Lau (Migration)

[2019] AATA 3543

Lau (Migration) [2019] AATA 3543 (12 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yin Chun Lau

CASE NUMBER:  1830420

HOME AFFAIRS REFERENCE(S):           BCC2017/2922428

MEMBER:Alison Mercer

DATE:12 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 12 July 2019 at 2:45pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – non-commencement of employment within the prescribed period – Departmental site visit – applicant unknown to employees of nominating employer – employment contract signed by former director without board knowledge or approval – sham employment arrangement – genuine effort to commence employment – non-genuine position – consideration of discretion – purpose of visa not fulfilled – failure to give an accurate account of true nature of employment arrangement – lack of strong ties to Australian community – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 137Q

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 9 October 2018 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.137Q on the basis that the delegate did not accept that the applicant had commenced employment with his sponsoring employer within the 6 month period after being granted his visa, nor that the applicant had made genuine attempts to do so. The delegate found that this established a ground for cancellation. The delegate then considered a range of factors set out in the Department’s guidelines before determining that the correct and preferable decision was to cancel the applicant’s visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 11 June 2019 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s migration agent, Mr William Markwell. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages, although the Tribunal notes that the last 40 minutes of the hearing was conducted without an interpreter, as the interpreter had to leave to attend another booking. The applicant was asked if, under the circumstances, he was happy to proceed with the remainder of the hearing without an interpreter. He was given the alternative choices that the Tribunal could attempt to find a telephone interpreter for the remainder of the hearing, or that another hearing could be scheduled with an interpreter in person on a future date. After consultation with his migration agent, the applicant elected to complete the hearing without an interpreter, having indicated to the Tribunal at the commencement of the hearing that he spoke and understood English and only required the interpreter for complex or unusual communications.

5. Following the hearing, the Tribunal sent the applicant a letter, via his agent, pursuant to s.359A of the Act, inviting him to comment on information held by the Tribunal that was potentially adverse to the applicant’s case. The due date for response was 27 June 2019. Neither the applicant nor his agent provided a response by the due date. Nor did they seek an extension of time to do so.

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

   CONSIDERATION OF LAW, 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 r.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).

8. The applicant falls within the ambit of s.137Q by virtue of having been granted a subclass 187 (RSMS) visa on 31 January 2017.

9. Given the serious nature of the Tribunal’s consideration, it is appropriate to set out the history of this matter in some detail.

   Departmental application

10. The Department’s records indicate that the applicant first arrived in Australia in 2009 as the holder of a student visa. He was granted subsequent student visas until 2016, when, upon completion of a Bachelor of Design (Graphic Design) at Raffles College of Design and Commerce in Sydney, he applied for a subclass 187 (RSMS) permanent residence visa.  The applicant was nominated for this visa by an Australian company, Cinix 1 Pty Ltd, which was based in Brisbane, Queensland (at that time, a designated regional area of Australia). The nominated position for the applicant was that of Graphic Designer.

11. The Department’s records indicate that the applicant was granted a subclass 187 visa on 31 January 2017.

    Notice of Intention to Consider Cancellation (NOICC)

12. The Department’s records indicate that it sent 3 NOICCs to the applicant, one on 20 August 2018 and 2 on 21 August 2018.  The covering email for the third NOICC advises the applicant to ignore the previous 2 NOICCs as they contained incorrect information and/or gave an incorrect date for response. The applicant was advised to respond to the contents and due date of the third NOICC, dated 21 August 2018.

13. Relevantly, that NOICC advised the applicant that the Department was considering cancelling his subclass 187 visa under s.137Q of the Act as it had information that he did not commence the employment referred to in the relevant employer nomination with Cinix 1 Pty Ltd within the period prescribed in the Regulations (that is, 6 months from the grant of his visa, as per r.2.50AA). The NOICC further advised that a site visit was undertaken by Australian Border Force (ABF) officers on 2 August 2017 to Cinix 1 Pty Ltd at 10 Bow Street, Waterford West, Queensland, as this was the employer address the applicant provided in his visa application. However, the ABF found no business was operating at this address. The ABF officers therefore undertook a second site visit on 9 August 2017 to Cinix 1 Pty Ltd’s head office at 15 Ellen St, Logan, Queensland, where the business was found to be operating. The ABF officers spoke to a new director of the company and it was ascertained that the applicant was not working there, and had never done so. The new director advised that he had held that post for 6 months, having replaced the old director, Jacqui.

    The NOICC then stated that when an ABF officer contacted the applicant by telephone on 15 August 2017 about these matters, the applicant responded (in part) that:

    ‘You work for Jacqui at Cinix1.

    When asked for the address you provided a post office box. When asked for a physical address when you said you did not know as ‘I just drive there.’ You stated it was a house, and when prompted, confirmed it was 10 Bow St, Waterford West.

    When advised that no one knows you at Cinix1 and that Jacqui resigned last year, and there is no business at 10 Bow Street, you then stated that you resigned 2 months ago. When questioned why no one knows you at all, you then stated that you worked from home.’

14. The NOICC advised the applicant that the information before the Department indicated that he was not now, nor was he ever, an employee of Cinix1 Pty Ltd, having never commenced employment with them. Therefore, it appeared that there were grounds for cancellation of his subclass 187 visa under s.137Q(1) of the Act. The applicant was invited to make submissions about this issue, including any submissions addressing the reasons why his visa should not be cancelled, within 28 calendar days of receiving the NOICC.

15. On 30 August 2018, the applicant’s registered migration agent emailed the Department to advise of his appointment to act on the applicant’s behalf, and to request to additional time to respond as the agent had just lodged a Freedom of Information (FOI) request to obtain the Department’s file on the applicant.  On 14 September 2018, the applicant’s agent sent another request seeking confirmation of the granting of an extension of time for the applicant to respond.

16. On 19 September 2018, an officer of the Department wrote to the applicant’s agent to advise that, as the applicant had been granted 28 days to respond from 21 August 2018, the officer did not consider the outstanding FOI request a reason to grant any further extension of time to respond. He indicated that he would consider any response received and noted that he would not be in a position to make a decision on the applicant’s case until 26 September 2018.

17. The applicant did not respond within the time frame set out above.

    Cancellation decision

18. On 9 October 2018, a delegate of the Minister made a decision to cancel the applicant’s visa pursuant to s.137Q(1) of the Act, which provided that the Minister may cancel a subclass 187 visa if:

    (a) the Minister was satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the Regulations; and

    (b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period. 

19. The delegate noted that the period referred to in (a) was 6 months from the date of the grant of the visa, as per r.2.50AA.

20. The delegate reiterated the information obtained by the Department, as set out in the NOICC, and concluded that the information before the Department indicated that the visa holder was not now, nor was he ever, an employee of Cinx1 Pty Ltd, as he had never commenced employment with them. The delegate was therefore satisfied that the applicant did not commence employment referred to in his employer nomination within the prescribed period.

21. The delegate further noted that the applicant did not respond to the NOICC, and as such, had not provided further information about his efforts to commence employment with Cinix1 within the prescribed period. The delegate found that when interviewed on 15 August 2017, the applicant was unable to provide the current business address or identify the current director of Cinix1 Pty Ltd. The delegate was not satisfied that the applicant had made a genuine effort to commence that employment within the prescribed period.

