Li (Migration)

[2020] AATA 1147

Li (Migration) [2020] AATA 1147 (3 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chunfu Li

CASE NUMBER:  1922577

HOME AFFAIRS REFERENCE(S):          BCC2017/1828414

MEMBER:Antoinette Younes

DATE:3 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 3 April 2020 at 11:10am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Business (Long Stay)) – Federal Circuit Court remittal – not employed by sponsor or associated entity for more than 90 days – work for other entities without approved nomination – claim of misconduct by sponsor – discretion to cancel visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359AA

Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)

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 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(b) of the Act on the basis that the applicant did not comply with Condition 8107(3)(b). 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. This matter was previously before the Tribunal, differently constituted and on 8 October 2018, the Tribunal affirmed the decision to cancel the applicant’s subclass 457 Visa. On 12 August 2019, the Federal Circuit Court of Australia made orders by consent remitting the matter to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 1 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted by telephone with the assistance of an interpreter in the Mandarin and English languages.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

6. 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

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(b).

8. 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

9. 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)(b) which provides that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

10. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal in support of the application for review.

11. Specifically, the Tribunal advised that:

    ·    On 27 March 2014, the applicant was nominated to work in the position of Bricklayer (ANZSCO 331111).  The standard business sponsor that nominated the applicant in the most recently approved nomination for the visa is Max Construction (Australia) Pty Ltd (the sponsor). 

    ·    The nominated occupation is not one specified in the relevant instrument referred to in subclause 8107(3A) to exempt the applicant from having to comply with the requirements of subclauses 8107(3)(a). Consequently, while the applicant continues to hold the subclass 457 visa, he can only lawfully work in Australia for either the sponsor or an associated entity of the sponsor.

    ·    On 19 April 2016, the Department received written notification from the sponsor that the applicant had ceased employment with the sponsor effective 1 September 2015. The sponsor did not inform the Department that the applicant had returned to work for the sponsor or any of its associated entities.

12. Based on the above information, the delegate concluded that it appears that the applicant has not complied with condition 8107 attached to his visa.

13. On 5 July 2017, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant responded.

14. In a statement of 28 July 2017, the applicant provided explanations, namely that:

    i)   The ground for cancellation does not exist. Since the grant of the visa on 1 October 2014 and until early 2017, he worked for the sponsor. He believes that the sponsor had provided misleading information to the Department. In October 2015, a year after he was granted the visa, he and other workers were told by the sponsor that they had to transfer to another company, whose owner is a friend of the sponsor’s owner. The reason provided was ambiguous and they were given paperwork to sign but they were not given copies of the documents. They were also told that they would be sent to work in Sydney.

    ii)     While they were in Sydney, Helen, one of the directors of the sponsor allowed her son to be in charge of their jobs. The son informed the workers of worksite issues and their duties by telephone and Wechat, a Chinese mobile social networking application. They continued to receive their wages from the sponsor, although he is unable to see payments from the sponsor in his account. He assumed that the payment was from the sponsor or the company to which they were told they would be transferred. They continued the same work at various construction sites in Sydney. There are photographs (attached) showing the applicant and his co-workers having dinner with Helen and her son.

    iii)   From May 2016 to December 2016, he took photographs of work sites and listed all the projects in which he worked (attached). Those projects were all assigned by Helen’s son. He has never been made aware that there was anything wrong with the sponsor.

    iv)   He is an experienced bricklayer and his only intention in Australia is to apply his skills and work for the sponsor. Initially it was the sponsor but later, Helen said that the sponsor would be changed but everything would be fine. He genuinely believed it and continued to work for Helen. He never intended to breach his visa conditions.

    v)    It was not until early 2017 that he realised that there could be something “dodgy” with the sponsor. His tax was deducted but he was never given any group certificates. He also heard rumours that the sponsor deliberately cancelled employees’ visas so that the sponsor could continue to sponsor more people. He therefore decided to find a new employer. Two months later, he found HLHB Pty Ltd and he applied for a change of employer in April 2017 and properly notified the Department.

15. The applicant provided the following:

    ·Multiple photographs of building sites, some of those photographs show the applicant working on the sites.

    ·A copy of a letter and confirmation of receipt to the Department, dated 21 April 2017 from the applicant advising that he had resigned from his current employer on 21 April 2017, that he was waiting for a new 457 nomination and that he would resume employment on approval of that nomination.

    ·Bank statements showing deposits from various entities to the applicant’s bank account.

16. In the course of the hearing, the applicant stated that no one from the sponsor told him that the nomination was cancelled and that he was simply told that there was no work.  When asked by the Tribunal, the applicant confirmed that he ceased working for the sponsor on 1 September 2015 but believed he continued to work for associated entities until early 2017. 

17. In accordance with s.359AA, the Tribunal advised the applicant that there is information in the Departmental file that on 5 July 2017 that:

    ·A telephone discussion took place between a Departmental officer and the applicant during which the officer advised the applicant that the Department had been notified that he had ceased employment with the sponsor in September 2015. 

    ·The applicant stated that he was still working for the sponsor; he said he was working for HLHB, the entity that purchased the sponsor.

    ·The applicant stated that HLHB had lodged a nomination to take over his sponsorship.

    ·The Departmental officer advised him that he can only commence working for the new employer upon approval of the nomination. The applicant stated that he was aware of this requirement.

18. The Tribunal noted that there is no corroborative evidence to support that he worked for associated entities.  He said “Ok…OK”.  The Tribunal asked the applicant about any further nominations and he said there is none.

