Hao (Migration)

[2017] AATA 2444

Hao (Migration) [2017] AATA 2444 (20 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hongwen Hao
Miss Qiuying Li
Miss Runhan Hao
Miss Zihan Hao

CASE NUMBER:  1701389

DIBP REFERENCE(S):  BCC2016/1827169

MEMBER:R. Skaros

DATE:20 November 2017

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 (Temporary Work (Skilled)) visa.

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

Statement made on 20 November 2017 at 12:49pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Ceased employment with former employer – New nomination not approved within the period of 90 days – Dismissal without notice from employment – Financial and emotional hardship

LEGISLATION
Migration Act 1958, ss 116, 348
Migration Regulations 1994, Schedule 8, 8107

CASES
Tien & Ors MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 January 2017 made by a delegate of the Minister for Immigration 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(3)(b) that was attached to his visa. 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: 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 applicant provided a copy of the delegate’s decision record to the Tribunal. The Tribunal also received supporting declarations from Ms Ziyi Liu, and Mr Yuan Fang.

5. The first named applicant (Mr Hao) appeared before the Tribunal on 15 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Ms Li. Mr Hao’s colleague Ms Ziyi Liu. His friend Mr Yuan Fang also attended the hearing 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.

7. 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

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?

9. 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. In this instance condition 8107 attached to the applicant’s visa. The relevant paragraph in this case is 8107(3)(b):

   8107

   (3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

   (a) the holder:

   (i)  must work only in the occupation listed in the most recently approved nomination for the holder; and

   (ii) unless the circumstances in subclause (3A) apply:

   (A)  must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

   (B)  if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

   (C)  if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor— must work only in a position in the business of the sponsor.

   (aa) the holder must commence that work within 90 days after the holder's arrival in Australia; and

   (b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and

   (c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder's position is situated—the holder must:

   (i) hold the licence, registration or membership; and

   (ii) comply with each condition or requirement to which the licence, registration or membership is subject.

10. The Tribunal is satisfied on the evidence before it that paragraph 3A does not apply in this case as the occupation in which Mr Hao was nominated (Retail Buyer) is not one of those specified in the relevant instrument.

11. The evidence before the Tribunal as set out in the decision record indicates that the applicant was granted a Subclass 457 visa on 14 January 2014 on the basis of a nomination by Ausunion Pty Ltd (the sponsor) in the occupation of Retail Buyer. On 20 January 2016 the Department received information from the sponsor advising that the applicant’s employment ceased with them effective 13 January 2016.

12. Information in the decision record indicates that a nomination in respect of the applicant was lodged by Panlyn Pty Ltd on 17 April 2016. That nomination was withdrawn on 2 November 2016. Prior to the withdrawal of that nomination, on 30 September 2016, the sponsor (Ausunion) lodged an application for approval as a standard business sponsor and a nomination in respect of the applicant. On 24 January 2017 the sponsorship application was refused and the nomination in respect of the applicant was administratively finalised.  Ausunion applied to the Tribunal for review of the decision not to approve the sponsorship which remains pending.

13. At the hearing, the Tribunal discussed with the applicant condition 8107(3) and noted that he appears to have breached that condition as he ceased working with his nominating employer for a period of more than 90 days.

14. In response, Mr Hao stated that he did not breach the 90 days period because he had found another employer (Panlyn) who lodged a nomination with the Department within 90 days. He stated that he ceased employment with Ausunion on 21 January 2016, not 13 January 2016 as notified by the employer. He stated that the previous director of Ausunion had dismissed him without notice and had not paid one month’s salary. Mr Hao provided details of the circumstances in which he resumed employment with Ausunion, which the Tribunal has considered further below as part of its consideration of the discretion.

15. The representative further submitted that because the applicant had accepted a job with Panlyn on 13 April 2016, which was within 90 days of ceasing employment with Ausunion, he did not breach 8107(3)(b) as the period during which the holder ceased employment did not exceed 90 consecutive days.

16. The Tribunal has had regard to the above submissions however as explained to the applicant at the hearing, the Tribunal is of the view that when considering condition 8107(3) in its entirety, the employment to which condition 8107(3)(b) refers is that which was the subject of the most recently approved nomination. So even if the Tribunal was to accept that Mr Hao ceased work with Ausunion on 21 January 2016 and that he had accepted a job offer with Panlyn on 13 April 2016 (being within 90 days), the Tribunal is not satisfied that this is the employment to which 8107(3)(b) applies. The Tribunal considers that for the applicant to have complied with 8107(3)(b), the nomination by Panlyn in respect of the applicant had to have been approved, and not just lodged, within 90 days of him ceasing employment with Ausunion.