22. The delegate concluded that therefore, there was a ground for cancellation of the applicant’s subclass 187 visa under s.137Q(1) of the Act. The delegate then went on to consider whether there were any relevant considerations that might support not cancelling the visa, despite a ground for cancellation existing. The delegate had regard to the following factors, as set out in the relevant Department Procedural Instructions:

    ·the purpose of the applicant’s travel to and stay in Australia, such as whether he had any compelling purpose for travelling to or staying in Australia – the delegate found the applicant came to Australia in 2011 as a student and applied for the RSMS visa after the conclusion of his studies. The delegate noted that the purpose of an RSMS visa was specifically to assist regional employers to nominate skilled migrants to fill full time vacancies where there was a genuine need. As the visa holder did not commence work with his nominated employer, nor made a genuine effort to do so, the delegate considered that the applicant’s purpose of remaining in Australia was not aligned with the purpose for which the visa was granted. As the applicant did not respond to the NOICC, the delegate was unable to assess any specific claims he might have had about his travel to and/or stay in Australia, or any compelling reasons for staying in Australia. However, as the applicant had been in Australia for a considerable period since first arriving, it appeared his intention was to remain here permanently.  The delegate was not aware of any compelling reasons for the applicant to remain in Australia and therefore gave this consideration little weight in the applicant’s favour;

    ·the extent of the applicant’s compliance with any conditions to which his visa was granted – the delegate found that the applicant did not commence employment with Cinix1 within the prescribed period and had not ever been employed there.  He had not provided any further evidence to suggest he made a genuine effort to commence employment there, nor had he clarified the circumstances of his failure to work there. The applicant had therefore failed to comply the employment obligations of his subclass 187 visa and the delegate gave this consideration no weight in his favour;

    ·the degree of hardship that might be caused to the applicant (and/or any family members) if the visa was cancelled (including financial, emotional and/or psychological) – the Department’s records indicated that the applicant had resided in Australia since late 2011, and the delegate considered he therefore would have established some social and economic ties to Australia and probably had the intention of remaining permanently. The delegate accepted that cancellation would cause the applicant a degree of emotional and financial hardship as a result. There was no indication that the applicant had any family members in Australia who would experience hardship as a result of the cancellation. The delegate gave this consideration a little weight in the applicant’s favour;

    ·the circumstances in which the ground(s) for cancellation arose, such as whether there were any circumstances that were beyond the applicant’s control – the delegate relied on the information obtained by the Department indicating that the applicant had never commenced work for Cinix1, and that the position for which he was nominated may have been created by a former employee of Cinix1 to facilitate the grant of a permanent visa to the applicant to which he was not entitled. The delegate considered that the circumstances in which the cancellation arose were intended to mislead the Department and represented significant immigration fraud with a particular impact on the RSMS program and the regional areas it was designed to assist. The delegate found that the non-compliance in which the applicant participated risked causing financial harm to the regional industries that had a genuine need for skilled workers. Immigration fraud in the RSMS program risked creating skilled labour shortages in regional areas and inhibiting the growth of businesses in those areas. The delegate therefore considered the applicant’s actions were detrimental to the ongoing viability of the RSMS program and its genuine users. The delegate further found no information to suggest that there were extenuating circumstances beyond the applicant’s control that led to, or mitigated, the ground for cancellation;

    ·the applicant’s behaviour in relation to the Department – the delegate found that in addition to not commencing work with Cinix1 in the required period, the applicant provided a shifting explanation to the Department before stating he had resigned from the company.  He failed to respond to the NOICC. The delegate considered that the applicant had been uncooperative with the Department in relation to this issue, although there was no evidence of any other lack of cooperation. The delegate gave this consideration no weight in the applicant’s favour;

    ·whether anyone in Australia would have their visa(s) cancelled pursuant to s.137T of the Act – the delegate was satisfied that there was not;

    ·whether there were any mandatory legal considerations to a cancellation decision – the delegate noted that the applicant was eligible to apply for a bridging visa E while seeking review of any decision to cancel and would not be taken into immigration detention if this were granted. The delegate accepted that the cancellation would result in the applicant being subject to s.48 of the Act, which prevented most onshore visa applications, and to Public Interest Criterion 4013 (PIC 4013), which would prevent the grant of certain visas offshore for a period of 3 years after the cancellation. The delegate gave this consideration a little weight in favour of the applicant;

    ·Australia’s international obligations, including whether the cancellation would lead to removal of the applicant in breach of Australia’s non-refoulement obligations – the delegate found there was no information to indicate that cancellation would breach Australia’s international obligations, including its non-refoulement obligations. The delegate gave this consideration no weight in favour of the applicant; and

    ·any other relevant matter(s) – the delegate found there was no information indicating that there were any other relevant matters affecting the applicant and gave this consideration no weight in the applicant’s favour.

23. The delegate concluded, in light of the above, that the grounds for cancellation of the visa outweighed those against cancellation. The delegate therefore cancelled the applicant’s visa.

    Tribunal application

24. The Tribunal received a review application from the applicant on 17 October 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr William Markwell, as his representative and authorised recipient for correspondence.

25. On 16 May 2019, the Tribunal invited the applicant and his agent to attend a hearing on 11 June 2019.

    Pre-hearing submissions

26. On 6 and 11 June 2019, the Tribunal received the following material from the applicant’s agent:

    ·submission dated 6 June 2019;

    ·statutory declaration from the applicant, dated 6 June 2019;

    ·copy of the applicant’s testamur and letter of completion for his Bachelor of Design (Graphic Design) from Raffles College of Design and Commerce, completed 4 December 2015 and his Certificate of Attainment from Martin College of Business Technology & Design issued February 2012; and

    ·undated individual employment agreement between the applicant and Cinix1.

27. In his statutory declaration, the applicant relevantly states that:

    …

    6. In or about January/February 2016, I commenced training with Cinix 1 (‘the employer) as a Graphic Designer.

    7. The CEO was JACQUIE NEILSON (‘Jacquie’).

    8. I commenced working at Ellen Street, Logan Central at first, and liaised with the staff, namely Bruce and Karen and I also met and liaised with Priscilla, who was the daughter of Jacquie.

    9. In the latter period of 2016 however, Jacquie asked me to go in and do training and I was employed at 10 Bow Street, Waterford West.

    10. I had not started work in the latter period of 2016, as the visa had not been granted.

    11. The Employer agreed to sponsor me as a Graphic Designer on an [RSMS] subclass 187 Direct Entry [visa]. [This] was applied for on 13 March 2016.

    12. This visa was subsequently granted on 31 January 2017. I REFER to the Individual Employment Agreement attached…

    13. I commenced work for the Employer in or about February 2017.

    14. In or about December 2017, I was approached by Jacquie, who requested that I return back to Hong Kong and work from home for the Employer, setting up some Asian- based projects because Jacquie was keen for me to work in Asia, as I was a qualified Graphic Designer background and I spoke multiple languages.

    15. I DECLARE that I jumped at the opportunity as this would give me good experience and have me working overseas in different Asian countries. I packed up and departed for Hong Kong and waited for Jacquie’s next instructions.

    16. When I was back in Asia, I was assigned some small projects from Jacquie to complete and I was told that I was on the books, yet as the Board had not fully approved of my appointment, but from my point of view I was working and getting paid.

    17. It was not long after this, calls and texts from Jacquie ceased and in a way I was lost and I did not know what to do, but I had some confidential projects for the Employer that were well advanced.

    18. I continued to work until I completed the projects and my last communication with Jacquie was that she had had some matters with the Board and would update me as soon as she knew what was going on.

    19. Accordingly Jacquie advised me to get work and wait for updates.

    20. I DECLARE that this suited my situation as I needed to work to maintain my livelihood and therefore I took part-time and permanent part-time work. This went on for about six months. I only managed to confer with Jacquie approximately 2 or 3 times.

    21. I VERILY BELIEVE that whilst communicating with Jacquie, she sounded very stressed but at no time did she tell me that she was no longer working for the Employer.

