Huang (Migration)

[2020] AATA 2382

Huang (Migration) [2020] AATA 2382 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daochen Huang
Ms Yanning Yu
Master Mingzhe Huang
Miss Siqi Huang

CASE NUMBER:  1925490

HOME AFFAIRS REFERENCE(S):          BCC2019/2896879

MEMBER:John Cipolla

DATE:23 March 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 23 March 2020 at 8:26am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – employment with sponsor ceased over 60 days – position of bricklayer – nominated position not available upon arrival – applicant denied work due to poor English – claims of erroneous advice from migration agent – closure of the 457 program – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, 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 10 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 27 April 2017 the applicant was granted a Subclass 457 Temporary (Skilled) visa. On 10 September 2019 the delegate cancelled the visa under s116(1)(b) of the Migration Act on the grounds that the applicant had not complied with condition 8107(3)(b) of the visa which specifies that following cessation of employment with the sponsor the visa holder not pass a period of greater than 60 consecutive days without employment. In the Notice of Intention to Consider Cancellation (NOICC) dated 08 August 2019 the delegate advised the applicant that information received from the sponsor indicated that the applicant had ceased employment with the sponsor ‘Rock Build Development Pty Ltd’ on approximately 19 January 2018, and that there was no suggestion that the applicant had since obtained new employment. The applicant was informed that this may form part of the reason for cancellation of their visa and was invited to comment.

3. On 12 August 2019 the applicant responded to the NOICC, stating that following the grant of the visa and his arrival in Australia on 22 May 2017 he was directed by his migration agent to ‘take a rest’ and that he could start work after 3 months. The applicant indicated that following this three month period he was told he could not work for the sponsor as he did not speak English.  The applicant has never worked in Australia.

4. On 10 September 2019 the delegate cancelled the visa, having taken into account a number of discretionary factors. When looking at the purpose of the visa holder’s stay in Australia, the delegate considered the visa applicant’s claim he was denied employment due to his poor English language skills, but further noted that the applicant did not hold a current nomination and had actually been paid five times by his employer and therefore attributed this factor significant weight in favour of cancelling the visa. When looking at the extent of compliance with visa conditions, the delegate found that the visa holder had ceased employment for a period of greater than 60 consecutive days thereby breaching condition 8107(3)(b) attached to his visa and that this weighed significantly in favour of cancelling the visa. In consideration of potential hardship caused by the cancellation, the delegate noted that this may have a negative effect on the applicant’s three dependent family members and gave this consideration some weight against cancelling the visa. With regard to the circumstances in which the grounds for cancellation arose the delegate again observed the 60 consecutive days in which the holder had remained unemployed in breach of condition 8107 and the applicant’s assertions that he had been denied work due to poor English along with the contrary evidence demonstrating that the holder had been paid five times, which the delegate concluded weighed significantly in favour of cancelling the visa. The delegate noted that there was no evidence that the applicant had been uncooperative in their dealings with the Department, and that consequential cancellations would follow the cancellation of the applicant’s visa, and lent some weight to the applicant in favour of these factors. The delegate further assessed that standard legal consequences by virtue of s48 and s189/s198 of the Migration Act being and had regard to the Convention for the Rights Of the Child (CROC) which due to the applicants children led to some weight against cancellation of the visa.

5. 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.

6. The applicant appeared before the Tribunal on 19 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. 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.

8. The applicant provided his personal details. The Tribunal asked the applicant when he first arrived in Australia and he advised in May 2017. The Tribunal asked the applicant what sort of visa he travelled to Australia on and he advised a Subclass 457 visa that he had applied for from overseas in China.

9. The Tribunal asked the applicant the name of the business/sponsor that had nominated him to work as a bricklayer in Australia. The applicant stated that as the 457 visa had been organised through an agent in China and that he did not know the name of the business. The Tribunal noted that this appeared to be odd and that the agent that had obtained a 457 visa on their client’s behalf would have written to a client to advise the details of the sponsoring employer, including the name of the employer and the address of the employer. The Tribunal asked the applicant why he would leave China with his wife and two dependent children without this level of information. The applicant stated “the agent was from my home town and I had the number of the agent.”

10. The Tribunal asked the applicant when he arrived in Australia in May 2017 what he expected would happen as the holder of a Subclass 457 visa. The applicant stated “I was not sure whether there would be work.” Once again the Tribunal asked the applicant what he expected would happen upon his arrival in Australia as the holder of a 457 visa. The applicant stated that he did not understand.

