Huang (Migration)

[2020] AATA 3405

Huang (Migration) [2020] AATA 3405 (17 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kongjun Huang
Mrs Qiujin Huang
Mr Haoyu Huang

CASE NUMBER:  1926570

HOME AFFAIRS REFERENCE(S):          BCC2019/2876759

MEMBER:John Cipolla

DATE:17 August 2020

PLACE OF DECISION:  Sydney

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 17 August 2020 at 1:23pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – commence work within 90 days of entering country – no contact from or to sponsoring company, no work for any employer and no approach to department – discretion to cancel visa – young child’s schooling – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140

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

CASES

Rani v MIMA (1997) 80 FCR 379
Tien 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 12 September 2019 made by a delegate of the Minister for Home Affairs 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. On 28 April 2017 the applicant was granted a Temporary Skilled (Subclass 457) visa from an offshore application. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with the conditions of his visa, namely condition 8107(3)(aa)(i) which requires that the applicant, having been granted the visa outside the migration zone, commence work within 90 days of entering the country. 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. On 06 August 2019 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC). The delegate noted that the applicant had arrived in Australia on 16 May 2017 and that on 27 November 2017 they had been issued with a warning letter for not commencing work with the sponsor, Rock Build Developments Pty Ltd, and on 01 February 2018 the sponsor terminated the applicant’s employment for “not commencing duties following entry into Australia”. The applicant was informed that this was in contravention of condition 8107 of their visa and that this information may form part of the reason for cancelling their visa and the applicant was invited to comment.

4. The applicant responded to the concerns raised in the NOICC on 21 August 2019. He disagreed that there were grounds for cancellation, stating that the claim that the sponsor had terminated his employment was incorrect, that he paid $100,000 AUD to obtain his visa and was told on arrival in Australia that he now had no job due to ‘the depression in the construction industry’ and that he had since found a potential new sponsor P&Y Group P/L.

5. In a decision made on 12 September 2019 the delegate determined that the grounds for cancellation were made out, based on the information before the Department, and then proceeded to determine whether the applicant’s visa should be cancelled having regard to the relevant discretionary factors. When considering the purpose of the applicant’s travel to and stay in Australia, the delegate noted that the purpose of the visa was to fill a temporary skills shortage, and that the applicant did not fill this shortage within 90 days of entering Australia as required by the conditions of his visa and that the purpose of the visa ceased at that point. Significant weight was given in to this consideration in favour of cancellation of the visa. With regard to the extent of the applicant’s compliance with visa conditions, the delegate noted that the applicant had violated no further conditions of his visa beyond the breach of condition 8107 and only gave a little weight to this consideration against cancellation. It was noted by the delegate that the cancellation would have negative effects on the applicant’s family, who would have to return to China, and some negative effects on his son specifically due to the fact he had been engaged in the education system in Australia since the family arrived in Australia, and gave a little weight to this consideration against cancellation. The delegate touched on the circumstances in which the ground for cancellation arose, noting that the applicant arrived in Australia and did not commence work for his sponsor within 90 days and did not secure a new sponsor, and was not subject of an approved nomination by the time the NOICC was issued, and afforded some weight to this consideration in favour of cancelling the visa. The delegate observed no discrepancies in the applicant’s documented interactions with the Department, giving a little weight to this consideration against cancellation. With regard to the legal consequences resulting from cancellation, the delegate found that the applicant would be subject to s189/s198 provisions leading to the potential for detention and removal from Australia, and also s48 leading to a prohibition on applying for certain visas whilst in Australia. The delegate gave a little weight to this consideration against cancellation of the visa. The delegate gave additional consideration as to whether the cancellation of the visa would adversely affect the applicant’s child having regard to the Convention of the Rights of the Child (CRC), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the International Covenant on Civil and Political Rights (ICCPR). The delegate acknowledged the importance of maintaining the family unit and suggested that the applicant’s son may not maintain the same privileges if moved back to his home country, and that some educational disadvantage may be incurred as a consequence. The delegate also noted, however, that this was not an uncommon concern among families moving in between countries, and that the applicant had made the conscious decision to come to Australia and work on a temporary visa for 4 years. A little weight was given to this consideration in favour of the applicant. After cumulatively considering all the factors at hand the delegate determined that greater weight be given to the cancellation of the applicant’s visa.

