Huang (Migration)

[2019] AATA 5763

Huang (Migration) [2019] AATA 5763 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ping Huang
Mrs Hengbin Zhou
Mr Shichen Huang

CASE NUMBER:  1912946

HOME AFFAIRS REFERENCE(S):          BCC2019/667521

MEMBER:Jennifer Cripps Watts

DATE:28 August 2019

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 28 August 2019 at 5:40pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled) – Massage Therapist – applicant not on premises during Australian Border Force site visit – sick leave – evidence of employment provided – credible witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations (Cth) 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 21 May 2019 made by a delegate of the Minister for Home Affairs (the delegate) 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 had not complied with a condition of the visa because the delegate was not satisfied that the applicant was working in the occupation listed in the most recently approved nomination for the business of the sponsor. 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 applied for review on 24 May 2019 and provided the Tribunal with a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal on 22 August 2019 to give evidence and present arguments. 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.

   Background

9. The applicant was granted a Subclass 457 visa on 26 October 2016 on the basis of a related approved nomination by L & Z Restore Massage Pty Ltd at Chatswood (the sponsor).

10. During an unannounced ABF site visit, the applicant - who was supposed to be working for the sponsor full time, five days a week, Monday to Friday – was not on the premises.  The ABF officers spoke to some of the employees who were present and were told that the applicant was not there because he was off sick that day.  It is noted in the delegate’s decision that concerns were held by ABF about the credibility of the other employees that they spoke to during the site visit.

11. After the site visit on 26 October 2016, the sponsor was issued with a notice and invited to comment on the concerns of the ABF officers.  The sponsor responded saying that their nomination relating to the applicant had been approved on 19 February 2016 and that the applicant had worked at the premises full time in the approved nominated occupation of massage therapist since then.  The sponsor also provided evidence of wages paid to the applicant.  ABF, on the basis of their concerns that the employees they spoke to seemed unable to recognise the applicant from photographs they were shown, formed a view that the sponsor had ‘created the appearance of the visa holder’s employment there’.  This information is contained in the delegate’s decision. 

12. On 15 April 2019 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) and invited to respond, which he did, on 16 April 2019.  The applicant’s response included his raising a series of somewhat aggressive questions.  He did not, however, as he had been invited to do, directly address the reasons given in the NOICC by way of offering any explanation as to why he thought the other employees did not recognise him from a photograph, why he was not present at the business on the day of the site visit or why his visa should not be cancelled.  The delegate considered the response and decided, on the information it had at the time, justifiably in the Tribunal’s view, that the ground for cancellation was made out.  The delegate considered discretionary matters and found that they did not weigh in favour of not cancelling the visa.  That decision was made on 21 May 2019. 

13. The Tribunal has now had the benefit of speaking to the applicant in person and reviewing his matter de novo, which included having regard to additional documentary and oral evidence in support of his submissions and claim that he works full time for the sponsor in the nominated occupation of massage therapist.

    Does the ground for cancellation exist?

14. 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)(a)(ii) attached to the applicant’s visa. This condition requires that the applicant must work only in the occupation listed in the most recently approved nomination in the business of the sponsor or an associated entity of the sponsor.

15. The applicant’s Subclass 457 visa relating to the approved nomination by the sponsor was cancelled because the delegate, relying on information provided by ABF and the applicant’s response to the NOICC, was satisfied the applicant had not complied with condition 8107(3)(a)(ii)(B). 

16. When preparing for the review, on 28 June 2019, the Tribunal wrote to the applicant requesting that he provide additional information, including pay slips, an employment contract and other documents as evidence of his employment with the sponsor.  The additional documents were provided together with some additional ones.  Of significance, in the Tribunal’s mind, and to which substantial positive weight has been given, are:

    a.A letter from Medibank dated 8 June 2018, confirming the applicant’s application to become a Medibank Recognised Provider of Remedial Massage, approving the application effective 4 June 2018 and issuing a Provider number (A107101F) and the trading address (G058, Chatswood Chase, 345 Victoria Avenue, Chatswood);

    b.Receipts for massages at L & Z Massage Chatswood, under the Medibank provider number granted to the applicant covering the date range August through to October 2018;

    c.Bank statements and PAYG summaries; and

    d.References from the applicant’s customers or clients who attend the sponsor’s premises in Chatswood to have massages by the applicant.

17. The applicant came across at the hearing as credible and has provided the Tribunal with some fairly persuasive documentary evidence that gives weight to his claim that he in fact does work full time for the sponsor in the nominated occupation.  In addition, people the applicant claimed to be his clients, and who provided written letters of support, were called by the Tribunal, without notice, to confirm that they know the applicant and receive massages from him at the shop in Chatswood Chase.  The Tribunal gives credit to both the documentary and oral evidence provided by the applicant’s clients.  At the request of the applicant, the Tribunal also phoned the sponsor’s authorised person (the owner of the business), Ms Fang (Janet) Zheng, and was satisfied that the oral evidence she gave corroborated the claim by the applicant that he works full time as a massage therapist at her business, L & Z Restore Massage Pty Ltd, in Chatswood, especially when considered cumulatively with the other evidence provided that the Tribunal has accepted as reliable. 

18. The Tribunal has given significant weight, individually and cumulatively, to the additional documents provided and the spontaneous oral evidence from people who provided written references and who the Tribunal is satisfied are some of the applicant’s clients.

19. The Tribunal hearing was held over a period of more than two hours during which time evidence was taken mainly from the applicant, in addition to a few phone calls to his referees and witness, Ms Zheng, and the Tribunal is satisfied that all relevant facts and matters were put to him and that detailed and credible information was given.

20. On the evidence, the Tribunal is satisfied that the applicant has worked only in the occupation listed in the most recently approved nomination by the sponsor who was approved as a standard business sponsor 26 October 2015.  An Australian Business Register search by the Tribunal indicates that the sponsor, L & Z Restore Massage Pty Ltd, ABN 38 606 523 460, is an Australian Private Company that was registered and has been active from 18 June 2015.  

21. For the reasons given, 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.

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

    DECISION

23. 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.

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

    Jennifer Cripps Watts
    Member