Li (Migration)

[2018] AATA 3581

Li (Migration) [2018] AATA 3581 (3 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hui Li
Mrs Dai Sun

CASE NUMBER:  1707258

HOME AFFAIRS REFERENCE(S):           BCC2017/808118

MEMBER:Bridget Cullen

DATE:3 August 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 03 August 2018 at 5:08pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class VC) – Subclass 457 (Temporary Work (Skilled) – Breach of employment conditions – Commenced work with original sponsor – Left with unpaid wages – Took appropriate steps to find a new sponsor – Assisted new prospective employer – Applicant’s profile on new employers website – Financial difficulties during transition between previous and new sponsor – Decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8 condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that on the basis that the first-named applicant ('the applicant') had not complied with condition 8107(3)(a)(ii)(B) of his Subclass 457 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicants appeared before the Tribunal on 1 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Paul Arthur, the CEO of the applicant’s current sponsor, PLA’D Investments Pty Ltd (trading as Queensland Sotheby’s International Realty)(“Sotheby’s”), and Ms Aleysha Rapisarda, Sotheby’s Financial Controller and Human Resources Manager.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 (3)(a)(ii)(B) attached to the applicant’s visa. This condition requires that the first applicant must work only in a position in the business of his approved standard business sponsor or an associated entity of the sponsor. The delegate cancelled the first applicant's visa under s.116(1)(b) of the Act because the delegate considered that he breached condition 8107(3)(a)(ii)(B) by working in a business that was not that of the sponsor or an associated entity of the sponsor. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to remain cancelled.

9. On 11 March 2016, the applicant was nominated by Citi Project Marketing (QLD) Pty Ltd to work in the position of Marketing Specialist.  This nomination was approved on 6 June 2016, and the applicant’s visa granted the same day.

10. On 3 August 2016, Sotheby’s lodged a nomination application for the applicant, also to work in the position of Marketing Specialist.  The application was refused on 6 December 2016. 

11. On 9 December 2016, Sotheby’s lodged a second nomination for the applicant to work in the position of Marketing Specialist, which was approved on 18 September 2017.  The applicant gave evidence that he has been working in this role since he was given work rights in conjunction with his Bridging Visa E, in April of 2017.

12. The Decision Record, provided by the applicant to the Tribunal in conjunction with the review, reflects the following:

    The Department’s Sponsor Monitoring Unit (SMU) conducted a telephone interview on 24 January 2017 with the director of the sponsor business, Samuel Brian Patterson, who advised that the company is no longer operating and Mr Li had never worked for the company.

    During a telephone conversation on 16 February 2017 with an SMU officer, Mr Li initially stated he was working for his current sponsor Citi Project Marketing (QLD) Pty Ltd. During this conversation he was advised the sponsor informed the Department the business was no longer operating and Mr Li had never worked for the company. Mr Li then claimed he has left the company two months prior. The SMU officer advised Mr Li they had established the business had not been operating for at least six months. Mr Li then admitted he had been working for a different employer.

    On 15 February 2017 SMU located Mr Li’s details on the website for (Sotheby’s). His name was found listed as part of the team working for the business as a General Manager, Business Development – Asian Market.”

13. The Department, although it had concerns about whether the applicant had commenced employment with his original sponsor, Citi Project Marketing Pty Ltd, ultimately accepted that he had commenced work at some stage. 

14. The Tribunal accepts the applicant’s oral evidence, supported by photographs of his attendance at a Citi Project Marketing trade show, emails between himself and the sponsor, and a chart prepared by the applicant setting out the projects he worked on, that he commenced work with Citi Project Marketing Pty Ltd.

15. The Tribunal further accepts, based on the applicant’s oral evidence, that his period of employment with Citi Project Marketing Pty Ltd was characterised by a lack of communication with Mr Samuel Patterson, and that his last period of active employment was around September of 2016.  The applicant explains, and the Tribunal accepts, that he was left with unpaid wages arising out of this employment, despite assurances by Mr Samuel Patterson that payment would be forthcoming.  This evidence is consistent with the lack of formal documents indicating the applicant’s wages during his period of employment with Citi Project Marketing Pty Ltd. 