11. By way of example the Tribunal stated that if the Tribunal Member was to relocate from Australia to China with his wife and children he would want to make sure that there was a job to go to and would check on the existence of business and the prospective occupational position prior to departing Australia. The Tribunal asked the applicant what he did to ascertain the legitimacy of the sponsoring business and to ensure that there was a paid job to go to when he arrived in Australia. The applicant responded “you mean when I left China.”

12. The Tribunal noted that the applicant in his evidence advised that he had applied for a Subclass 457 visa in China to work as a bricklayer in Australia and the Tribunal asked the applicant what happened when he arrived in Australia. The applicant stated that he was prepared to work for a company as a bricklayer. The Tribunal asked the applicant whether he had worked in Australia in any capacity since his arrival in May 2017 and he advised that he had not.

13. The Tribunal asked the applicant for the current ages of his two children and he advised that they were aged 13 and 11. The Tribunal asked the applicant whether his wife had worked in Australia in any capacity. The applicant stated that his wife had undertaken some casual work before the cancellation of the visa namely waitressing in a restaurant.

14. The Tribunal asked the applicant whether he had lived in Sydney since his arrival in May 2017 and the applicant confirmed that he had. The Tribunal noted that Sydney was an expensive city to reside in. The Tribunal asked the applicant whether he had rented accommodation and the suburbs that he had lived in. The applicant stated that he had initially rented in Campsie and more recently Burwood in Sydney paying $300 per week in rent. The Tribunal noting that the applicant had not worked since his arrival in May 2017 and that his wife had only undertaken some casual waitressing work asked the applicant how he was surviving financially and supporting his family unit. The applicant stated that he had brought some money to Australia with him and was also obtaining some financial help from friends.

15. The Tribunal asked the applicant when he realised that there was no work available to him and indeed no sponsoring business in Australia why he would not return to China with his family. The applicant stated “if there was no work I wanted to find out why.” The Tribunal asked the applicant what enquiries he had made about this. The applicant stated that he had a relative in Australia who was studying and that he asked her to help him to apply for something. The Tribunal sought clarification of this answer and the applicant advised assistance in applying for review before the Tribunal.

16. Once again the Tribunal advised the applicant by way of example that if the Tribunal Member was travelling to China to undertake paid work with his wife and two children that he would want to make sure that there was a job to go to otherwise he would not leave Australia. The Tribunal asked the applicant whether his objective in travelling to Australia was to attempt to find permanent residence in this country and the applicant stated that it was not.

17. The Tribunal asked the applicant what he had been doing in Australia since arriving in May 2017 and whether he felt that he had been wasting his time given that there was no paid work for him to undertake. The applicant stated that he was told by the agent that he had engaged to obtain him a 457 visa that when he arrived in Australia he could rest for three months. The Tribunal noted that the applicant appeared to be a victim erroneous advice from the agent he had engaged to obtain the visa. The Tribunal asked given this, why, he had not reported the agent to the Department or contacted the Department to clarify his immigration position in Australia given that there was no paid employment to go to. The applicant stated that he decided to wait until the visa had been cancelled.

18. Noting this evidence the Tribunal asked the applicant on what basis the applicant wanted the Tribunal to consider setting the cancellation aside. The applicant responded ‘how should I answer.”

19. Once again the Tribunal asked the applicant why he and his wife and two children had remained in Australia when there was clearly no paid employment for him in this country as a bricklayer. The applicant stated that he came to work in Australia but the agent had told him that he needed to wait.

20. The Tribunal made reference to the fact that the Subclass 457 visa regime had come to an end on 18 March 2018 and was now an obsolete visa subclass. The Tribunal noted that the applicant had failed to find an alternative sponsoring employer within 60 days of ceasing employment with his sponsoring employer. The applicant confirmed again that he had not worked in Australia since arriving in May 2017.

21. The Tribunal asked the applicant whether his children were attending school in Australia and he advised that they were. He advised that they had been attending school since the family’s arrival in May 2017. The Tribunal stated that the evidence before it seemed to suggest that the applicant was looking for a way to permanently reside in Australia and once again the applicant stated that he was not.