    22. It was not until August 2017 that I got a call from the Department of Immigration in Australia asking me questions.

    23. I VERILY BELIEVE that I was lost and did not know how to answer and I was very worried at what had happened to Jacquie.

    24. It was then that I decided to return to Australia, so that I could try to find out what had occurred.

    25. On 21 August 2018, I received a [NOICC] and I was provided with 28 days to respond.

    26. I then made a FOI application through my legal representative and requested an extension of time, so that I could respond properly, but this extension of time was refused on 19 September 2018.

    27. On 9 October 2018, I received notification that my visa had been cancelled.

    28. In relation to Other Considerations as to why the visa should not be cancelled, I CONSIDER that I have made a genuine effort and I commenced employment with the Employer as a Graphic Designer, as and when I was instructed by the employer.

    29. I STATE FURTHER that there was never any collusion between myself and the Employer, not to commence work within the prescribed time.

    30. It was the employer’s suggestion that I relocate to Hong Kong, in order that I would help establish the Employer in the Asian market. I DECLARE that I was only following the employer’s instructions.

    31. I FURTHER DECLARE that it was circumstances beyond my control that led to my employment being terminated, and this was without knowledge.

    32. As stated above, I was awaiting in instructions from Jacquie and as far as I was aware I was employed by Cinix 1 as a Graphic Designer helping establish the Employer gain a foothold in the Asian market.

    33. I VERILY BELIEVE that I was employed by Cinix 1 as a Graphic Designer right up until August 2017 when I was contacted by the Department… asking questions.

    34. I DECLARE that these were circumstances beyond my control, as stated.

    35. I DECLARE that I have always complied with any conditions to any visa that I have been granted…

    36. I DECLARE that I shall not be subject to any degree of hardship if the confirmation [sic] is confirmed by the Tribunal.

    37. I FURTHER CONFIRM that I have always cooperated with the Department… in any requests they have made of me.

    38. As stated above, I received a [NOICC] on 21 August 2018 and accordingly through my legal representative, I requested that I obtain the file through [FOI] and I then requested an extension of time in order for this to occur. This request was refused.

    39. I did not respond as I did not have the relevant information available to provide my legal representative.

    40. ACCORDINGLY, I refute any consideration that I have been uncooperative with the Department and STATE that I consider myself to have been totally cooperative with the Department in every aspect regarding this matter.

    41. There are no other persons in Australia whose status would be affected if the cancellation was to be confirmed.

    42. There are no Other Considerations regarding the visa cancellation in relation to my circumstances that could be taken into account other than what has been set out above.

    …

1. In his submission, the applicant’s agent made the following points (in summary):

   ·the applicant maintains he made a ‘genuine effort’ to commence work in all the circumstances, and, in fact, did commence work for the Employer being employed offshore undertaking projects in the Asian region;

   ·he maintained that it was circumstances beyond his control that led to his employment not being maintained;

   ·the applicant had maintained a relationship with Jacquie constantly and the notification of instructions and directions appeared to have dried up over a period of time;

   ·the applicant had made a genuine effort to commence employment within the 6 month period prescribed by r.2.50AA;

   ·the term ‘genuine effort’ had been considered in Su and Anor v Minister for Immigration and Anor [2016] FCCA 83 but the term was not defined by the judge in that case. It was submitted that the term ‘genuine effort’ could be defined as a deliberate and determined intention by the applicant to undertake employment within the prescribed 6 month period. The applicant did have a deliberate and determined intention and commenced work for the employer and undertook projects for the applicant in Asia;

   ·reference was made to Departmental policy in assessing any reasons not to cancel. It was further submitted that the circumstances that had led to the applicant’s employment being terminated were beyond his control. It was further noted that while the word ‘terminated’ was used in the applicant’s statutory declaration and the agent’s submission, it might not in fact be the right word. If the applicant’s employment was indeed ‘terminated,’ it was by neglect and incrementally over a period of time. It was not by any intentional process where a representative of the employer had forwarded the applicant a letter of termination;

   ·the applicant was employed in Asia by the employer undertaking relevant projects and was receiving instructions and updates as to what was required. Over a period of time, he stopped receiving regular communications from Jacquie providing instructions and directions. These became intermittent then stopped altogether. This was not the applicant’s fault and these were extenuating circumstances beyond his control;

   ·as to the degree of hardship the applicant might suffer if the decision to cancel his visa was confirmed, the applicant had a girlfriend in Australia on a student visa and an extensive friendship network; and

   ·the applicant had always cooperated with the Department and he strongly refuted any intimation that he did not cooperate because he did not respond to the NOICC. As stated previously, he was awaiting the outcome of an FOI application before doing so but the cancellation decision was made before this was finalised.

   Tribunal hearing

2. The applicant confirmed that he first came to Australia as a student in 2009, and gave his study history, which included a Diploma and then Bachelor degree in Graphic Design and a Certificate III in Accounting and Advertising (respectively) and study in Melbourne, Brisbane and Sydney. The applicant said that at the conclusion of his Diploma of Graphic Design in Sydney in late 2015, he returned to Brisbane and then sent out many job applications, as by this stage, he had decided that he wished to apply for permanent residence through the RSMS program. He applied for web designer and graphic designer positions. He got advice about the RSMS program from the original education agent who assisted him with his student visas. The applicant said that the agent told him he needed to get his IELTS results and so on before he could apply for a subclass 187 visa, but that the agent did not advise him about the visa requirement to commence employment within 6 months of getting the visa.

3. The applicant said that he got an interview with Jacquie Neilson at Cinix1 in or around January 2017.  She described the job to him as working as a Graphic Designer for a company that organised car repair services online. He had to photograph the car components and design the webpage(s) on which they would be displayed. He started at the Ellen Street office of the company. There were about 12 to 14 people there.  He was offered the job about 4 or 5 days after being interviewed. The applicant said that although the contract of employment he provided to the Tribunal was undated, he signed it in or about February 2017 and started work later that same month. In response to the Tribunal’s query, the applicant said that the person who witnessed his signature and the signature he identified as Jacquie’s (on behalf of Cinix1) was Eugene Luk. Mr Luk was the applicant’s education agent. Mr Luk helped the applicant to get an interview with Jacquie, as they knew each other. The applicant said that he did not know how they knew each other, or whether Mr Luk knew any other potential employers.

4. The applicant told the Tribunal that in the first month after he started work, he would come in to work at Ellen Street. He had a corner desk on the second floor.  Bruce, his manager, sat in the same area and gave him work. This mainly consisted of retouching photos of products for the website and doing the layouts.  He did not report to Jacquie regularly but would see her about once a week. He worked 5 days per week. He was paid by cash cheque fortnightly. In response to the Tribunal’s query, he said that he did not bank or cash these cheques as he was saving them up until he had accumulated $20,000.  In the meantime, his family provided him with financial support for his living expenses. At the time he was renting a unit with a friend for $120 per week and cycling to work.  He did not have any other employment.

5. The applicant said that things were like this for about 4 weeks, then Jacquie let him work from home. He was happy to do that as he no longer had to commute by bike to the office, which took about 30 minutes.  The applicant said that Bruce would email him work instructions to his personal email address and he would email his work back for correction if needed, then email the final version to Bruce. The applicant said that he was still working 5 days a week from home.