6. 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.

7. The applicant appeared before the Tribunal via teleconferencing facilities on 12 August 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. At the outset of the review hearing the Tribunal went into significant detail about the respective issues in review and about the review process. For the benefit of the applicant the Tribunal also explained how the now obsolete Subclass 457 visa operated and that it existed to serve Australian employers and businesses to meet skills shortages in defined occupational groups by enabling Australian businesses to employ an overseas worker for a finite period.

9. The Tribunal noted that the applicant had been served with a NOICC dated 6 August 2019. The Tribunal noted that the applicant sought an extension of time to provide a response to the NOICC. This was duly consented to, and the applicant provided a response to the Department on 21 August 2019.

10. The Tribunal asked the applicant for his personal details and date of birth. The Tribunal asked the applicant what he did for work in China, prior to arriving in Australia in May 2017. The applicant stated that he undertook labouring jobs in the construction industry. The Tribunal asked the applicant how he heard about the 457 visa program and what his understanding of the visa was. The applicant stated that he made an application for a 457 visa so that he could make more money than he was able to in China. The Tribunal asked the applicant whether it was a permanent visa or a temporary visa and the applicant advised that a 457 visa holder was only able to stay in Australia for a limited time.

11. The Tribunal asked the applicant for the name of the company that he was expected to work for. The applicant stated that when he arrived in Australia, he was awaiting instructions from the company, but he could not remember the name of the company or what his role would be. The applicant stated that he never received a warning letter from the company and did not know about it. The Tribunal confirmed with the applicant that he had received the NOICC which spelt out in detail the respective grounds for cancellation and that he had responded to it, and the applicant confirmed this.

12. The Tribunal asked the applicant why he would travel to a strange country with his wife and young child if he did not know the name of the business that was going to employ him or what he was going to do. The Tribunal asked the applicant what probity checks he made about his prospective employer before he departed China. The applicant stated that he checked whether this was a legal business and noted that because this business had sponsored him to come to Australia, he trusted the company.

13. The Tribunal asked the applicant which city he arrived in. The applicant advised Sydney where he continued to reside.

14. The Tribunal asked the applicant what checks he undertook after arriving in Australia to locate his sponsoring company to ascertain when he would commence working for them. The applicant stated it was very hard for him after he arrived in Sydney. He advised that he was waiting for the company to contact him. The Tribunal asked the applicant how the company would be able to make contact, the applicant stated that they would have had his mobile phone number. The Tribunal asked the applicant whether he had any contact details, such as a mobile number, for the company and he advised that he did not.

15. The Tribunal advised that he could not understand why the applicant would not arrive in Australia with the name of the company, a contact name within the business and relevant mobile and landline numbers for the company before he departed China. The applicant was invited to comment on this. The applicant stated that when he was in China, he had no idea about this. The applicant stated that when he arrived in Australia if he knew the contact details of the sponsoring business, he would have contacted them.

16. The Tribunal asked the applicant whether he had ever worked for Rock Build Developments Pty Ltd as a bricklayer and he advised that he did not, because they have not provided a job to him. The Tribunal asked the applicant whether he had ever worked in Australia, and he advised he had not. The Tribunal asked the applicant how he had survived in Australia since May 2017, if he had never worked, noting that he was residing in the most expensive city in Australia that being Sydney. The applicant stated that before he came to Australia, he had cash and had also borrowed money from friends. The applicant stated that his wife worked casually to support the family as a kitchen hand.

17. The Tribunal noted the applicant’s evidence that the main reason that he travelled to Australia was to make more money in this country. The Tribunal noted the applicant’s evidence that he had not worked in Australia since his arrival in May 2017 and that his wife only worked casually as a kitchen hand in Australia. The Tribunal asked the applicant whether he made more money working in China than had been generated by his wife’s casual work in Australia. The applicant stated that if he and his wife were in China, they would both be working, and they would have more earnings than they did in Australia.

18. The Tribunal asked, given that fact that the applicant had not been able to work in Australia, and that his wife only worked casually, why the family had not returned to China. The applicant stated because his young son was studying in Australia in English and that he would struggle if he returned to China.