17. In light of the above, the Tribunal finds that the period during which the applicant ceased the relevant employment exceeded 90 consecutive days.  The Tribunal accordingly finds that condition 8107(3)(b) has been breached.

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 power to cancel the visa should be exercised.

    Consideration of discretion

19. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

20. The Tribunal has first considered the purpose of the visa holder’s travel and stay in Australia. The applicant was granted the Subclass 457 visa on 14 January 2014 to work for Ausunion as a Retail Buyer.  He and his family travelled to Australia in April 2014. The applicant commenced working for Ausunion shortly after his arrival until he was terminated from that employment in January 2016. The Tribunal acknowledged the applicant’s dispute about the exact day on which his employment ceased and accepts on the basis of his evidence, and the evidence of his work colleague Ms Liu, that he was working at the business’ premises in Sydney until 20 January 2016.

21. At the hearing, Mr Hao gave evidence that he had been unfairly dismissed without notice by the business’ former director. He explained that while he was able to secure employment with Panlyn within a few months of ceasing employment with Ausunion, the employment was in Perth which presented a number of difficulties for him and his family who remained in Sydney. Mr Hao explained that shortly after his dismissal, his former employer sold the business to Mr Guang Yang who became the new owner of the company. Mr Yang purchased 100% of the shares in Ausunion which operated the business: Sydney Gift World. This is consistent with information on ASIC’s records, including the Ausunion’s current and historical company statement. Mr Hao gave evidence that during the process of the purchase Mr Yang contacted him and asked if he would be willing to return to work for Ausunion at a higher rate of pay and he agreed. He stated that his employment with Ausunion was reinstated on a new contract of employment and he commenced work in September 2016. The Tribunal acknowledges that Ausunion’s bank account transactions show several withdrawals noted as ‘Hao Hong Wen salary’ between September 2016 and December 2016. In September 2016, Ausunion, under the management of Mr Yang, lodged a new application for approval as a sponsor and a new nomination in respect of Mr Hao. As noted above, the sponsorship application was refused by the Department on 24 January 2017 and Mr Hao’s 457-visa was cancelled on the same day. Mr Hao gave evidence that he ceased employment with Ausunion so as to comply with the no work condition attached to his bridging E visa. The Tribunal has had regard to the employment contract between the applicant and Ausunion dated 16 September 2016 and the statutory declaration from Mr Yang dated 28 August 2017 supporting the applicant’s claim that he recommenced employment with Ausunion in September 2016.

22. The Tribunal notes that it also received evidence that Ausunion had been approved as a standard business sponsor on 13 August 2014 for a period of three years. The representative submitted that Ausunion Pty Ltd lodged a new sponsorship application and nomination in September 2016, despite already being an approved sponsor at the time, on the request of the Department. She explained that they were contacted by the Department’s Queensland office, the same office that considered Mr Hao visa cancellation, and were advised to lodge a new sponsorship and nomination. The representative submitted that while Ausunion complied with this request, they did not consider it necessary as Ausunion was already the approved as a sponsor that nominated Mr Hao.

23. In response to the Tribunal’s queries about the reasons for the sponsorship refusal, the representative explained that the Department was not satisfied that the Ausunion was actively operating a business and had incorrectly stated that the business did not have any sales and only had minimal transactions. The representative provided to the Tribunal copies of Ausunion’s 2016 financial reports, a number of completed activity statements and bank statements which she submitted show that the company was operating a business and that the Department had made an error. The Tribunal briefly reviewed the information and acknowledged that the documents, on their face, appear to show that Ausunion is operating a business. The Tribunal also acknowledged the representative’s submission that it was not necessary for Ausunion to have applied for sponsorship approval given it was already approved as a sponsor at that time. The Tribunal notes however that it is not reviewing the sponsorship refusal decision. It is also not clear on the evidence before the Tribunal why the Department would have requested Ausunion to apply for another sponsorship. It is possible that Ausunion may have filled the number of position it proposed to nominate and so had to apply to vary the terms of approval however this is only speculation and the Tribunal cannot be sure that this was the reason for the Department’s request.