6. After 2 or 3 months, the applicant said that Bruce and Jacquie stopped contacting him. He tried to contact them, and was told to finish whatever work he had on hand at home, and then await further instructions. The applicant said that after 3 or 4 months, Jacquie told him that she wanted him to go to Hong Kong because she wanted to break into the Asian market. He therefore packed up his things and moved back to Hong Kong around December 2017.  In response to the Tribunal’s query, the applicant said that he felt that he would be able to assist the company to establish itself in Hong Kong as he spoke Cantonese and Mandarin. The company already had a sister company in Malaysia. In response to the Tribunal’s query, the applicant said that he did not question this instruction and paid his own expenses to move back to Hong Kong. He moved back with his family and worked from their home. No office was set up in Hong Kong by the company. The applicant said that he was supposed to receive work in Hong Kong and to be paid for it, but this did not happen. He had to get another part-time job, as a bartender, as he needed the money. He said that he last heard from Jacquie around March 2018. She apologised to him for not being in contact and said that she would be shortly. In response to the Tribunal’s query, the applicant said that he did 2 small jobs for Jacquie while he was in Hong Kong, but was not paid for either of them.  He did not formally resign from Cinix1 and nor did Jacquie tell him he was terminated.

7. In response to the Tribunal’s query, the applicant said that he did not have any email correspondence evidencing his work in Australia or Hong Kong as his old computer broke and he lost all of its data.  None of the data was backed up in the Cloud or on any other form of storage, such as a USB stick or external hard drive.

8. After a period of silence, the applicant tried to contact Jacquie by telephone but was not able to reach her. In response to the Tribunal’s query, the applicant said that he did not think to contact the head office of Cinix 1 as his means of communication was with Jacquie on her personal mobile number. He reiterated that he had been told by her to await instructions, so he simply did so, without making any enquiries of the head office in Australia.

9. In response to the Tribunal observing that the applicant relocating to Hong Kong and undertaking, at best, sporadic work from home seeming inconsistent with the purpose of an RSMS visa, which was to fill labour shortages in regional area, the applicant said he did not think about any problems with the RSMS program. He said that he believed that as he was still employed by his nominating employer, he was complying with the conditions and purpose of his visa.

10. By August 2018, he had heard nothing further, so he told his family he needed to go to Australia to try to sort things out.  When he went to Cinix 1 in Brisbane, he was told Jacquie was no longer working there.  In response to the Tribunal’s query, the applicant said that he did not discuss his employment situation with anyone at Cinix 1 because he was confused and did not know what to do. He said that he also did not want to tell his family about not being able to contact Jacquie and clarify his employment status, so he went to Melbourne, where he had a close friend in whom he could confide.  In response to the Tribunal’s query, the applicant said that he did not get employment law advice from anyone until he received the NOICC.

11. The applicant confirmed that when he was rung by a Department officer and asked about why he was not present at either office of Cinix 1, he said that he was working from home. When asked why he did not also mention that he had been working for the company in Hong Kong, the applicant reiterated that he was confused and wasn’t sure what to do or how to answer.

12. After a brief adjournment, the Tribunal put information from the Department file to the applicant pursuant to s.359AA of the Act. Specifically, it went through notes made by Department officer(s) in August 2017 indicating that:

    ·on 2 August 2017, officers visited the Cinix1 office at 10 Bow Street, Waterford West and ascertained no business was operating there;

    ·on 9 August 2017, officers visited the Cinix1 office at 15 Ellen Street, Logan Central, where the business was found to be operating with a new director. The new director advised that he had been there for the last 6 months and that the former director, Jacquie, had resigned in October 2016 and might be complicit in arranging visa applications without the knowledge of the board of directors. The current director advised that he had never seen or known of the applicant and that the applicant did not work for the business. He also confirmed the business had not been operating from 10 Bow Street, Waterford West since October 2016;

    ·the applicant was contacted by telephone on 15 August 2017 and stated as follows:

    ohe worked for Jacquie at Cinix1;

    owhen asked for the address, he provided a post office box. When asked for a physical address, he stated that he did not know as ‘he just drives there.’ He stated that it was a house, and when prompted, confirmed it was 10 Bow Street, Waterford West;

    owhen advised that no one knew him at Cinix1, and that Jacquie had resigned the previous year, and that there was no business operating at 10 Bow Street, the applicant then stated that he resigned 2 months ago. When questioned as to why no one at Cinix1 knew him at all, he then stated that he worked from home;

    ·the applicant was only granted his visa in January 2017, some 2 months after the resignation of the person, Jacquie, for whom he said he worked. All evidence supported that he had never worked for the sponsor.

13. The Tribunal explained that this information was relevant to the decision under review as it indicated that his employment had been fabricated and that he was not genuinely employed by Cinix1. The Tribunal indicated that if it accepted this to be true, then it would be likely to find that the applicant did not meet s.137Q(1)(a) or (b), and that would establish that there was a ground to cancel his subclass 187 visa. The Tribunal further advised that, if it did not exercise the discretionary factors in his favour, this would be the reason (or part of the reason) to affirm the decision under review. It gave the applicant an opportunity to consult with his agent during a hearing break. On resumption of the hearing, the applicant elected to respond to this information at the hearing, rather than asking for additional time to do so.

14. The applicant said that at the time of the telephone call with the officer, he was confused and didn’t mention working in Hong Kong because the officer did not ask him about this and he (the applicant) was confused about the company’s addresses in Brisbane and just gave the first one that came to mind. In relation to the record of him advising the officer that he drove to work, he said that he might have used the wrong verb, and he meant that he rode his bicycle, consistent with what he had told the Tribunal earlier.  The applicant said that he did not know why Cinix1 had told the Department that Jacquie resigned in October 2016. He did not know about this and Jacquie never told him. The applicant said that he remembered now that he signed the employment contract in or about January or February 2016, not 2017, as he had earlier told the Tribunal. He said he was nervous and gave the wrong date to the Tribunal initially.  In response to the Tribunal’s query, he said that the dates were as per his statutory declaration and he did not think any of the other dates he provided to the Tribunal were wrong. The applicant said that when he told the officer in August 2017 that he resigned 2 months ago, he meant that he emailed Jacquie around June 2017 to advise her that he was not working for her any more. There was no contact between them from then.

15. After another adjournment, the Tribunal put some further information from the Department file to the applicant pursuant to s.359AA of the Act. Specifically, the Tribunal put the contents of an email from a current director of Cinix1 to the Department dated 9 August 2017 (noting that it had not included parts of the email that related to third parties unconnected with the applicant’s case), which indicated that:

    othe author of the email was the director of Cinix1 replacing the ex-CEO/Director Ms Jacqueline Neilsen from 26 October 2016 after she resigned;

    othe applicant’s application (and others mentioned) were before the new director’s time but he was made to understand that they were not discussed with staff and the Board of Directors. He checked that there was no company transaction on the fee to apply for or payment to meet the requirement for these applications;

    oto show that Cinix1 management were not involved, attached were statutory declarations from Bruce Chua and the new director. The other management director, Karen Owen, was on sick leave but was prepared to submit a declaration once she was back. In addition, the company’s Board of Directors was prepared to write an affidavit to state that they were not involved and these were not discussed in the Board’s meetings;

    othe company recently won a Workcover claim submitted by the ex-CEO;

    othey did not have any files regarding the applications in the company previously. Cinix1 had appointed a migration agent, Alina Blaga, to request information on the previous applications to FOI. They got some information from FOI. Separately they were requesting information from the previous agent about the applications submitted and who signed on behalf of Cinix1;

    ofor the applicant, who had been approved as a RSMS visa holder as a Graphic Designer, he was not a Cinix1 employee nor was this an authorised application. They did not have a Graphic Designer position;

    oupon checking the FOI information, the signatory for the previous applications was Jacquie. The company wanted to check who signed off payment. It regretted the actions of the ex-CEO and was taking the necessary measures to ensure that this would not happen again. The company had tightened its finance process and its HR process such that any employment would require the approval of the Board of Directors.