19. On the evidence before, the Tribunal finds that the applicant ceased employment with the sponsor effective 1 September 2015 and that he continued to work subsequently for various entities, none of which is an associated entity.  The applicant’s bank statements show payments from entities such as Marshals Homes, CBA, Ausline Construction, and ADL Metal Pty Ltd which he claims he assumed they were from the sponsor but the is no corroborative evidence.  The Tribunal finds that the applicant continued to work with entities not associated with the sponsor, in breach of condition 8107(3)(b) attached to his subclass 457 visa.

20. The Tribunal finds that the applicant breached condition 8107(1)(b) in the manner described in the s.107 notice.

21. For those 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 visa should be cancelled.

    Consideration of discretion

22. There are no matters specified in the Act or Regulations that must be considered in the exercise of 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) ‘General visa cancellation powers’.

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

23. The applicant was granted the subclass 457 visa for the purpose of working in Australia for the specified sponsor but he ceased working for the sponsor and/or any of its associated entities in September 2015.  He continued to work in breach of a condition attached to his visa. 

24. Had it not been cancelled, the visa would have expired in October 2018 (granted on 1 October 2014).  He has expressed a desire to find a new sponsor and continue working.  This however has not happened for over 4 years.  In the course of the hearing, he gave evidence that he is not currently working in Australia and that he is supported financially by friends and family from China.  The Tribunal has some doubts but will accept this as plausible.  This however means that on his own evidence, he is not working, inconsistent with that initial purpose.

25. The applicant was granted a temporary visa for a specified period and to work for a  particular sponsor.  Although the purpose of the applicant’s travel to Australia was to work, the Tribunal is not satisfied that he has a compelling need to remain in Australia.

26. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·the extent of compliance with visa conditions

27. The primary purpose of the subclass 457 is to enable an overseas skilled worker to work in Australia.  The applicant has breached condition 8107(3)(b) attached to his visa. This condition requires that if the visa holder ceases employment, the period during which the visa holder ceases employment must not exceed 90 consecutive days. The Tribunal considers condition 8107(3)(b) to be a fundamental condition attached to the subclass 457 visa.

28. The Tribunal acknowledges the applicant’s explanations. However, the Tribunal considers breach of condition 8107(3)(b) to be serious as it goes to the core of the purpose of the visa.

29. The Tribunal has given this aspect significant weight in favour of cancellation.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

30. The applicant would like to remain in Australia to find another sponsor to enable him to work.  He gave evidence that he has no family in Australia.

31. The Tribunal recognises that cancellation of the visa has adverse impacts on the applicant, such as not being able to remain in Australia and work, however, the Tribunal does not consider those impacts to represent a degree of hardship to mean that the visa should not be cancelled.  The applicant was granted a temporary visa, which would have expired in 2018 but for its cancellation. To date, the applicant does not have a current nomination.

32. The Tribunal acknowledges that if the applicant’s visa is cancelled, he could be detained and be subject to removal from Australia.  Given that those are intended legislative consequences and in the applicant’s case, the Tribunal gives this aspect limited weight in the applicant’s favour.

33. Overall and for the above reasons, the Tribunal has given this aspect limited weight in favour of the applicant.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.

    The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

34. The ground for cancellation arose as a result of the breach of condition 8107(3)(b).  In the statement provided in response to the NOITCC, the applicant did not agree that the ground for cancellation exists.  He argued that he was working for an entity that had purchased the sponsor.  During a telephone discussion with a Departmental officer on 5 July 2017 the applicant advised that he was still working for the sponsor; he said he was working for HLHB, the entity that purchased the sponsor and that HLHB had lodged a nomination for him.  Despite being advised during that call he could only commence working for the new employer upon approval of the nomination and his confirmation of being aware of this requirement, he worked for other entities, in breach of the visa condition.

35. The evidence before the Tribunal indicates that the applicant had difficulties in obtaining a suitable nomination and instead has remained in Australia without a nomination.  The Tribunal considers those matters to be within the applicant’s control.

36. The Tribunal gives this aspect significant weight in favour of cancellation.

    ·past and present behaviour of the visa holder towards the department

37. The applicant responded to the NOITCC.

38. The Tribunal therefore gives some weight in the applicant’s favour.

    ·whether there would be consequential cancellations under s.140

39. There is no evidence of consequential cancellation in this case.

40. The Tribunal gives this aspect neutral weight.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

41. There are several mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation. If the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. 

42. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and in the applicant’s case, do not mean that the visa should not be cancelled.

43. The Tribunal gives this consideration neutral weight.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

44. There is no evidence before the Tribunal that any international obligations would be breached in case of cancellation.

45. The Tribunal gives this consideration neutral weight.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

46. The subclass 457 visa is a temporary visa intended to fill a shortage in the Australian labour market. The visa is not intended to be permanent and if an applicant wishes to remain in Australia on permanent basis, they must be granted a relevant visa following satisfaction of all the criteria of that visa.

47. The Tribunal gives this aspect neutral weight.

    ·any other relevant matters

48. There are no other relevant matters for the Tribunal’s consideration.

49. The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. There are factors in favour of cancellation and there are limited factors against cancellation. The Tribunal considers the most significant factor in favour of the applicant to be the potential hardship that he would suffer in not being able to continue working in Australia. This however must be considered in the context of the circumstances that gave rise to the cancellation which weigh heavily in favour of cancellation. 

50. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(b) exists and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

51. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Antoinette Younes

    
    Senior Member