Hu (Migration)

[2022] AATA 4130

Hu (Migration) [2022] AATA 4130 (23 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhiguo Hu
Ms Jinghuan Sun
Ms Jing Hu

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2210426

HOME AFFAIRS REFERENCE(S):          BCC2020/1574924

MEMBER:Noelle Hossen

DATE:23 November 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicants

Statement made on 23 November 2022 at 4:33pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – genuine effort to be engaged in employment for two years – employment terminated 14 days after permanent visa granted –forced to work more than 12 hours a day, underpaid and fired after asking about night shift pay – unsuccessful conciliation meetings and unfair dismissal claim – personal computer hacked and family threatened – discretion to cancel visa – no issues reported while holding previous temporary visa – complaints by other workers, previous owners removed from company and position reinstated – previous and current work record – visas of members of family unit automatically cancelled, with no jurisdiction to review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 137Q(2), 137T(1), 348
Migration Regulations 1994 (Cth), r 2.50AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 July 2022 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s 137Q of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not satisfied the delegate that they had made a genuine effort to be engaged in that employment for the required employment period, which was two years following the grant of the RSMS Visa. The delegate found that there was reliable evidence that the applicant’s employer attempted to resolve the situation and encourage the applicant to return to work including organise meetings or instruct via email. 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 that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 137T(1) of the Act. As no decision was involved in the visa cancellation under s 137T(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on 12 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter Jing Hu. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. 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

7. Under s 137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s 137Q(3). The visas currently prescribed by reg 2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

   Does the ground for cancellation exist?

8. Under s 137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by reg 2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.

   The employment referred to in the related employment nomination,

9. Glass Tech Australia Pty Ltd, hereafter, referred to as Glass Tech, the applicant’s sponsor lodged an application to nominate him for his RSMS visa on 20 June 2019 to work for them in the nominated position of a glazier. The nomination was approved on 28 August 2019 and  on 3 October 2019 the  applicant was granted an RSMS Visa, on the basis of the approved nomination At the time of the nomination and until the 29 July 2022 the company was managed by Bin and Lily Chen. They were co-owners of the company.  However, the employment referred to in the relevant employer nomination with Glass Tech was terminated on 17 October 2019, just 14 days after the RSMS Visa was granted. The delegate proposed cancellation of the applicants RSMS Visa because he ceased his employment referred to in the relevant employer nomination within the required employment of 2 years.

   whether visa holder was engaged in that employment for 2 years, and

10. The applicant was notified of the proposed cancellation on the 21 October 2021. His employment had been terminated by Glass Tech just 14 days after the RSMS visa was granted.

11. In his response to the Notice of Intention to Cancel, the applicant admitted he stopped working for the sponsor on 17 October 2019 and claims he was fired on 15 October 2019 when he asked Mr Tang (another manager of the company) about the night shift pay. He further claims Glass Tech exploited and threatened him to include never paying overtime forcing him and his colleagues to work more than 12 hours in a day and underpaying his contract wages for his working hours.

12. However, he admitted that Lily Chen organised conciliation meetings and informed him verbally and in writing that he should return to work. The applicant claims he did not return to work because he felt threatened by Bin Chen.

13. The delegate found that even though the applicant had made an application to the Fair Work Commission regarding his unfair dismissal claim and reported the intimate pictures and threatening text messages that his daughter received to the police the applicant had been working with Glass Tech since March 2016. At that time, he held a Temporary Work (subclass 457) Visa. He claims Glass Tech exploited and threatened him, yet he never referred the matter to Fair Work Commission earlier and continued working Glass Tech for four years.

14. The delegate was satisfied that the applicant had commenced employment referred to in the relevant employer nomination and the employment terminated within the period of two years starting on the day the applicant commenced that employment. The Tribunal finds that the applicant was employed by Glass Tech at the time of the Visa application in Visa grant therefore the required employment commenced at the time the applicant was granted the RSMS Visa.

    if not, whether satisfied they made genuine effort to be engaged for the 2-year period

15. The delegate set out in detail in the Decision the claims made in the response by the applicant as follows:

16. The applicant was employed with Glass Tech since March 2016 when he transferred his employment from the Darwin office to the Canberra one. He stated that the owners of Glass Tech were Bin and Lily Chen and Mr Tang was a supervisor.

