LI (Migration)

[2018] AATA 4777

LI (Migration) [2018] AATA 4777 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chunfu Li

CASE NUMBER:  1717637

HOME AFFAIRS REFERENCE(S):           BCC2017/1828414

MEMBER:John Cipolla

DATE:8 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 08 October 2018 at 5:03pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (skilled)) – ceased to work in nominated occupation – length of  no employment – unable to secure new employment – sole income earner – ability to acquire employment in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8107(3) of his Subclass 457 visa because the applicant ceased to work in his nominated occupation in his most recently approved nomination. The delegate noted that the standard business sponsor who nominated the applicant in his most recently approved nomination for the visa was Max Construction Pty Ltd. The Department had information before them that indicated that the applicant ceased work with the sponsoring business on or before 1 September 2015. The delegate based on this concluded that the applicant ceased employment with the sponsoring business and that the period during which the holder ceased employment exceeded 90 consecutive days.

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. Recourse to the Departmental file indicates as follows. 

5. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 5 July 2017.  The NOICC indicated that the applicant had ceased working for his sponsoring employer effective 1 September 2015 and consequently he was in breach of condition 8107 attached to his Subclass 457 visa.

6. The applicant provided no response to the NOICC.

7. The Department of Immigration proceeded to cancel the applicant’s Subclass 457 visa in a decision made on 2 August 2017. The delegate in the decision record noted that the ground for cancellation appeared to exist on the basis that the applicant had ceased employment with his sponsoring employer with effect from 1 September 2015 and that the period during which the applicant ceased employment exceeded 90 consecutive days. The Departmental delegate determined that the ground for cancellation of the applicant’s visa existed and that the reasons for not cancelling the visa were not outweighed by the grounds for cancelling the visa.

8. The applicant made a valid application for merits review. The applicant annexed a copy of the Departmental cancellation decision to the application for review.

9. The Tribunal wrote to the applicant on 26 June 2018 inviting the applicant to provide information and to comment on information that the Tribunal considered could be the reason or part of the reason for affirming the decision under review.  A response was due on 10 July 2018.

10. The applicant’s representative wrote to the Tribunal on 10 July 2018 seeking an extension of time to respond to the Tribunal’s letter of 26 June 2018. The Tribunal consented to this request.

11. On 24 July 2018 the Tribunal received a response to its letter of 26 June 2018. The response noted that the applicant commenced employment with Max Construction Pty Ltd after arriving in Australia. The response notes that in October 2015 the applicant and a number of colleagues were advised by a Director of the sponsoring company to work at various job sites in Sydney. The response notes that the applicant attempted to obtain a further nomination to work as a Bricklayer but had not been able to find a new sponsoring business. The submission notes that the applicant was the only income earner in his family and he was supporting a son studying at tertiary level, a second son studying at primary level and that he provided support to his mother and mother-in-law and that he would suffer significant financial hardship if he returned to China. The response does not articulate why this was the case.

12. The Tribunal set the matter down for a review hearing on 11 October 2018.  This had to be re-scheduled to 8 October 2018 at 3.30pm. An invitation to the re-scheduled hearing was sent the applicant at the authorised address for service and clearly spelt out the time and date of the re-scheduled hearing.

13. On 25 September 2018 the applicant’s representative e-mailed a Registry Officer of the Tribunal to advise that he was travelling overseas in early October 2018 and would not be returning until 11 October 2018. The representative sought a postponement of the hearing on this basis.

14. The Tribunal considered the request and decided not to postpone the review.  In doing so the Tribunal advised the applicant’s representative that it would not proceed to make a decision on the review until close of business 15 October 2018 to enable the representative to listen to the hearing and provide a post hearing submission.

15. The applicant failed to attend the scheduled hearing on 8 October 2018.  No reason for the applicant’s non-attendance was provided, in these circumstances the Tribunal is able to proceed to decision.

16. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

18. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. Of relevance in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.

19. The evidence before the Tribunal indicates that the applicant was granted a 457 visa on 1 October 2014 on the basis of a nomination by Max Construction Pty Ltd (the sponsor). The sponsor advised the Department that the applicant ceased employment with them effective 1 September 2015.

20. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment with Max Construction Pty Ltd.  On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b). 

21. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

22. 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 ‘General visa cancellation powers’.

23. The Tribunal has first considered the purpose of the applicant’s travel to and stay in Australia.  The evidence before the Tribunal indicates that the applicant was granted a Subclass 457 visa to work as a Bricklayer for Max Construction Pty Ltd which was valid from 1 October 2014 until 1 October 2018.  The evidence before the Tribunal indicates that the applicant ceased working for the sponsor on 1 September 2015.

24. The evidence indicates that the applicant after ceasing employment with the sponsor has not been able to secure a new nomination.   

25. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted his most recent 457 visa was to work in the occupation of Bricklayer for Max Construction Pty Ltd, and that purpose ended on 1 September 2015 when the applicant ceased working for that company. The evidence indicates that the applicant has been unable to secure another sponsor.  It has now been 3 years since the applicant ceased working for his approved sponsor and to date the applicant has not been able to secure another approved nomination under the 457 visa programme.

26. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for his approved sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa. 

27. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied on the evidence before it that other than condition 8107(3)(b) the applicant has complied with visa conditions.

28. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. In response to the Tribunal’s letter dated 26 June 2018 the applicant’s representative advised that the applicant is the sole income earner for his family and provides financial support to his two sons and his elderly mother and mother in law.  However the evidence indicates that the applicant has skills as a Bricklayer and that based on these skills he should be able to re-acquire employment upon his return to China.

29. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if he does not continue to hold visas to remain lawfully in Australia or refuse to depart voluntarily. The applicant will not have to immediately depart Australia if the visa is cancelled and can apply for further Bridging E visas. If the visa is cancelled the applicant will be affected by s.48 of the Act and will have limited options for applying for substantive visas onshore without the intervention of the Minister.

30. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation. 

31. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience some financial hardship if the visa is cancelled. The Tribunal also accepts that the applicant has generally complied with visa conditions. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor over 3 years ago. As indicated above, the applicant can, should he wishes to do so, make an application offshore for a Subclass 482 visa should a nomination in relation to him be approved in future.

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

    DECISION

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

    John Cipolla
    Senior Member