16. The Tribunal advised the applicant that this information was relevant to the decision under review, as, if accepted as accurate by the Tribunal, it indicated that the applicant was not in fact employed by Cinix1, and if it accepted this, then it would be likely to conclude that the applicant did not satisfy s.137Q(1) and that a ground for cancellation of the applicant’s visa existed. If it found this, and did not exercise the discretionary factors in the applicant’s favour, this would be the reason (or part of the reason) to affirm the decision under review.

17. The applicant elected to respond and provide comments at the hearing, rather than ask for more time to do so.  He reiterated that he was very confused and knew nothing of the new director. Jacquie did not tell him anything about this or about her resigning. He was unaware of this. The Tribunal put to the applicant that one explanation for the above information was that he, Jacquie and possibly his education agent had colluded to fabricate an employment position that Jacquie would offer him, solely for the purposes of him obtaining permanent residence, most likely in return to some payment by him to his agent and/or Jacquie. The applicant denied this and said that at all times until August 2017, he believed he was genuinely employed, and that he left Australia following Jacquie’s instructions.

18. The Tribunal then discussed the discretionary factors with the applicant. In relation to having a compelling need to remain in Australia, the applicant said that he wanted to stay here because of how long he had already spent in Australia and his enjoyment of the lifestyle here, but also because he wanted to be able to speak out freely. He pointed out that there had been recent large and turbulent pro-democracy demonstrations in Hong Kong and said that he was concerned about the freedom to speak freely there, without government control.

19. In relation to his present circumstances, the applicant said that he had been back in Australia for about 11 months, and had been living with a friend in Melbourne. His family were supporting him financially as he was not working. He held a bridging visa E.  In response to the Tribunal’s query, the applicant said that he had had no previous involvement in any political demonstrations or activities in Hong Kong but valued the right to democracy there, which he and others were concerned about given the attitude of the Chinese government.

20. The applicant reiterated that he believed that he had complied with all his visa conditions, and had cooperated with the Department. He only failed to respond to the NOICC by the due date as (on the advice of his agent) he was waiting to receive his file under FOI.

21. The applicant maintained that the circumstances of his ceasing employment with Cinix1 were beyond his control, as he was dependent on Jacquie’s instructions, and she stopped giving them. He reiterated that whatever happened with Jacquie and Cinix1 was outside his control and knowledge until he received the NOICC.

22. In response to the Tribunal’s query, the applicant said that he would not suffer any hardship if his visa were cancelled.  He confirmed that he has no family members in Australia whose visas would be consequentially cancelled, or who would suffer hardship in these circumstances. He told the Tribunal that his parents are both in Hong Kong and are separated. His father is a businessman who pays a monthly amount to his mother in alimony. While in Hong Kong, he lived with his sister and mother in their apartment, on the couch.  His sister is 26 and is working. He confirmed he could return to live with them if he needed to.

1. The applicant said that he previously had a girlfriend in Australia but had been single for some time.  He had a circle of friends that he had made over the time that he had been living and studying in Australia.  He wanted to stay in Australia due to the environment here, as Hong Kong was too noisy and busy. He was also concerned about the recent protests there but said he did not personally fear harm if he returned to Hong Kong.

2. The applicant’s agent emphasised that they believed the applicant did make a genuine effort to commence employment with Cinix1 and did so within the prescribed period, and that this employment ceased through no fault of the applicant’s own.

3. The Tribunal undertook to provide the applicant and his agent with redacted copies of the s.359AA material put at hearing, noting that this material was subject to a s.376 certificate which gave the Tribunal a discretion to release it (subject to not identifying any third parties unconnected with the applicant’s case).

4. On 13 June 2019, the Tribunal wrote to the applicant via his agent pursuant to s.359A of the Act, noting that the Department’s NOICC of 21 August 2018 referred to site visits by Department officers to Cinix1 Pty Ltd on 2 and 9 August 2017, and to a telephone call between the applicant and an officer on 15 August 2017, notes of which were on the Department’s file.  The Tribunal further noted that there was other information on the Department’s file that related to the genuineness of the applicant’s employment with Cinxi1 Pty Ltd, being an email from a director of Cinxi1 Pty Ltd to the Department dated 7 September 2017.

5. The Tribunal confirmed (as discussed at the hearing) that this material had been certified by the Department pursuant to s.376 of the Act, which provides that it is at the discretion of the Tribunal as to whether to disclose it to the applicant or not. A copy of the s.376 certificate was attached for the applicant’s reference, which stated that it applied to the material identified by the Tribunal as the material was given to the Department in confidence. The Tribunal advised the applicant that it considered that the certificate was valid, and that it intended to disclose the information to the applicant. It further advised that, in relation to the email from the director of Cinxi1 Pty Ltd to the Department dated 7 September 2017, it had redacted some information, where that information related to unrelated third parties who were not connected to the applicant’s case. The Tribunal stated that it did so pursuant to s.5(1) of the Act, which provides that information is non-disclosable ‘whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence’ and/or where release of that information might contravene the Tribunal’s obligation under the Privacy Act not to disclose the personal information of unrelated parties.

6. The Tribunal invited the applicant to comment on the following information in relation to the Department’s notes from its site visits to Cinix1 Pty Ltd on 2 and 9 August 2017, and its phone call to the applicant on 15 August 2017:

   ·on 2 August 2017, officers visited the Cinix1 office at 10 Bow Street, Waterford West and ascertained no business was operating there;

   ·on 9 August 2017, officers visited the Cinix1 office at 15 Ellen Street, Logan Central, where the business was found to be operating with a new director. The new director advised that he had been there for the last 6 months and that the former director, Jacquie, had resigned in October 2016 and might be complicit in arranging visa applications without the knowledge of the board of directors. The current director advised that he had never seen or known of the applicant and that the applicant did not work for the business. He also confirmed the business had not been operating from 10 Bow Street, Waterford West since October 2016;

   ·the applicant was contacted by telephone on 15 August 2017 and stated as follows:

   ohe worked for Jacquie at Cinix1;

   owhen asked for the address, he provided a post office box. When asked for a physical address, he stated that he did not know as he ‘just [drove] there.’ He stated that it was a house, and when prompted, confirmed it was 10 Bow Street, Waterford West;

   owhen advised that no one knew him at Cinix1, and that Jacquie had resigned the previous year, and that there was no business operating at 10 Bow Street, the applicant then stated that he resigned 2 months ago. When questioned as to why no one at Cinix1 knew him at all, the applicant then stated that he worked from home;

   ·the applicant was only granted his visa in January 2017, some 2 months after the resignation of the person, Jacquie, for whom he said he worked. All evidence supported that the applicant had never worked for the sponsor.

7. The Tribunal stated that it considered that this information was relevant to the decision under review as it indicated that the applicant’s employment was fabricated and that he was not genuinely employed by Cinix1. It further stated that if it accepted this to be true, then it would be likely to find that the applicant did not meet s.137Q(1)(a) or (b), and that would establish that there was a ground to cancel his subclass 187 visa. The Tribunal advised that if it did not exercise the discretionary factors in the applicant’s favour, this would be the reason (or part of the reason) to affirm the decision under review.