22. The Tribunal asked the applicant whether he had plenty of work in China prior to his departure as a bricklayer and the applicant confirmed that he did. The Tribunal noting this asked the applicant why he would not return to China where work was plentiful and why he would decide to remain in Australia when there was no job for him in this country. The applicant stated that when he arrived in Australia he thought he would be able to work and that his children would be able to study. The Tribunal noted that based on the evidence before it, it was clear that this had not worked out as the applicant had expected it to and asked the applicant why, in the circumstances, he had not returned to China and why he had put himself and his family through such suffering. The applicant stated because he had paid the agent money to obtain him the visa. The Tribunal advised the applicant that he should seek some advice about whether there was any potential to lodge a complaint against the agent in China.

23. The Tribunal asked the applicant whether there was any further evidence that he wanted the Tribunal to consider with regard to setting the cancellation aside and the applicant advised that there was not.

24. The Tribunal took evidence from the applicant’s wife Yanning Yu. The applicant’s wife gave her name and date of birth.

25. The Tribunal asked the witness when she and her family first came to Australia and she advised in May 2017. The Tribunal asked the witness what sort of visa the family travelled to Australia on and she advised that her husband had been granted a Subclass 457 visa.

26. The Tribunal noted that at the outset of the hearing it had explained in detail the operation of a Subclass 457 visa and the reason for its existence. The Tribunal noted that the applicant would have had an expectation to work for an Australian business for four years in the nominated occupation of bricklayer but it had not turned out like that for her husband. The witness responded ‘what does that mean.”  The Tribunal asked the witness whether her husband had ever worked in Australia since arriving in May 2017 and she advised that he had not. The Tribunal asked the witness whether she had worked in Australia since arriving in May 2017 and she advised that she had undertaken some casual work like cleaning and waitressing. The Tribunal asked the witness the last time she had worked and she advised before the visa was cancelled on 8 August 2018.

27. Noting the fact that the applicant was not working and that the witness had not worked since August 2018 the Tribunal asked the witness how her family was surviving in the circumstances. The witness advised that she had saved something when she was working and that they were deriving support from friends.

28. The Tribunal asked the witness how she expected things to work on a 457 visa in Australia at the time that the family arrived here in May 2017. The witness stated that she and her husband were thinking that the agent had organised an employer for her husband.

29. The Tribunal noting that there was no job for the applicant to go to when he arrived in Australia whether she and her husband discussed reporting the agent and the issue to the Department. The witness stated that she and her husband were not clear about the law and requirements with regard to this. Further to this that she and her husband believed in the agent.

30. The Tribunal asked the witness what checks she and her husband made about the probity of an existing job in Australia prior to relocating with their two children to Australia. The witness stated “we did not really check we were in China and we believed the agent we paid a big amount to for the visa had organised it.” 

31. The Tribunal asked the witness how much she and her husband paid the agent to affect a 457 visa for her husband. The witness advised an amount of RMB 550,000. The Tribunal asked whether this amount could be converted to Australian dollars and the interpreter advised around AU$110,000.

32. The Tribunal noted that this was a lot of money to pay to affect a visa outcome and suggested that the payment of such a large amount of money would warrant probity checks on both the agent and the prospective job that had been lined up for the applicant in Australia. The Tribunal asked the witness what checks she and her husband made prior to the payment of this money. The witness stated that she and her husband did not undertake any checks because the agent was a local agent in China.

33. Once again the Tribunal asked the witness why she and her husband did not report the agent and the fact that there was no job waiting for her husband to the Department, and the witness stated that she and her husband were ignorant of Australian and Chinese law.

34. The Tribunal made reference to the applicant’s evidence that he had plenty of work as a bricklayer in China prior to his relocation to Australia, and noted that the applicants plan to work in Australia had not materialised. The Tribunal asked the witness why given these facts the family did not make a decision to return to China where they had job opportunities and family support. The witness stated that she and her husband had paid the agent in cash and there was no record of the transaction. She advised that she and her husband had sold their house in China prior to their relocation. The witness stated that if she and her family were able to stay in Australia there were great opportunities. The witness stated that she and her husband held the belief that the agent may eventually find work for the applicant.