19. The Tribunal noted the applicant’s evidence to both the Department and the Tribunal that a reason for not cancelling his visa would be the impact on his son’s study.  The Tribunal again noted that Subclass 457 visa was a temporary visa. The Tribunal asked the applicant what made him believe that his son could study in Australia for an extended period if the visa was only for a finite period of time. The applicant was invited to comment on this. The applicant stated that he knew that the visa was valid for four years. The applicant stated that his son had studied in Australia since year one at primary school. The applicant then stated that he should be able to continue to study. The interpreter advised the Tribunal that part of the applicant’s answer were nonsensical. The Tribunal asked the applicant to clarify his answer. The applicant advised that he did not wish to answer this question further.

20. The Tribunal asked the applicant when he arrived in Australia in May 2017, and there was no company to work for, why he did not attend the Department and ask for assistance and advice. The applicant stated that during that period he was very new in Australia and did not know what to do.

21. The Tribunal asked the applicant what hardship he would experience if his visa was cancelled and the family had to return to China. The applicant stated there would be hardship, especially to his son, because he would not be able to continue to study. The applicant stated that he had wasted his time in Australia. The Tribunal noted the applicant’s evidence that he had a mortgage in China and asked whether he retained property in China and the applicant confirmed that he did.

22. The Tribunal asked the applicant whether there were any other reasons he wished the Tribunal to consider as to why his visa should not be cancelled. The applicant stated that he did not receive the warning letter from the employer. The Tribunal noted that references to the warning letter were made in the Departmental decision record cancelling the applicant’s visa. The Tribunal noted that the applicant provided a copy of that decision record to the Tribunal at merits review. The Tribunal noted that the decision record indicated that on 27 November 2017 the sponsoring business issued the applicant with a warning letter for not commencing work with them. Further to this that on 1 February 2018 the sponsor formally ceased the applicant’s employment with them. The applicant again stated that he never received the warning letter and that he did not receive anything until August 2019 when he received the NOICC. The Tribunal confirmed again with the applicant that he had received the NOICC and responded to it, and the applicant confirmed that he had received it and responded to it.

23. The Tribunal stated it was difficult to accept that the applicant would uproot his wife and young child from China, arriving in Australia in May 2017 and not engage in any work since that time. The Tribunal stated that it found it difficult to accept that the applicant would sit around and do nothing until August 2019 without approaching the Department to seek advice or clarification about his circumstances. The applicant was invited to comment on this. The applicant stated that there was no work available to him.

24. The Tribunal asked whether there were any further reasons that he wanted the Tribunal to consider with regard to not cancelling his visa, the applicant stated there were not and the hearing concluded.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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?

27. 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.

28. The applicant’s employer notified the Department that the applicant never commenced employment with them after he arrived in Australia.  At hearing the applicant confirmed that he arrived in Australia in May 2017 and that he never commenced work for his sponsoring employer.

29. 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

30. 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.

31. The Tribunal discussed with the applicant at hearing the purpose for his travel to and stay in Australia. With regard to his travel history to Australia the applicant advised the Tribunal that he and his wife and child relocated to Australia from China in May 2017 with the applicant holding a Subclass 457 visa and expecting to work for four years as a bricklayer with a business called Rock Build Developments Pty Ltd.  The applicant gave evidence at the review hearing that he never commenced work with any employer after his arrival in Australia and the applicant claims to have never worked in Australia since his arrival in May 2017.  The evidence of the applicant is that he has survived in Sydney, for in excess of 3 years, on savings he brought to Australia with him from China, from loans from friends and his wife obtaining casual work from time to time as a kitchen hand. As noted, the evidence indicates that since the time of the applicant’s arrival in Australia in May 2017, he has not undertaken work for his sponsoring employer as a bricklayer and has according to his evidence not worked at all. The applicant has never approached the Department to query his circumstances after no work was made available to him with the sponsoring employer after his arrival in Australia or indeed since that time. The Tribunal gives this consideration significant weight in favour of the visa cancellation.

32. The Tribunal discussed with the applicant compliance with visa conditions. The evidence of the applicant was that he never commenced work with his sponsoring employer and as noted he never approached the Department to discuss his change of circumstances when no bricklaying job with his sponsoring employer was available to him in Australia. The Tribunal discussed with the applicant the operation of condition 8107 and that the evidence before the Tribunal indicated that the applicant did not comply with the requirements of that condition which stipulated that if he must commence work with his sponsoring employer within 90 days. This had clearly not transpired, and the Tribunal gives this consideration significant weight in favour of visa cancellation.