24. In any case, the Tribunal notes that condition 8107 on the applicant’s 457 visa is in respect of the position with the employer that last nominated him, who in this case was Ausunion. This means that if the Tribunal decides to set aside the cancellation, the applicant’s employment with Ausunion will not be in breach of condition 8107. The Tribunal acknowledges that Ausunion changed ownership however this was only in relation to the shareholding. The company maintained the same ABN and continued to operate the same business. In the circumstances, the Tribunal is satisfied that the applicant’s intention to resume employment with Ausunion is consistent with the purpose for which the 457 visa was granted. The Tribunal gives weight to these circumstances in favour of not cancelling the visa.

25. Other than the applicant’s breach of condition 8107, as found above, there is no evidence before the Tribunal to suggest that the applicant has breached any other visa condition.  There is also nothing before the Tribunal to suggest that the applicant’s conduct towards the Department has not been satisfactory.

26. The Tribunal has also considered the circumstances in which ground of cancellation arose. The ground of cancellation arose 90 days after Mr Hao ceased employment with Ausunion. The Tribunal acknowledges that a new nomination was lodged in respect of Mr Hao by Panlyn just before the 90 day period ceased, however that nomination was not approved within the period of 90 days and was later withdrawn.  When this was discussed with Mr Hao at the hearing, he stated that he was dismissed from his employment by the former owner of Ausunion without warning. He said that he had been away on a family holiday and when he returned to work after his holiday the employer suddenly dismissed him.  He stated that he did not receive any notice period and was not paid a month’s salary. He stated that he did not contact the Fair Work Ombudsman because he was too concerned about the cancellation of his visa. Mr Hao stated that he was contacted by the new owner, who entered into negotiations to purchase the business a few months later, and was asked if he would return to work. He stated that shortly after the new owner took over, he resumed employment for Ausunion until his 457 visa was cancelled in January 2017.

27. The Tribunal accepts that the applicant was dismissed without notice from his employment, and that the dismissal was a factor not within the applicant’s control. The Tribunal accepts that the applicant made efforts to comply with the conditions of his visa by trying to find another employer who was willing to nominate him. The Tribunal has had regard to these circumstances, and gives them some weight in favour of not cancelling the visa.

28. The Tribunal has also considered the hardship that may be caused if Mr Hao’s visa is cancelled. The Tribunal accepts that if Mr Hao’s visa is cancelled, his spouse and children’s visas will also be consequentially cancelled. Mr Hao and his spouse, Ms Li, will therefore be affected by s.48 of the Migration and will have limited options for applying for further visas onshore. Ms Li gave evidence at the hearing that this would adversely affect her as she currently owns and operates a gift shop business in Sydney and has received an invitation from the Department to apply for the Business Innovation visa (Subclass 188). If Ms Li’s visa is cancelled she will not be able to apply for the Subclass 188 visa onshore. Ms Li also stated that if they had to return to China to apply for a visa from offshore it would cause financial hardship as it would be difficult to manage the business from outside Australia. Mr Hao and Ms Li also emphasised the emotional and psychological effect that cancellation would have on their two young daughters whose schooling would be disrupted if the whole family had to return to China to lodge their visa applications.

29. While the Tribunal normally considers the mandatory legal consequences of cancellation and consequential cancellation of family members’ visas to be the intended consequences of the legislation and gives them limited weight, in the circumstances of this case, the cancellation of the family member’s visas will have significant consequences for Mr Hao and his family for the reasons they have stated. The Tribunal accepts that the cancellation would likely cause considerable financial and emotional hardship. The Tribunal gives weight to these circumstances in favour of not cancelling the visa.

30. The Tribunal has also considered whether international obligations would be breached as a result of the cancellation. Mr Hao and Ms Li have indicated in their evidence that if the visa is cancelled they would return to China as a family and as such the family unit will remain intact. The Tribunal is satisfied that Australia’s international obligations would not be breached by the cancellation and accordingly gives no weight to this consideration in the exercise of its discretion.

31. Having regard to all of the evidence and weighing up the relevant circumstances, the Tribunal considers that the circumstances in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal considers that the correct and preferable decision in this case is that the visa is not cancelled.

    DECISION

1. 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.

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

   R. Skaros
   Member