35. The Tribunal made reference to the fact that the 457 visa subclass ended on 18 March 2018 and noted that her husband had not been able to find a new sponsoring employer since he arrived in Australia in May 2017 and failed to commence work for the sponsoring employer. The Tribunal indicated that the evidence suggested that the applicant and her husband had travelled to Australia hoping for a permanent residence outcome and this was evidenced by the fact that they have sold their house in China and paid a large amount of money for the 457 visa. The witness was invited to comment on this. The witness stated that back then this was not really the plan that the agent had advised them that they would make more money in Australia. The witness stated there was nobody back in China that had the capacity to look after her children and that is why they had to relocate to Australia with her and her husband.

36. The Tribunal asked the witness whether there was any further evidence she wished to provide. The witness advised that she did not. The Tribunal deferred to the applicant and asked the applicant whether there was any further evidence that he wished to provide as to why the visa should not be cancelled and the applicant advised that he had nothing to add.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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?

   Does the ground for cancellation exist?

2. 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 60 days.

3. The applicant’s employer notified the Department that the applicant ceased employment with them effective 19 January 2018.  At hearing the applicant advised that he arrived in Australia in May 2017 and that he never commenced work for his sponsoring employer.

4. 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

5. 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’.

6. 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 family 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 the time of his arrival in May 2017.  The evidence of the applicant is that he paid an agent in China AUD$110,000 in order to secure himself a Subclass 457 visa with his family travelling to Australia as secondary visa applicants namely his wife and two children. As noted the evidence indicates that since the time of the applicant’s arrival in Australia in May 2017 he has not undertaken work of any kind. The applicant has never approached the Department to query his circumstances after no work was made available to him nor has the applicant pursued any action against the agent in China. The Tribunal gives this consideration significant weight in favour of the visa cancellation.

7. The Tribunal discussed with the applicant the extent of compliance with visa conditions. The evidence of the applicant was that he never commenced work with his sponsoring employer and as noted never undertook probity checks prior to relocating from China to ensure that there was a legitimate job available to him as a bricklayer 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 ceased work with the sponsoring employer he had 60 days to find another sponsoring employer. This had clearly not transpired and the Tribunal gives this consideration significant weight in favour of visa cancellation.

8. The Tribunal discussed with the applicant and his wife at hearing the hardship that may be caused to them and their 2 children as a consequence of the cancellation of the applicant’s visa. The applicant has noted along with his wife that they had expended a significant amount of money on the applicant obtaining a 457 visa to work for an Australian business. As has further been noted the applicant and his wife undertook no probity checks of the agent they paid this money to or with regard to the existence of the sponsoring business prior to relocating from China. They did this at their peril. The evidence is that the applicant has not worked in Australia since May 2017 according to his evidence and that his wife had undertaken some casual work up until the point of cancellation. The evidence further indicates that the applicant and his wife sold their residential property in China prior to relocation which suggests that the obtainment of the visa was to access Australia with the hope of finding some pathway to permanent residence a pathway that has not materialised. The Tribunal notes the evidence of the applicant that his two children have been engaged in school since the family relocated to Australia and May 2017 but given their ages being 13 and 11 the Tribunal is of the view that if the family was to relocate to China that they should have no problems re-adapting to the Chinese education system and life in that country.

9. 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 ceasing to work for his nominating business indeed based on his own evidence never commencing work with the nominating business along with the relocation of the family back to China are not factors that lend weight against the cancellation of the applicant’s visa.

10. 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 ceased employment with them on 19 January 2018.  Indeed, the evidence before the Tribunal indicates that the applicant never commenced employment with any nominating employer from the time of his arrival in Australia in May 2017.

11. The evidence before the Tribunal indicates that the applicant despite having no employment upon arriving in Australia in May 2017 or beyond that time never approached the Department in an attempt to regularise his immigration status. The evidence does indicate that the applicant responded to the NOICC in a timely manner. Having regard to the applicant’s past and present behaviour towards the Department he has been somewhat cooperative with the Department and the Tribunal gives this consideration some weight against visa cancellation.

12. The Tribunal notes that the applicant has a dependent wife who is a secondary visa applicant along with two dependent children also secondary visa applicants have been subject to the automatic cancellation of their visas under section 140 of the Migration Act. The Tribunal gives this consideration little weight in favour of visa cancellation.

13. 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.

14. 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.

15. 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 May 2017. The evidence before the Tribunal indicates that in the 60 consecutive days since the cessation of his employment the applicant has not been able to seek alternate employment in any position.  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.

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

    DECISION

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

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

    John Cipolla
    Senior Member