Lin (Migration)

[2018] AATA 5853

Lin (Migration) [2018] AATA 5853 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shuguang Lin
Ms Dongli Lu
Mr Junze Lin

CASE NUMBER:  1803027

HOME AFFAIRS REFERENCE(S):           BCC2015/3586103 BCC2015/3586192

MEMBER:Karen Synon

DATE:18 December 2018

PLACE OF DECISION:  Melbourne

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

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

Statement made on 18 December 2018 at 6:22pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457(Temporary Work (Skilled)) – Federal Court remittal – Welder – employment ceased – sponsor’s business ceased operations – no new approved nomination within 90 days of ceasing employment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348, 359A, 375A
Migration Regulations 1994, 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 19 January 2016 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 19 January 2016 the basis that the applicant had not complied with Condition 8107(3)(b).

3. The applicant applied for review of the decision to cancel his visa on 25 January 2016 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

4. The matter was remitted by the Federal Circuit Court of Australia by consent on 31 January 2018 on the basis that the existence of a section 375A certificate issued by the department was not disclosed to the applicant by the previously constituted Tribunal.

5. On 8 October 2018 the presently constituted Tribunal (‘the Tribunal’) formed the view that the s.375A Certificate issued by the department was invalid in its current form. After correspondence to the department about this, on 10 October 2018 the department revoked the Certificate specifically stating:

   …I hereby revoke the certificate regarding the disclosure of certain information to the Administrative Appeals Tribunal under section 375A of the Migration Act 1958, dated 29 January 2016, on the basis that the original certificate is invalid because folio numbers were not indicated and there was not always sufficient reasons given for the non-disclosure on ‘public interest’ grounds.

   Invitation to comment and provide information

6. On 3 October 2018, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     The information is from the Department of Home Affairs records and relates specifically to [the applicant]:

   o    You were granted a Subclass 457 visa on 15 February 2012.  It was originally valid to 15 February 2016 but was cancelled on 19 January 2016.  Your visa was sponsored by Ausray Industries Pty Ltd.

   o    Your Subclass 457 visa was subject to condition 8107 work restriction, which required in part: that you must not cease to be employed by your approved sponsor; and that if you ceased to be employed by your approved sponsor, the period must not exceed 90 consecutive days.

   o    You ceased being employed by your sponsor on or before 26 March 2015.  On 19 January 2016, the date your visa was cancelled, you had not worked for your sponsor for more than 90 consecutive days.

   o    There is no information to indicate that you recommenced employment with your sponsor.

   o    A recent check indicates that no new relevant business nominations have been approved in respect of you since your visa was cancelled.

   In conducted this review in your case:

   ·We will first consider if there are grounds to cancel your Subclass 457 visa in accordance with s.116 of the Migration Act.

   ·If we determine that there are such grounds, we will then consider if your visa should be cancelled, taking into account all the relevant information.

   This information is relevant because it indicates that:

   ·You breached a condition of your subclass 457 visa, and there are grounds for cancelling your visa under s.116(1)(b) of the Migration Act

   §There are circumstances which may indicate that your Subclass 457 visa should be cancelled including that:

   §Your Subclass 457 visa was granted to you for the purpose of undertaking particular employment with an approved sponsor and that purpose ceased when you stopped being employed by your sponsor.

   §You have not secured a new approved sponsor, because no new business nomination has been approved for you.

   If we rely on this information in making or decision, we may:

   ·Determine that you breached your visa condition and therefore are there are grounds to cancel your Subclass 457 visa under s.116(1)(b) of the Migration Act.

   ·Decide that your visa should be cancelled.

   You are invited to give comments on or respond to the above information in writing.

   If we determine that there are grounds to cancel your Subclass 457 visa, it will go on to consider if your visa should be cancelled.  In making this assessment, the Tribunal will consider all relevant information, which may include, but is not limited to:

   o    The purpose of your travel to and stay in Australia

   o    The degree of hardship that may be caused by visa cancellation

   o    The circumstances in which the ground for cancellation arose

   o    Your past and present conduct towards the department

   o    Australia’s obligations under international agreements

   o    The impact of cancellation on any victims of family violence

   o    Any other relevant matters.

   The Applicant’s Response

7. The applicant sought an extension of time in which to respond which was granted.  On 28 October 2018 the applicant, via his representative, provided a short submission which relevantly stated:

   Due to the change of visa requirements for a subclass 457 visa made in (sic) 17 April 2017, my client has no chance to get a new nomination to be approved by the Department.  Pursuant to your letter, your office is of the view that my client is still in breach of condition 8107.

   My clients’ circumstances:

   ·Ausray was wound up on 20 August 2015 and he was left with no choice but to seek new employment in compliance with the Regulations.

   ·My client has complied with the regulations of the Department to the best of his abilities.  The winding up of Ausray and (sic) is beyond the control of my client.  As such, my client’s conduct was unintended and unavoidable.