8. The Tribunal also invited the applicant to comment upon the following information in relation to the contents of an email from a current director of Cinix1 to the Department dated 9 August 2017, as follows:

   othe author of the email was the director of Cinix1, who replaced the ex-CEO/Director Ms Jacqueline Neilsen from 26 October 2016 after she resigned;

   othe applicant’s visa application (and others mentioned) were before the new director’s time but he was made to understand that they were not discussed with staff and the Board of Directors. He checked that there was no company transaction on the fee to apply for or payment to meet the requirement for these applications;

   oto show that Cinix1 management were not involved, attached were statutory declarations from Bruce Chua and the new director. The other management director, Karen Owen, was on sick leave but was prepared to submit a declaration once she was back. In addition, the company’s Board of Directors was prepared to write an affidavit to state that they were not involved and these were not discussed in the Board’s meetings;

   othe company recently won a Workcover claim submitted by the ex-CEO;

   othey did not have any files regarding the applications in the company previously. Cinix1 had appointed a migration agent, Alina Blaga, to request information on the previous applications to FOI. They got some information from FOI. Separately they were requesting the previous agent about the applications submitted and who signed on behalf of Cinix1;

   ofor the applicant, who had been approved as a RSMS visa holder as a Graphic Designer, he was not a Cinix1 employee nor was this an authorised application. They did not have a Graphic Designer position;

   oupon checking the FOI information, the signatory for the previous applications was Jacquie. The company wanted to check who signed off payment. It regretted the actions of the ex-CEO and was taking the necessary measures to ensure that this would not happen again. The company had tightened its finance process and its HR process such that any employment would require the approval of the Board of Directors.

9. The Tribunal advised the applicant that this information was relevant to the decision under review, as, if accepted as accurate by the Tribunal, it indicated that the applicant was not in fact employed by Cinix1. It further advised that if it accepted this, then it would be likely to conclude that the applicant did not satisfy s.137Q(1) and that a ground for cancellation of his visa existed. The Tribunal stated that if it found this, and did not exercise the discretionary factors in the applicant’s favour, this would be the reason (or part of the reason) to affirm the decision under review. The Tribunal attached copies of the above material, with redactions of the identities of unrelated third parties as set out above.

10. The applicant was invited to give comments on or respond to the above information in writing, including identifying any factors relevant to the discretionary factors weighing against cancellation of his visa, by 27 June 2019. He was advised that if he could not provide his written comments or response by that date, he could ask the Tribunal for an extension of time in which to provide the comments or response, and that any such request had to be made before the due date. 

11. Neither the applicant nor his agent gave comments or responded to the above information by 27 June 2019. Nor did they seek an extension of time to do so.  Under the circumstances, where the applicant was given the substance of the information under s.359AA at the hearing and given a post-hearing opportunity to make a further response but chose not to do so – the Tribunal has elected not to adjourn the review further, and instead to proceed to make a decision on the available evidence.

    Does the ground for cancellation exist?

12. Under s.137Q(1) the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in r.2.50AA. In the circumstances of this case, it provides that the period is 6 months from the date of the grant of the subclass 187 visa.

    Commencement of employment

13. The Department’s file indicates that the applicant was granted a subclass 187 visa on 31 January 2017 on the basis of being nominated by Cinix 1 Pty Ltd (a company located in Brisbane, then classified as regional Australia) as a Graphic Designer.

14. The delegate found that the applicant had never in fact commenced employment with Cinix 1 Pty Ltd, as he or she did not accept that the employment arrangement was genuine, and was not satisfied that the applicant had ever worked for Cinix 1 Pty Ltd.  In reaching this conclusion, the delegate relied on site visits by Department officers on 2 and August 2017, and a phone call between an officer and the applicant on 15 August 2017, which the delegate found indicated that the applicant had never worked for Cinix 1 Pty Ltd, and was not known to other employees there.

15. In contrast, the applicant maintained that he did commence employment with Cinix 1 Pty Ltd in or about January or February 2016 in Brisbane, then worked from home until December 2016 when he relocated to Hong Kong. He maintained that he did so at the behest of his employer and continued to work from home for the employer in Hong Kong until he ceased working for them in or about August 2017. He maintained that this was a genuine employment arrangement, but that the work provided to him by Jacquie at Cinix 1 Pty Ltd dried up over time, which was not his fault.

16. The Tribunal has considered the available evidence carefully, including evidence on the Department’s file which was not referred to in the delegate’s decision but which was put to the applicant at hearing and in a post-hearing letter, pursuant to ss.359A and 359AA of the Act (being the email from a current director of Cinix 1 Pty Ltd to the Department dated 9 August 2017).

17. The Tribunal considers that some evidence weighs in favour of the applicant’s assertion that he commenced employment with Cinix 1 Pty Ltd within 6 months of the date of the grant of his visa (31 January 2017, being the prescribed period set out in r.2.50AA) such as:

    ·    undated contract between Cinix 1 Pty Ltd and the applicant, Schedule B of which indicates that the applicant is to be employed as a Graphic Designer, and will work 9am to 5pm, Monday to Friday, at $23.50 per hour or at least $50,000 per year plus 9.5 % superannuation. At hearing, the applicant confirmed his signature as ‘Party B’ (the employee), that the signature on behalf of Cinix 1 Pty Ltd (the employer) was that of Jacquie, and that the witness to both his and Jacquie’s signatures was Eugene Luk, the applicant’s education agent at the time;

    ·    the applicant’s oral evidence at hearing that he signed this contract in or about February 2016; and

    ·    the applicant’s ability at hearing to describe the Ellen Street office at which he stated that he worked, as well as some of his work colleagues and some of the work he claimed to have undertaken.

18. The applicant’s oral evidence suggests that he had some familiarity with the business operated by Cinix 1 Pty Ltd, as he was able to describe the Ellen Street office and his interactions with Jacquie, the person who he said recruited him, in some detail.  He also referred to another colleague, Bruce.  This suggests to the Tribunal that the applicant had in fact visited the Ellen Street office of Cinix 1 Pty Ltd, and had some familiarity with its website and personnel. The Tribunal is satisfied that the applicant had some dealings with Jacquie, who was a director of Cinix 1 Pty Ltd in February 2016.

19. However, the Tribunal considers that there is also significant evidence that casts doubt on the applicant’s claimed employment there, notably:

    ·the fact that the above employment contract is undated and was apparently signed by Jacquie on behalf of Cinix 1 Pty Ltd in or about February 2016, when the email dated 9 August 2017 to the Department from another director of the company indicates that this was without the authority of the company board;

    ·information from the same email indicating that the board of Cinix 1 Pty Ltd had not approved the employment of the applicant, that the applicant had not been employed there, and furthermore, that the company did not have a Graphic Designer position;

    ·the fact that officers conducting site visits to both Cinix 1 Pty Ltd’s offices on 2 and 9 August 2017 respectively were unable to locate the applicant at either office, nor were other employees able to identify him as working there;

    ·the fact that the applicant does not have any documentary evidence, such as payslips, bank records, PAYG summary statements and/or tax returns to substantiate his payment and employment by Cinix 1 Pty Ltd; and

    ·the fact that the applicant has no record of the work he undertook or any emails received from, or sent to, Jacquie or any other employee of Cinix 1 Pty Ltd in relation to the work he undertook there.

20. In relation to the dot points above, the Tribunal has considered the applicant’s evidence that:

    ·after the first month, he worked from home;

    ·he was paid by cheque and did not bank these cheques as he was saving them up to bank them collectively when he had saved $20,000; and

    ·the computer that he used throughout the relevant period crashed and all data it contained (such as email correspondence between himself and Jacquie) had been lost without back-up.

21. The Tribunal rejects these explanations as implausible. It does not accept that, absent any other employment, the applicant would not bank salary cheques he received until he had saved $20,000, or that his family in Hong Kong would support him financially instead, when he was earning approximately $3,500 per month under the terms of the employment contract and had rent and other living expenses to pay.

