Huang (Migration)
[2021] AATA 4998
•8 December 2021
Huang (Migration) [2021] AATA 4998 (8 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Bo Huang
Ms Li Chen
Mr Zile HuangCASE NUMBER: 2108508
HOME AFFAIRS REFERENCE(S): BCC2021/1157490
MEMBER:Vanessa Plain
DATE:8 December 2021
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 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Statement made on 08 December 2021 at 12:33pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – occupation of Supply and Distribution Manager – working only in the nominated occupation – site visit to the premises – applicant working in another section part-time – assistance visit to a client – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 8, Condition 8607; r 2.89CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 30 June 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant has not complied with condition 8607 imposed upon his visa. The dependant applicants’ visas were cancelled as a consequence of the cancellation of the primary visa holder. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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.
The applicants were invited to appear before the Tribunal on 3 November 2021 to give evidence and present arguments. The applicants submitted a number of documents to the Tribunal in advance of the hearing and on the basis of the evidence submitted, the Tribunal informed the applicants that it would deliver a decision “on the papers.”
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
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?
The Delegate’s decision record contends that the applicant has not complied with subclause (1) of condition 8607 attached to their subclass 482 (Temporary Skill Shortage) visa, which states:
“8607
(1) The holder must work only in the occupation (the nominated occupation) nominated by the nomination identified in the application for the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder.
The Delegate’s decision record of 30 June 2021 provides as follows:
“On 27 June 2019, SUCCESS LOGISTICS AUSTRALIA PTY LTD, received approval to nominate the visa holder to work in the occupation of Supply and Distribution Manager (Australia and New Zealand Standard Classification of Occupations (ANZSCO) code 133611). Following the approval given to SUCCESS LOGISTICS AUSTRALIA PTY LTD, and having met the relevant criteria, the visa holder was granted a Temporary Skill Shortage visa on 03 July 2019.
On 16 October 2019, the Australian Border Force (ABF) commenced a monitoring audit of the visa holder’s employer, SUCCESS LOGISTICS AUSTRALIA PTY LTD, in respect of their sponsorship obligations. Among the sponsorship obligations is the requirement to ensure that the visa holder, as the primary sponsored person, works only in the nominated occupation as per regulation 2.89 of the Migration Regulations 1994.
On 18 February 2020, ABF officers conducted a site visit to the premises of SUCCESS LOGISTICS AUSTRALIA PTY LTD. After their investigations, the ABF issued a Notice of intention to Take Action to SUCCESS LOGISTICS AUSTRALIA PTY LTD on 14 May 2021 regarding its obligations as a standard business sponsor. The ABF identified the following concerns:
The visa holder was not identified on any staff lists pertaining to the employees of
SUCCESS LOGISTICS AUSTRALIA PTY LTD;
The visa holder did not have access to the licenced area of the depot, which is critical to the role of a Supply and Distribution Manager;
On a subsequent site visit to company AGL LOGISTICS PTY LTD on 08 May 2020, the visa holder was onsite and stated to ABF officers that he was working for this company in the warehouse one to two days a week. It was noted that on 11 February 2020 during a site visit to a separate company, ADSM PTY LTD, the visa holder signed the visitor log as a representative of AGL; and The emails that the visa holder appears to have sent, as evidence of working in his
nominated occupation, did not satisfy the ABF that the visa holder was working for
SUCCESS LOGISTICS AUSTRALIA PTY LTD.
The visa holder was not identified on any staff lists pertaining to the employees of
SUCCESS LOGISTICS AUSTRALIA PTY LTD;
The visa holder did not have access to the licenced area of the depot, which is critical to the role of a Supply and Distribution Manager;
On a subsequent site visit to company AGL LOGISTICS PTY LTD on 08 May 2020, the visa holder was onsite and stated to ABF officers that he was working for this company in the warehouse one to two days a week. It was noted that on 11 February 2020 during a site visit to a separate company, ADSM PTY LTD, the visa holder signed the visitor log as a representative of AGL; and The emails that the visa holder appears to have sent, as evidence of working in his
nominated occupation, did not satisfy the ABF that the visa holder was working for
SUCCESS LOGISTICS AUSTRALIA PTY LTD.”
Based upon the information set out above, it appeared to the delegate that the applicant had not complied with subclause (1) of visa condition 8607.
A Notice of Intention to Consider Cancellation dated 17 June 2021 (NOICC) was sent to the applicant at their nominated address. The applicant provided a response to the NOICC dated 24 June 2021. The applicant did not agree that there were grounds for cancellation. The delegate summarized the applicant’s response to the NOICC as follows:
The visa holder stated his position in Success Logistics Australia (SLA) is genuine, and he
was involved in its creation in 2009. The visa holder submits he was a Director and held
40% of company shares before selling them in 2014 due to family reasons.
The visa holder stated, “before [he] had [his] 457 visa, [he] come (sic) to Australia all on
[his] business visit (sic) visa to have meetings with Success Logistics Australia and clients.”
The visa holder stated that he and current Director Jinglong LI (Jackie), created SLA
together and has “contribute (sic) a lot to SLA success”.
The visa holder takes care of the supply and logistics side of work and Jackie concentrates
on expanding the business.
The visa holder submits that he does not have many records to demonstrate working
because “this is how Chinese work”, and make decisions during ‘dinner, meetings and on
the phone. ‘
The visa holder states he does not work for AGL Logistics and “has no need to work for
AGL”.
The visa holder submits that he was asked by the Director of AGL to assist in an audit at
AGL’s new Melbourne office, on the day that the ABF conducted the site visit.
The visa holder submits he does not remember what he said to the ABF, however it “would
be a wrong way to communicate from me but not literal meaning (sic)”. The visa holder
stated he is aware that his visa does not allow him to work for another company and “how
can [he] be so stupid to tell (sic) government official that [he] am (sic) work there”.
On 22 November 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 3 December 2021. The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case.
The applicant provided the following documents to the Tribunal:
(a)The delegate’s decision record
(b)Written submissions of the migration agent
(c)Signed statement of the primary applicant
(d)Signed statement of Mr Walter Wang, director of AGL Logistics
(e)Letter of reference from AGL Logistics
A review of the decision records establishes that the visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that the primary applicant had not complied with a condition of their visa. Specifically, the 8607 condition to which their visa was subject, prescribes in 8607(1) that, the visa holder must work only in the occupation (the nominated occupation) nominated by the nomination identified in the application for the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder.
If satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
The delegate formed the view that the applicant was working for AGL Logistics Pty Ltd instead of Success Logistics Australia Pty Ltd and on that basis was in breach of his visa condition.
The Tribunal however has the benefit of the signed statement of Walter Wang, director of AGL Logistics Pty Ltd, dated 30 November 2021. The letter provides, among others, as follows
“I have known Mr Huang for many years as an industry acquaintance. Mr Huang is a competent industry professional and we became aa client of his employer, Success Logistics Australia Pty Ltd due to his business development.
I provided a letter in May 2021 to confirm that Mr Huang did not work for our company and I wish to confirm this again in this letter. We were simply getting Mr Huang’s assistance in initially setting up our bond warehouse in Melbourne in Jan 2020.”
Based on the new evidence of Mr Huang, for which the Tribunal has no reason not to accept as truthful, the Tribunal finds that the applicant has not worked for AGL Logistics Pty Ltd, at best, he has merely volunteered his time for which he has clearly not been remunerated and on that basis, the Tribunal is satisfied that he has complied with complied with condition 8607(1) at all material times.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Vanessa Plain
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Natural Justice
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