1. The Tribunal discussed with the applicant at hearing the hardship that may be caused to the applicant, his wife and young son as a consequence of the cancellation of his visa. The applicant stated that his son commenced primary school studies in Australia in year 1, studies undertaken in English, and that it would be difficult for his son to re-engage with education in China.  

2. The Tribunal asked the applicant, that given his aim in coming to Australia was to make more money than he could in China, and given he had not worked, whether this objective had been realised.  The applicant advised that he and his wife could make more money in China and the applicant advised he owned property in China. As has been noted the applicant applied for a Subclass 457 visa to enable him to work for an Australian business as a bricklayer in order to address a skills shortage in that occupation.  As has further been noted the applicant did not approach the Department when he learned that there was no work for him as a bricklayer in Australia to report his change of circumstances since the time that he arrived in May 2017. The evidence provided by the applicant was that he has not worked in Australia and that his wife had undertaken work on a casual basis as a kitchen hand.

3. The Tribunal notes that the grant of a Subclass 457 visa is temporary in nature for a finite period of four years and that there may be a prospect beyond that visa of permanent residence, but this is not guaranteed. The Tribunal notes that the cancellation of the applicant’s visa for breach of condition 8107 as a consequence of never commencing work for his nominating business, is a factor that lends weight to the cancellation of the applicant’s visa.

4. With regard to the circumstances in which the ground for cancellation arose the Departmental delegate noted that the evidence before them indicated that the sponsoring employer had notified the Department that the applicant never commenced employment with his sponsoring employer after arriving in Australia in May 2017 and formally terminated this employment in February 2018.

5. The evidence before the Tribunal indicates that the applicant, despite not being engaged in work by his sponsoring employer, never approached the Department in an attempt to regularise his immigration status. The applicant did respond to the NOICC. Having regard to the applicant’s past and present behaviour towards the Department the applicant has never approached the Department with regard to his changed circumstances after arriving in Australia and that this continued for over 2 years until such time as the applicant was served with a NOICC in August 2019 and the Tribunal gives this consideration weight in favour of visa cancellation.

6. The Tribunal notes that the applicant has a wife and a young son who are both secondary visa holders. The evidence, as noted indicates that the applicant’s wife has been working casually as a kitchen hand working in Australia.  The applicant’s son has undertaken primary school studies in Australia commencing in year 1 and has continued with these studies for the past 3 years. The Tribunal notes that the applicant’s visa was temporary in nature and that the cancellation of his visa will lead to the consequential cancellation of his wife and son’s visas and their prospective removal from Australia.  The Tribunal has had regard to the Convention of the Rights of the Child (CRC). The Tribunal notes that a fundamental objective of the CRC revolves around the preservation of the family unit. The Tribunal acknowledges that the cancellation of the applicant’s visa will lead to the family having depart Australia for their home country of China. The Tribunal notes that the applicant’s son’s education in Australia was temporary in nature, as evidenced by the visa type, and that when the family returns to China he will be able to resume studies in his home country. The Tribunal notes this will have a temporary impact on the applicant’s son.  Having regard to the consequential cancellation of the secondary visa applicants visa the Tribunal gives this consideration a little weight against cancelling the visa.

7. The Tribunal has had regard to the fact that the applicant may be liable to be detained under section 189 of the Migration Act or indeed removed under section 198 of the Migration Act and that he will be subject to section 48 of the Migration Act limiting his options to apply for further visas to Australia. The Tribunal gives this consideration little weight against visa cancellation.

8. There is no evidence before the Tribunal that would indicate that Australia would be in breach of its non- refoulement obligations if the applicant was removed from Australia. The Tribunal gives this consideration weight in favour of visa cancellation.

9. The Tribunal has considered all of the relevant discretionary considerations 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 never commenced working for his sponsoring employer after he arrived in Australia in February 2017. The Tribunal having regard to the relevant discretionary considerations finds when those considerations are cumulatively considered that the applicant’s visa in the circumstances of this case should be cancelled.

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

    DECISION

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

12. The Tribunal has no jurisdiction with respect to the secondary visa applicants.

    John Cipolla
    Senior Member