22. The Tribunal does not accept that the applicant lost all relevant data when his computer crashed and he had no back – up. The Tribunal finds it implausible that he would not have backed up his work, nor that he would be unable to contact his employer to obtain copies of this information, if he were genuinely employed there. The Tribunal finds that the applicant fabricated this evidence, and his evidence of not banking his pay cheques, out of convenience, as a means of explaining why there was no obvious documentary evidence to support his claimed employment with Cinix 1 Pty Ltd, other than the undated employment contract cited above.

23. Similarly, the Tribunal does not accept the applicant’s account of commencing work at the Ellen Street office of Cinix 1 Pty Ltd in or about February 2017 (noting that he clarified at hearing that he signed the employment contract in January or February 2016 but did not actually commence working at the company until he was granted his subclass 187 visa in January 2017), working there for 5 days per week for about 1 month, and then working from home in Brisbane before moving back to Hong Kong in or about December 2017 to continue to work from home for Cinix 1 Pty Ltd there.  Again, there is no documentary evidence (such as email correspondence) to substantiate this, and (as noted above) the Tribunal does not accept the applicant’s explanation that this is because all data on his computer at the time has been lost.  The Tribunal rejects the applicant’s account of his employment as implausible, particularly his claim that he moved back to Hong Kong without demur simply because Jacquie told him to do so, and that he was not paid any moving expenses or given a business premises from which to work once he had returned to Hong Kong. The Tribunal does not accept that this is true.

24. The Tribunal has considered the available evidence overall, and considers that a more likely explanation of the applicant’s circumstances is that the applicant, his then agent, and Jacquie of Citrix 1 Pty Ltd colluded to fabricate an employment contract to make it look as if the company had employed the applicant on a full time basis as a Graphic Designer, in order for the applicant to secure permanent residence, presumably in exchange for a payment made to Jacquie. The Tribunal notes that the applicant denied paying Jacquie to obtain permanent residence at the hearing, but does not accept this. The available evidence strongly points to this explanation, including the fact that the contract of employment between the applicant and Cinix 1 Pty Ltd is undated and signed by Jacquie on behalf of the company (without the knowledge or approval of the company board, as pointed out by the email from another director to the Department in August 2017), and witnessed by the applicant’s agent. The Tribunal gives further weight to the fact that the applicant did not apply for the claimed position after it was advertised but was introduced to Jacquie through his agent. Despite the applicant’s denials, the situation strongly suggests a collusion to fabricate an employment relationship where no genuine relationship existed, in order to facilitate the applicant gaining permanent residence. The Tribunal does not accept that the applicant was unaware of this, as he was the party who clearly stood to gain most from this arrangement, and the Tribunal considers that there would have been no incentive for the applicant’s agent and Jacquie to enter such an agreement without the applicant’s knowledge, consent and participation.

25. The Tribunal further finds that any such arrangement was not sanctioned by the board of Cinix 1 Pty Ltd, as per the email from the current director to the Department dated 9 August 2017, and therefore was not official employment. In the Tribunal’s view, this conclusion is strengthened by the lack of documentary evidence of that employment (apart from the employment contract), and the applicant’s absence from the office, and the lack of recognition of the applicant by colleagues during the Department’s 2 site visits of 2 and 9 August 2017.  As noted above, the Tribunal does not accept the applicant’s explanation that he was working from home. It considers that the email from the new director to the Department dated 9 August 2017 establishes that the applicant was not employed by the company, as the contract was not authorised and there was no actual position for a Graphic Designer in the company in the relevant period.

1. The Tribunal finds that the employment contract between the applicant and Cinix 1 Pty Ltd was not authorised by the company, and that the employment arrangement between the applicant and Jacquie, who ceased as a director of Citrix 1 Pty Ltd on 26 October 2016, was a sham. The Tribunal does not accept that the applicant was genuinely employed by Cinix 1 Pty Ltd.

2. The Tribunal is therefore satisfied that the applicant did not commence employment with Cinix 1 Pty Ltd within the prescribed period of 6 months from 31 January 2017.

   Genuine effort to be engaged 

3. The delegate was not satisfied that the applicant had made a genuine effort to be employed by Cinix 1 Pty Ltd in the relevant period.  The delegate concluded that Jacquie of Cinix 1 Pty Ltd and the applicant colluded to create a false position in order for the applicant to obtain permanent residence. 

4. In his written and oral evidence, the applicant denied that the employment arrangement between him and Cinix 1 Pty Ltd was a sham designed to ensure that he obtained permanent residence and maintained that he made genuine efforts to commence employment with Cinix 1 Pty Ltd in February 2017 (having signed an employment contract in 2016) and to maintain his employment there until approximately August 2018, when he returned to Australia from Hong Kong.

5. Based on the evidence before it, the Tribunal does not accept that the applicant was ever genuinely employed by Cinix 1 Pty Ltd. Instead, it finds that the applicant and Jacquie, a former director of that company acting without the authority of the board, fabricated an employment relationship between the company and the applicant with the aim of securing permanent residence for the applicant.

6. It follows that the Tribunal does not accept that the applicant made genuine efforts to commence employment with Cinix 1 Pty Ltd within the prescribed period (that is, within 6 months of the grant of his visa on 31 January 2017).  It does not accept that he ever worked for Cinix 1 Pty Ltd.

7. The applicant sought to portray himself as the innocent victim of an unscrupulous Australian employer and agent, and essentially maintained that he did everything he could from his end to carry out the employment contract he alleged he had signed in good faith.

8. However, on balance, the Tribunal does not accept the applicant’s account of events, and it is not satisfied that he made genuine attempts to be engaged in employment with Cinix 1 Pty Ltd in the relevant period. The reason for this is that the Tribunal does not accept that the applicant was offered a genuine employment role with Cinix 1 Pty Ltd in the first place, and finds that he and Jacquie (most likely facilitated by the applicant’s former agent) made an agreement by which the applicant paid his agent and/or Jacquie in exchange for the latter purporting to have Cinix 1 Pty Ltd nominate the applicant for permanent residence, but that neither party had the intention that he would actually be employed within the company for the required 2 years. 

9. The overwhelming impression given by the evidence considered by the Tribunal is that the employment agreement between the applicant and Cinix 1 Pty Ltd was not genuine, but a sham. 

10. Having considered the matter carefully, the Tribunal is not satisfied that the applicant made a genuine effort to be engaged in employment as a Graphic Designer with Cinix 1 Pty Ltd in the relevant period.

11. Accordingly, the Tribunal finds that the ground for cancellation in s.137Q(2) is established. As the power to cancel under s.137Q is discretionary, the Tribunal must now proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘Visa Cancellation Instructions – Regional Sponsored Employment Visas – Assessing Any Reasons not to Cancel.’

    Purpose of the visa holder’s travel to and stay in Australia – whether the applicant has a compelling need to travel to or remain in Australia

13. On the applicant’s evidence, he returned to Hong Kong in late 2017 and remained there until approximately August 2018, when he returned to Australia to try to resolve his situation with Cinix 1 Pty Ltd.  The applicant’s evidence was that, since returning to Australia, he had been sharing accommodation with friends in Melbourne. He told the Tribunal that he is not employed in Australia and does not have any family here. He does have a circle of friends in Australia, and said that he preferred the environment in Australia to Hong Kong, as Australia was less crowded and polluted.

14. The Tribunal considers that the applicant currently has relatively few strong ties with Australia of an employment or personal nature, and it gives little weight to this factor as a reason not to cancel his visa.

    Extent of Compliance with Visa Conditions

15. Aside from the failure to commence employment which is the subject of this review, there is no evidence before the Tribunal to indicate that the applicant did not comply with the terms of his previous student visas, or that he has not complied with the terms of his current bridging visa.

