Lei (Migration)

[2021] AATA 4451

Lei (Migration) [2021] AATA 4451 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Luyan Lei
Mr Jinming Xiao
Mr Jiayao  Xiao
Miss Jiayi Xiao

CASE NUMBER:  2105041

HOME AFFAIRS REFERENCE(S):          BCC2021/377465

MEMBER:Kira Raif

DATE:1 November 2021

PLACE OF DECISION:  Sydney

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

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

Statement made on 01 November 2021 at 8:37pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – employment terminated within 2 years of commencing – genuine effort to be engaged in that employment for the required 2 years – applicant did not live near the regional employer – applicant ceased employment – family hardship – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 137, 348
Migration Regulations 1994, r 2.50

STATEMENT OF DECISION AND REASONS

Application of review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 April 2021 to cancel the first named applicant’s (‘the applicant’s’) Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in July 1986. She was granted the Regional Sponsored Migration Scheme Subclass 187 visa in October 2016. The visas were also granted to her partner and children, who are included in the present application for review. In February 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be grounds for cancelling the visa under s. 137Q(2) of the Act. It appears the applicant did not respond to the NOICC and the visas were cancelled. The applicants seek review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. On 6 October 2021 the Tribunal wrote to the applicants by letter addressed to their representative, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 1 November 2021.

5. The applicants did not attend at the scheduled time and place. An officer of the Tribunal made attempts to contact the applicant and her representative Mr Levingston at the time of the hearing commencement. The representative was unavailable and the applicant has indicated that she was unaware of the hearing. However, the Tribunal is satisfied the applicant was properly notified of the hearing, as the hearing invitation was sent to the representative at the specified email, the applicant was sent two SMS reminders prior to the hearing, which were not returned to the Tribunal, and the representative wrote to the Tribunal on 25 October 2021 concerning the pre-hearing checks. Thus, the Tribunal is satisfied that the representative was aware of the hearing and the applicant would have received SMS reminders of the hearing.

6. On 1 November 2021 (after the applicant failed to attend the hearing) the Tribunal wrote to the applicant and invited her to provide further submissions, including any submission as to why she should be offered another hearing. On the same day the applicant informed the Tribunal that she did not wish to attend the hearing and agreeing for the Tribunal to make the decision on the material before it.

   Relevant law

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. Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.

   Does the ground for cancellation exist?

9. The applicant provided to the Tribunal a copy of the primary decision record, which  indicates that in October 2016 the applicant was granted the Regional Sponsored Migration Scheme (RSMS) Subclass 187 visa and arrived in Australia in November 2016 as a holder of that visa. The visa was granted on the basis of a nomination by South Wagga Bakery Ltd located in Wagga Wagga NSW.

10. It is stated that when the applicant arrived in Australia, she listed her intended address at Kissing Point Road Dundas, NSW and her occupation as housewife. In January 2021 when the applicant applied for the Australian citizenship, she also gave her address at Kissling Point Road, Dundas and stated that she had no other addresses in the past five years.  The delegate notes that the nominated employer South Wagga Bakery is located approximately 4.5 hours’ drive from Sydney.

11. It is stated that South Wagga Bakery informed the Department in September 2017 that the applicant resigned from her employment as a management accountant six months after commencing employment with them, so that it would appear that the applicant had not completed the required 2 years of employment for which she was nominated under the RSMS program.

12. The primary decision record indicates that the applicant did not respond to the NOICC and she did not provide any written submissions to the Tribunal prior to the hearing. Nor did the applicant attend the Tribunal hearing, so the Tribunal was denied the opportunity to obtain evidence about her circumstances. In her written submission to the Tribunal of 1 November 2021 the applicant confirmed that she did not wish to provide further evidence concerning the circumstances surrounding her employment.

13. The Tribunal has had regard to the information provided by South Wagga Bakery, as set out in the primary decision record, which indicates that the applicant resigned from her employment six months after commencing. In the absence of any information to contradict that evidence, the Tribunal accepts that evidence and finds that the applicant commenced employment referred to in the relevant employer nomination and had terminated that employment within the period of 2 years from the date of commencement. The applicant presented no evidence concerning any effort she has made to engage in that employment for the required employment period and on the limited evidence before it, the applicant has not satisfied the Tribunal that she has made a genuine effort to be engaged in that employment for the required period. The Tribunal finds that the circumstances set out in s. 137Q exist and that there are grounds for cancelling the visa.

14. As the power to cancel under s.137Q is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.

    Should the visa be cancelled?

15. There are no matters specified in the Act or Regulations that must be considered in relation to 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: Act - Visa cancellation instructions - Regional sponsored employment visas’.

