which acts in his favour.

    Consequential cancellations - under s.140

31. If the applicant’s visa is cancelled, the visas of his spouse and son (as purported members of the same family unit) will also be cancelled. As earlier outlined, the second and third named applicants’ visas were automatically cancelled as a consequence of that cancellation 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: Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96.

    Whether any international obligations would be breached as a result of the Cancellation

32. The applicant has not identified any other reasons why he would not be able to return to China. The Tribunal notes from the Department’s Movement Details that the applicant left Australia to travel there in February / March 2015.  As discussed, where the applicant’s visa is cancelled, then the visas of dependent visa holders Ms Yang, Lihua (DOB: 11/12/1977) and Mr Gong, Lei (DOB: 10/08/2003) would also be cancelled. The cancellation of the visas of the visa holder and his dependants is not likely to result in separating his family unit as the applicants can all depart Australia together to avoid detention for being unlawfully onshore. There is nothing before the Tribunal to indicate international obligations would be breached as a result of the cancellation of the applicant’s visa.  This weighs against not cancelling the visa.

    Any other relevant matters

1. The Tribunal file contains extracts from a number of other associated cases of employees from the same workplace who have also had their visas cancelled in some cases. The Tribunal has proceeded on the basis that the exercise of the discretion is specific to the circumstances of the specific applicants before the Tribunal in this application. As a result, the Tribunal has not had regard to the circumstances of others.

2. Considering the circumstances as a whole, the Tribunal concludes, on balance, that the visa should be cancelled.

   DECISION

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

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

   Stavros Georgiadis
   Member