16. The Tribunal finds that the applicant was working in the nominated role with Citi Project Marketing until September of 2016.

17. As the applicant was experiencing difficulties being paid by Citi Project Marketing Pty Ltd, he began to look for a new sponsor.  The applicant gave evidence that he had never been issued with a termination letter of any sort by the Citi Project Marketing, and believed, based on the advice given to him by his registered migration agent, that he had taken appropriate steps to try and locate a new sponsor, particularly as the new sponsor had filed all of the appropriate paperwork with the Department.

18. The applicant explains that when the SMU contacted him, he was surprised and taken aback by Mr Patterson’s false statements, especially as he was left unpaid by Mr Patterson. He admits that he allowed his details to be put on the Sotheby’s website.  The Tribunal vigorously questioned the applicant in relation to this action, explaining that this action might cause the Tribunal to accept that he had commenced work with Sotheby’s, whether in a paid or unpaid capacity, prior to the nomination being approved.

19. The applicant explained that Sotheby’s, despite being a large international company, was in the process of setting up its Queensland office.  He explained that it was helpful to Sotheby’s to have his profile on the website, even in a period where he was not working, as his role was geared toward attracting and working in the Chinese market.  He explains that he did not believe there was anything wrong with this, as his contract with Sotheby’s made it clear that his employment did not commence until the nomination was approved.  He also explains that he was trying to assist his new prospective employer. A copy of the executed employment contract, dated 22 June 2016, and reflecting this term, has been provided by the applicant to the Tribunal.

20. Mr Arthur gave evidence consistent with the applicant’s in respect of the website/profile posting concerns raised by the delegate.  Mr Arthur explains that as the office was being newly established, the website was being developed, and he didn’t think there was any difficulty with posting the applicant’s information, along with other employee information, which was being collated around the same time to prepare the website for launch. The Tribunal accepts that despite the applicant’s details appearing on the Sotheby’s website, he was not working in a paid or unpaid capacity until April of 2017.

21. The Tribunal questioned the applicant, Mr Arthur, and Ms Rapisarda separately, to avoid any concerns that the witnesses had aligned their evidence with each other.  The Tribunal asked all 3 witnesses when the applicant commenced work, whether paid or unpaid, with Sotheby’s.  All of the witnesses responded that the applicant’s employment commenced in April of 2017.

22. The applicant also explained that the period from September of 2016 until April of 2017 was incredibly stressful, for the applicant and his wife financially.  The applicant gave evidence that he had to borrow money from a family friend, which he was in the process of paying back, in order to make ends meet.  The applicant and his wife openly discussed the amount borrowed, and the repayments that had been made, in the presence of the Tribunal.  The applicant and his wife both logged in to their bank accounts to confirm the amount of the last repayment they had made in relation to this loan.  The Tribunal accepts that the applicant had to borrow money during the period the Sotheby’s nomination was pending.  The Tribunal considers that this evidence, in conjunction with the evidence of both Mr Arthur and Ms Rapisarda, along with the applicant’s own evidence, is consistent with the applicant having not worked for a period prior to the approval of his current nomination.  The Tribunal finds that the applicant commenced work with Sotheby’s only after he had been granted work rights on his Bridging Visa E in April of 2017.

23. Whilst Mr Arthur and Ms Rapisarda presumably have some interest in the applicant’s maintaining employment at Sotheby’s, they gave their evidence under oath, and have nothing personally to gain in relation to the matters before the Tribunal.  There is no legitimate basis on which the Tribunal could disregard their evidence.  The Tribunal places considerable weight on the evidence of Ms Rapisarda, in particular, as she is the Human Resources Director of Sotheby’s, and in a position to know when employees have commenced paid or unpaid work with the company. 

24. The Tribunal finds that the applicant did not work unlawfully for Sotheby’s.  The Tribunal finds that the applicant has not breached condition 8107(3)(a)(ii)(B) of his 457 visa.

25. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

27. The Tribunal has no jurisdiction with respect to the second named applicant.

    Bridget Cullen
    Member