    If there are children whose interests would be affected by cancellation, or consequential cancellation under s 137T, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

16. The applicant has two minor children whose visas have also been cancelled. In her submission to the Tribunal of 1 November 2021 the applicant refers to the children’s settlement in Australia. The applicant states that the cancellation of the visa would have ‘the inevitable effect” and a “significant and adverse impact upon two minor children” who are engaged with the wider community and are settled in Australia. The applicant refers to the hardship and disruption upon the children, if they are required to leave Australia. The Tribunal has found these submissions to be extremely vague and containing little more than generalised statements without sufficient detail. The applicant presented very limited evidence concerning her children’s circumstances (other than the fact that they attend school and receive awards) and their settlement in Australia. The Tribunal acknowledges school reports and awards and accepts that the children attend school and are progressing well academically. However, there is very little evidence before the Tribunal about other aspects of the children’s lives, including any links they have in Australia and overseas, any friendships they may have formed, interactions with extended family, their cultural practices, language skills, etc. There is no evidence of the children’s involvement in any activities outside of school or participation in any groups. The Tribunal does not consider that settlement in Australia can be established by school attendance alone. All of this information would have assisted the Tribunal in determining what the best interests of the children are and the applicant’s decision to provide very limited evidence is unhelpful.

17. The primary decision record indicates that the children are nationals of China and there is no evidence before the Tribunal that they are Australian citizens. As such, they would be able to retain (or obtain) a hukou, should they be required to return to China. As nationals of China, the children will have access to all the services that the Chinese national children have. The Tribunal is of the view that if the applicant and children seek other visas in Australia, or decide to return to China, the children can be cared for by both parents.

18. The applicant refers to the disruption and a significantly adverse impact that the cancellation of the visa would have. But in the Tribunal’s view, these are nothing but broad statements that have not been particularised by the applicant in any way and the Tribunal is not prepared to accept such broad claims without any specific information, nor supporting evidence, being offered.

19. In the Tribunal’s view, the best interests of the children require the presence of both parents, but it is not necessary for the children to reside in any particular country to receive the parental support. That is, the Tribunal is not satisfied that the children’s best interests necessarily require their presence in Australia.

20. The Tribunal does not accept on the very limited evidence before it that the children will experience adverse effects or hardship if the applicant’s visa is cancelled (and the children’s visas are cancelled as a consequence). On the limited evidence before it, the Tribunal has formed the view that the best interests of the children would not be adversely affected by the cancellation of the applicant’s visa. 

    The circumstances leading to the grounds for cancellation

21. The applicant has not presented any information relating to the circumstances leading to the grounds for cancellation. The primary decision record indicates that the applicant’s employer informed the Department about the cessation of her employment within 6 months of commencement. There is no other information before the Tribunal.

    The visa holder’s current and past behaviour in relation to the Department, such as the truthfulness of statements made to officers or in applications under consideration by the Department

22. Nothing adverse is known about the applicant’s behaviour in relation to the Department. The primary decision record indicates the applicant did not respond to the NOICC.

    The links to the community the visa holder may have. This can include the strength of family, social, business and other ties in Australia. Strong ties to regional Australia and continued employment in that area may also be given special consideration

23. The applicant presented to the Tribunal evidence of operating a business and of her children’s attendance at school. The Tribunal accepts that the applicant and her partner operate a business and that the children attend school. The Tribunal accepts the family has formed some and social business ties. There is very little evidence before the Tribunal about other ties the family has and the strength of these ties.

    The length of any period of employment with the sponsor, including any previous employment with the sponsor whilst the visa holder was on a temporary visa

24. The applicant has not provided any evidence concerning her employment with the sponsor. As noted above, the employer informed the Department that the applicant resigned from the job six months after commencement. The applicant does not confirm, nor contradict that  evidence.

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

25. The applicant presented very little information about the hardship that would be caused to her and family members. The Tribunal acknowledges that the applicant has lived in Australia for some years and that her partner and children are also in Australia. The Tribunal is prepared to accept that they have settled. The Tribunal also acknowledges that the applicant and her partner operate a business. The Tribunal accepts that unless the applicant seeks another visa in Australia and is granted another visa, the applicant and the children may be required to leave Australia and that may result in breaking the ties the family has formed. This may cause some hardship to the applicant and her family but in the absence of any helpful evidence on this issue from the applicant, the Tribunal does not consider that significant hardship would be caused by the cancellation.

    Any other relevant matters.

26. The applicant has not raised other matters.

27. The Tribunal has found that there are grounds for cancelling the visa under s. 137Q because the applicant had terminated her employment within 2 years. On the very limited evidence before it, the Tribunal has formed the view that the best interests of the children would not be affected by the cancellation and while there may be hardship due to the cancellation if it results in the applicant having to depart Australia (which is not necessarily the case), the Tribunal does not consider, on the limited evidence before it, that hardship would be significant.

28. The Tribunal places greater weight on the fact that the applicant appears not to have fulfilled the purpose for which her visa was granted. The breach went to a significant, if not central, aspect of the visa which relates to employment in a regional area and the applicant has not offered an explanation as to the circumstances in which it occurred, nor provided evidence of having been employed in a regional area for a meaningful period of time. The Tribunal has formed the view that such considerations outweigh others.

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

    DECISION

30. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

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

    Kira Raif

    
    

    Senior Member