17. He stated that Glass Tech exploited him because they did not pay overtime, forcing him to work more than 12 hours in a day, underpaying his contract wages for his working hours and harassing his family members. When he asked Mr Tang about the nightshift pay on 15 October 2019 he was fired.

18. On 16 October 2019 Lily Chen asked him to meet with Mr Tang to discuss his grievances and then return to work. He claims he wanted Mr Tang to apologise to him however he claims Mr Tang did not apologise and instead blamed him for being late. The applicant adds that he got into an argument with Mr Tang and was fired again without any warning or notice.

19. He applied to the Fair Work Commission on 18 October 2019 based on being dismissed unfairly. He claims Lily Chen set up a meeting on 22 October 2019 after she received the letter from Fair Work Commission, but he was unable to meet with her. He claims that prior to the meeting his colleague told him that Bin Chen wanted to hit him if he was present when the applicant and Mr Tang had the argument.

20. Bin Chen bullied him at times and the applicant claims he felt extremely uncomfortable and feared him. He further claimed that Bin Chen later hired hackers to hack into the applicant’s laptop from which he stole private pictures and sent them to the applicant’s family. He added that the police were investigating the criminal matter.

21. On 24 October 2019 Lily Chen sent the applicant an email asking him to return to work, but he refused, as he was afraid of retaliation from Bin Chen and Mr Tang. On the same day he claims he received a call from Glass Tech’s immigration lawyer and that Glass Tech offered him money to cancel his Unfair Dismissal application. He claims he refused as he wanted justice adding that all his colleagues have suffered exploitation like him.

22. On 25 October 2019 he was sent a warning letter by a lawyer that Lily Chen hired to inform him that he had committed an offence under the Listening Devices Act 1992. However, he claims he responded to her to advise her that he had not committed any such offence. He said that on 30 October 2019 Lily Chen provided incorrect information about the number of employees at Glass Tech in the form submitted to the Fair Work Commission and she and Mr Tang provided false statements as well.

23. On 19 November 2019 and 10 December 2019 Lily Chen offered him to return to work at the reconciliation meetings but the applicant refused since he was worried about his safety at Glass Tech as he said that his basic rights could not be guaranteed there. He said that Bin Chen forced him to do over time and threatened to have his Visa cancelled if he refused.

24. All his private files were stolen by a hacker who was hired by Bin Chen and he and his family were threatened by it leading to the applicant leaving Canberra immediately

25. On 28 November 2019 the applicant’s daughter Jing Hu received several intimate images of the applicant’s former girlfriend along with the threatening text messages. He sent the message to Lily and reported the incident to the police.

26. His former colleague provided statements in support of the applicant’s claims that Glass Tech exploited them and that bullying, and threatening was common. He claims he was reluctant to seek recourse under workplace laws for apparent contravention by the employer of his employment rights, because of fears about withdrawing sponsorship and cancelling the Visa before his RSMS Visa was granted.

27. At the time of the delegate’s decision the applicant submitted an unfair dismissal action to the Fair Work Commission on 18 October 2019, two weeks after the grant of his RSMS Visa was granted. The applicant failed to provide any further evidence of the outcome of the Fair Work claim to the Department.

28. The delegate acknowledged the applicant’s claims that he was worried about his safety at Glass Tech but found that the applicant had worked for Glass Tech since March 2016 and there was no evidence that he had any issues with them previously and there was no evidence of any complaints that he made to the Fair Work Commission prior to 18 October 2019 or the grant of the RSMS visa.

29. The Tribunal agrees with the Delegate of the Department, in that there is no evidence that the applicant made a genuine effort to be engaged in that employment for the required employment being two years following the grant of the RSMS Visa at the time of the Decision. The applicant’s employment was terminated, and he did launch an unfair dismissal claim to the Fair Work Commission. The Tribunal is satisfied that there was a ground for cancellation under subsection 137Q(2) of the Migration Act 1958.

    Consideration of discretion / conclusions

30. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 137Q exists. As the power to cancel under s 137Q is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.

    Should the visa be cancelled?

31. There are no matters specified in the Act or Regulations that must be considered in relation to 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: Act - Visa cancellation instructions - Regional sponsored employment visas.

    The purpose of the applicant’s travel to and stay in Australia, such as whether they have a compelling purpose to travel and stay in Australia.

32. The applicant arrived in Australia as the holder of a Temporary Work Skilled (Subclass 457) Visa on the 7 October 2015. The purpose of the applicant’s continued stay in Australia was to secure permanent residency and continue his work as a glazier.