16. The Tribunal gives this factor some weight in favour of not cancelling his visa.

    Circumstances leading to the grounds for cancellation

17. The Tribunal has set out its view of the circumstances leading to the grounds for cancellation above.  It finds that the purported employment and nomination arrangement between the applicant and Cinix 1 Pty Ltd was a sham to enable the applicant to obtain permanent residence because of Cinix 1 Pty Ltd’s nomination of him, but that there was no genuine intention by either party that he would work for Cinix 1 Pty Ltd for 2 years as a Graphic Designer.  It does not accept that these factors were outside the applicant’s control.

18. The Tribunal gives this factor significant weight in favour of cancelling the applicant’s visa as it goes to the whole basis for existence of the subclass 187 visa category; that is, for Australian employers to fill genuine labour shortages in regional areas.

    Visa holder’s current and past behaviour in relation to the Department (including truthfulness of statements made to officers, or in applications under consideration by the Department)

19. The Tribunal has concluded that it does not accept the applicant’s characterisation of events, which he provided both to the Department and to the Tribunal.  It follows that the Tribunal therefore considers that the applicant did not give an accurate account of the true nature of the arrangement between himself and Cinix 1 Pty Ltd to the Department.  However, it considers that in more general terms, the first named applicant has cooperated with the Department and (as noted above) there is no evidence before the Tribunal that he has not abided by the terms of his bridging visas since his subclass 187 visas was cancelled.  The Tribunal accepts his explanation that he did not respond to the NOICC on the advice of his current agent, who wished to obtain a copy of the applicant’s file via FOI before responding.

20. However, given the significance of the applicant’s failure to give an accurate account of the true nature of the employment arrangement between himself and Cinix 1, which goes to the heart of his eligibility for the subclass 187 visa, the Tribunal gives substantial weight to that factor as a reason to cancel his visa.

    Links the visa holder may have to the community, which might include the strength of family, social, business and other ties to Australia.  (Strong ties to regional Australia and continued employment in that area may also be given special consideration)

21. The Tribunal accepts that the applicant has largely resided in Australia since approximately September 2009, a period of approximately 10 years during which he undertook various educational courses, although it also notes that he has made frequent trips outside Australia during that time, most notably between 14 December 2017 and 29 July 2018, in relation to which his evidence was that he returned to Hong Kong on Jacquie’s instructions.

22. The Tribunal further accepts, from the documentary evidence provided, that the applicant does not have substantial assets in Australia, such as real estate, investments or a vehicle. At hearing, the applicant stated that he had had a girlfriend, but had split up with her several months earlier.  He did not have any close family in Australia, as they remained in Hong Kong, although he told the Tribunal that he had a network of friends in Australia.

23. The Tribunal is satisfied that applicant’s links to Australia are now largely based in Melbourne and that he has few, if any, ties or links to regional Australia.

24. While the Tribunal acknowledges the applicant’s relatively long residence in Australia as a factor in favour of not cancelling his visa, it considers that this is outweighed by his lack of strong ties to the Australian community at present, and his lack of connection with regional Australia. These factors weigh in favour of cancelling his visa, in the Tribunal’s view.

    Length of any period of employment with the sponsor, including any previous employment with the sponsor while the visa holder was on a temporary visa

25. As noted above, the Tribunal finds that the employment arrangement between the first named applicant and Cinix 1 Pty Ltd, his sponsor/nominator, was non-genuine, and that he never worked for the company. 

100.   Accordingly, the Tribunal gives this factor very little weight in favour of not cancelling the visa.

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

101.   The applicant did not identify any significant hardship that would be caused to him or his family if the visa was cancelled.

102.   The Tribunal accepts that the applicant may have suffered stress to some degree since his visa was cancelled, and that he does not agree that his visa should be cancelled.  The Tribunal is not aware of any evidence to suggest that the applicant has required, or would require medical or psychological treatment, nor that he would not be able to receive adequate medical and/or psychological treatment in Hong Kong for any health issues.

103.   The Tribunal acknowledges the concerns expressed by the applicant at hearing about the recent demonstrations in Hong Kong and his fear that there will be a political clamp down on democracy in Hong Kong by the Chinese government.  The Tribunal is satisfied from the applicant’s own evidence that he was not politically active while he lived in Hong Kong, and it concludes that he is unlikely to be if he returned there. Even if he were to take part in similar demonstrations to the ones that have recently occurred, the Tribunal considers that the risk of any harm coming to him can only be regarded as speculative, in the absence of any clear evidence that the Chinese government is cracking down on the general population in Hong Kong, or that it is likely to do so.  

104.   The Tribunal therefore gives this factor little weight in favour of not cancelling the visa.

Whether there are any persons in Australia whose visas would, or may, be cancelled under s.137T

105.   The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.137T, as a result of the cancellation of the applicant’s visa.

106.   It therefore gives this factor no weight in favour of not cancelling the visa.

Whether there are mandatory legal consequences to a cancellation decision (such as indefinite detention if a person cannot be removed from Australia; whether there are limitations on making a valid visa application without the Minister’s intervention, and/or whether cancellation would cause the applicant to become unlawful)

107.   The Tribunal is satisfied that the applicant has been granted a bridging visa pending the outcome of the review application, and will be entitled to apply for a further one in the event that he needs more time to arrange his departure after refusal of this application. The Tribunal is satisfied that the applicant will not be indefinitely detained or become unlawful as a result of his visa being cancelled.

108.   The Tribunal acknowledges that cancellation of the applicant’s visa will limit his ability to make a valid onshore application, and gives this factor limited weight in favour of not cancelling his visa (particularly given he did not identify any application he wished to make).

109.   Overall, the Tribunal gives this factor little weight in favour of not cancelling the applicant’s visa.

Whether cancellation would breach Australia’s obligations under relevant international agreements, including the UN Convention on the Rights of the Child (CROC)

110.   The Tribunal is satisfied that this case does not involve any obligations under the CROC and there is no evidence that cancellation of the applicant’s visa would result in Australian breaching any of its obligations under any other international agreements (the Tribunal has dealt with the Refugee Convention below).

Whether cancellation would lead to removal of the applicant in breach of Australia’s non-refoulement obligations

111.   As noted above, the Tribunal acknowledges the concerns expressed by the applicant at hearing about the recent demonstrations in Hong Kong and his fear that there will be a political clamp down on democracy in Hong Kong by the Chinese government.  The Tribunal is satisfied from the applicant’s own evidence that he was not politically active while he lived in Hong Kong, and it concludes that he is unlikely to be if he returned there. Even if he were to take part in similar demonstrations to the ones that have recently occurred, the Tribunal considers that the risk of any harm coming to him can only be regarded as speculative, in the absence of any clear evidence that the Chinese government is cracking down on the general population in Hong Kong, or that it is likely to do so.   It is satisfied that there is not a real chance that the applicant will suffer persecution, or significant harm, if he has to return to Hong Kong if his visa is cancelled.  Accordingly, the Tribunal is satisfied that cancellation of the applicant’s visa would not lead to his removal in breach of Australia’s non-refoulement obligations.

112.   The Tribunal finds that this factor weighs in favour of cancellation of the visa.

Any other relevant matters

113.   The applicant did not raise any other matters.

Conclusion

114.   Considering the above circumstances individually and cumulatively, the Tribunal concludes that the factors in favour of cancellation outweigh those against, and that the visa should be cancelled.

DECISION

115.   The Tribunal affirms the decision to cancel the applicant’s subclass 187 (Regional Sponsored Migration Scheme) visa.

Alison Mercer

Member