   ·My client has borrowed a sufficient sum of money to pay the sponsor before his 457 visa was granted; and

   ·My client may face financial hardship should be go back to China now.

8. On 31 October 2018 the applicants were invited to a hearing on 14 November 2018 to give evidence and present arguments.   This invitation was accepted.  However, the afternoon before the hearing the Tribunal was advised:

   I have just been informed by my client that he very sick today and he is unable to attend the hearing scheduled for tomorrow.

9. In response the Tribunal requested medical evidence to support this.  After business hours on 13 November a generic medical certificate was provided stating the applicant “is unwell and unable to attend school/work from 13/11/2018 to 18/11/2018 inclusive”.  The hearing was rescheduled until 4 December 2018 and the applicants advised of this on 16 November 2018.

10. The applicant appeared before the Tribunal on 4 December 2018 to give evidence and present arguments.  The hearing was conducted by video with the applicant in Perth.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

    Jurisdiction of secondary applicants

12. 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 other applicants’ visas were 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 those other visas 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 them. The Tribunal explained this at the hearing and the applicant said he understood and did not have any questions about this.

13. 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

14. 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?

15. 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 was attached to the applicant’s visa. Condition 8107(3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days’.

16. On the basis of the information before it the Tribunal finds that the applicant was granted a subclass 457 visa on 15 February 2012 to occupy the nominated position of ‘Welder’ at Ausray Industries Pty Ltd.

17. The applicant said he arrived in Australia in March 2012 and commenced employment as a Welder in a “toll company”.  He could not remember the name of this company.  He worked there for 4 months and left because they made him redundant.  He got this first job while he was in China where he sat an exam in Xiamen.  When he was made redundant a welding friend told him about the job at Ausray Industries. He commenced at Ausray Industries (he thinks) in approximately November 2012 and finished working there after the company went bankrupt.  It was not the case that he finished there in March 2015 (when the department officers visited) because they often did work after this.  He finished at Ausray Industries in August 2015.  He worked 40-50 hours a week at Ausray Industries from November 2012 to August 2015 and was paid $35 an hour.  Asked if he had worked as a welder in the 3 years since then the applicant said no.  He did not notify the department that he had ceased working at Ausray Industries because he did not realise it had become bankrupt unil the department wrote to him.

18. In September this year he and his wife were granted work rights on their bridging visas.  He has applied for some jobs in his industry but has not been successful.  He thinks this might be due to his visa situation.  His wife works in a restaurant.  Asked how he supported himself and his family in the lengthy period between finishing at Ausray Industries and getting his work rights the applicant said he had some savings; took loans from friends; and got some food from a friend who opened a supermarket and gave him food that was about to expire.

19. The applicant agreed he ceased employment with at Ausray Industries Pty Ltd in August 2012 but said he had applied for another visa within the 90 days.  He said the department did not approve this visa.  After some discussion and a summary explanation of the letter the Tribunal sent him in accordance with s.359A and s.359(2) on 3 October 2018 (which he said he did not know about) the applicant agreed that he did not commence employment on another 457 visa with 90 days of finishing at Ausray Industries.

20. Notwithstanding the conflict in the dates the department asserted and the applicant claims he finished working as a welder at Ausray Industries, the Tribunal is satisfied that, after the applicant ceased working at Ausray Industries, he was not employed on a 457 visa for a period exceeding 90 consecutive days.

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 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 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) ‘General visa cancellation powers’.

23. Asked at the hearing why he thought his visa should not be cancelled he responded “I can’t say anything”.  He said that after he stopped working at Ausray Industries he still held a valid visa.  Asked if he has any fear in returning to China the applicant said he has not been back yet so he does not know.  He speaks to his son on the internet.  Invited to say anything else ta all the applicant again asked about the correspondence the Tribunal sent to him via his representative which it again briefly summarised.  The applicant repeated that after he stopped working he still held a valid visa.  The Tribunal explained that the 457 visa is attached to a specific occupation with a specific employer.

    The purpose of the applicant’s travel to and stay in Australia

24. The applicant came in March 2012 to be employed as a welder initially for “a toll company” which he cannot remember the name of but, after 4 months he was made redundant and then commenced employment at Ausray Industries in approximately November 2012 and finished (he claims) in August 2015 when the company went bankrupt.  Although another nomination was lodged in respect of him, this was not approved and the applicant’s evidence is that he has not been employed as welder in Australia since August 2015; a period of over 3 years.

25. A 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that an applicant will be able to remain in Australia on a permanent basis.  The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time as a welder for Ausray Industries.  This purpose no longer exists.  As over 3 years has passed since the applicant ceased employment with Ausray Industries and he has not been, since then, the subject of an approved nomination, the Tribunal has formed the view that the purpose of the applicant’s further stay in Australia is no longer viable.