33. The applicant claims that he ceased employment as he was bullied and underpaid by Glass Tech and submitted statements to the Department from his former colleagues and the application that he made to the Fair Work Commission.

34. The applicant did have a witness who provided written evidence for the hearing and confirmed that he had taken over the management of the company and was going to reemploy the applicant. There were 2 statements from Chun Hua Tao dated the 4 October 2022. He stated as follows:”

    I am writing to confirm my offer of a position at Glass Tech Australia as a Glazier. The hours will be 38 hours per week.

    This is a permanent position, and you will be entitled to all staff benefits. Your starting date will be the 1/11/2022.”

35. He explained that he is the majority shareholder as he held 75% of the shares of the company and is now the current managing director of the company since 29 July 2022. He stated that Bin and Lily Chen have been removed from their company and that he has initiated an audit and an investigation against them on their removal date.

36. The Tribunal places a lot of weight on that evidence in favour of not cancelling the visa.

    If there are children whose interests would be affected by cancellation, or consequential cancellation under s 137T, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].):

37. The applicant and his wife and daughter are a family unit and are all citizens of the Republic of China.

38. The applicant’s daughter Jing Hu is an adult who is in a defacto relationship. She has a full-time job and is not financially dependent on her father. However, they are all linked to the applicant’s visa. The Convention on the Right of the child is not applicable in this scenario.

39. The Tribunal does not place any weight for or against the decision to cancel the visa for this consideration.

40. The circumstances leading to the grounds for cancellation:

41. Chun Hua Tao, provided written evidence dated the 4 October 2022 and explained the position and confirmed the evidence of the applicant that he had been fired by Bin and Lily Chen in 2019. The evidence confirmed that he was a dedicated, skilled and professional worker. He had been harassed by Bin Chen because of his claim in the Fair Work Commission and he has had to move out of Canberra to avoid harassment and threats made to himself and his family.

42. He confirmed that they had treated the workers poorly and that other staff had filed complaints to Fair Work Commission and had been harassed by Bin and Lily Chen.

43. The Tribunal accepts the evidence of Chua Hua Tao and places significant weight on those facts in favour of not cancelling the Visa.

    The visa holder’s current and past behaviour in relation to the Department, such as the truthfulness of statements made to officers or in applications under consideration by the Department:

44. There is no evidence before the Tribunal of any behaviour by the applicant or his family that would be considered as adverse towards the Department, or its officers, so the Tribunal places some weight on those facts in favour of the applicant’s case and not cancelling the visa.

    The links to the community the visa holder may have. This can include the strength of family, social, business and other ties in Australia. Strong ties to regional Australia and continued employment in that area may also be given special consideration:

45. The applicant will continue his employment in Regional Australia as he and his wife plan to return to Canberra as he has been offered a permanent position with Glass Tech as it under new management.

46. The applicant’s evidence is that he lived in Canberra and had settled in the community. His daughter is in a committed relationship and is employed as an educator with Little Lane Early Childhood Centre and wishes to continue to maintain the employment. She and her partner would be seriously affected  socially and financially by the cancellation of the Visa.

47. If the visa is cancelled the applicant and his family will have to return to China and that would cause them hardship as they would not be able to reside or work in Australia. The Delegate was of the view that this would cause them financial, social and emotional hardship.

48. The Tribunal agrees with the Delegate’s view and places significant weight on those facts in favour of not cancelling the Visa.

    The length of any period of employment with the sponsor, including any previous employment with the sponsor whilst the visa holder was on a temporary visa:

49. The applicant was employed as a glazier with Glass Tech from 2016 to 2019. The employer has reinstated his position and removed the managers who fired him and bullied him.

50. The applicant did not report any issues prior to 2019. The applicant had complied with the requirement and was working for the sponsoring employer in a regional setting. He has accepted a job offer to return to work under safer work conditions in that regional setting

51. The Tribunal places significant weight on those facts in favour of not cancelling the Visa.

    The degree of hardship that may be caused to the visa holder and any members of their family unit:

52. The applicant and his family have settled in the community and have established significant ties because of their previous employment. The applicant has been living in Australia since 2015.

53. The applicant’s daughter and her partner will also suffer financial hardship as they are settled in Australia and are suitably employed.

54. The Tribunal places significant weight on those facts in favour of not cancelling the Visa.

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

    DECISION

56. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

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

    Noelle Hossen

    
    

    Member