    The degree of hardship that may be caused by visa cancellation

26. The Tribunal accept that the applicant and his wife may experience some hardship should they have to return to China.  Although this was not expressed by the applicant at the hearing, it was submitted that the applicant had borrowed a “sufficient some of money” and that he may face financial hardship should he go back to China now.

27. However, the applicant and his wife have always been in Australia on temporary visas and they should not have had any reasonable expectation of permanency.  That they have chosen to stay here, including for almost 3 years since the 457 visa was cancelled, was their decision.  Further, the Tribunal notes the applicant’s evidence that he has not been able to work in Australia for a lengthy period of time until recently provided with work rights on his bridging visa and that despite these work rights, he has not been able to find employment in his industry.  Given the applicants stayed in Australia for at least 2 years with no income the Tribunal gives any hardship they may experience on their return to China little weight.

    The circumstances in which the ground for cancellation arose

28. The Tribunal notes that the applicant did not voluntarily cease working with his former sponsor, Ausray Industries and that he did lodge another nomination with Milliarummarra Exploration Pty Ltd however this was refused by the department.  The written submission provided on behalf of the applicant by his representative stated that because Ausray Industries was wound up on 20 August 2015, the applicant was left with no choice but to seek new employment in compliance with the Regulations and he complied with the Regulations to the best of his abilities.  The Tribunal gives this some weight in the applicant’s favour.

    The applicant’s past and present behaviour towards the Department

29. There is no information known to the Tribunal which indicates that the applicant’s past and present conduct towards the department has not been unsatisfactory.  However his own evidence was that he did not advise the department that he had ceased employment with his sponsor.  He claims this is because he did not know of the bankruptcy of the business until he received the letter from the department (the NOICC).  However, as this was sent to the applicant in December 2015, the Tribunal is not persuaded that the applicant did not know Ausray Industries had closed by the latest August 2015, some 3 months earlier.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

30. The applicant’s visa was cancelled on 19 January 2016 and he now holds a Bridging visa E.  There is no evidence before the Tribunal that cancellation would result in him being subject to detention, or that indefinite detention is a possible consequence of cancellation.

31. While the Tribunal notes that should it affirm this decision the applicant and his wife will become unlawful non-citizens there is no evidence before it to indicate they would not depart Australia voluntarily. Further, while s.48 of the Migration Act means the applicant will have limited options to apply for other visas onshore, these are intended consequences of the legislation when a visa is cancelled under these grounds. Therefore the Tribunal does not foresee a situation that would result in the applicant’s detention or indefinite detention.

    Whether any international obligations would be breached as a result of the cancellation

32. There is no evidence before the Tribunal regarding this matter.  The Tribunal asked the applicant if he holds any fears for his safety or security should he have to return to China.  He responded he did not know as he has not been back.  The Tribunal is of the view that if the applicant held any such fears he would have expressed this given the opportunity to do so.  Further, the Tribunal notes that the applicant’s son (the third named applicant in this review) has never resided in Australia but has stayed in China during the entire period of his parent’s temporary residency here.

    Degree of hardship and consequential cancellations under s.140

33. The Tribunal notes that there are consequential cancellations of the visa for the applicant’s wife and that her visa has been cancelled as a consequence of the applicant’s visa cancellation.  The applicant’s son (the third named applicant) has never lived in Australia.  In any case these visas were only granted to his wife and son on the basis of them being family members of the family unit of the applicant and it is not an unintended consequence of the legislation that if the applicant’s visa is cancelled then his family members visas are consequentially also cancelled.  In this respect the consequential cancellations will not result in the separation of the applicant from his wife and keeps the immigration status of all family members aligned.  The Tribunal therefore accords this consideration little weight.

1. Further, the written submission provided on behalf of the applicant by his representative stated that “due to the change of visa requirements for a subclass 457 visa made in (sic) 17 April 2017, my client has no chance to get a new nomination to be approved by the Department”, however the Tribunal notes that the Subclass 457 program did not close until March of this year, over 2 years after the applicant’s visa was cancelled and also 2 years after the visa would have expired by the effluxion of time.  The Tribunal therefore gives this little weight.

2. The Tribunal has taken into account all of the available evidence in this case.  Having considered all the circumstances the Tribunal is not persuaded that it should exercise its discretion not to cancel the visa.  In this case the Tribunal has found that the applicant breached condition 8107(3)(b) because after he ceased employment with Ausray Industries he ceased employment for a period exceeding 90 consecutive days, and it is not satisfied that any of the matters raised by the applicant, his representative or evident on the material before it, either individually or cumulatively, is sufficient for the Tribunal to exercise its discretion not to cancel the visa.

3. Finally, the Tribunal records that the applicant gave evidence that he did not know about the correspondence sent to him via his authorised representative dated 3 October 2018.  The Tribunal summarised this information for the applicant at the hearing and also notes that the same information was fully explored at the hearing conducted by the previously constituted Tribunal.  In addition the Tribunal delayed finalising this decision for 2 weeks following the hearing to enable it to consider any additional submission that may have been provided after the applicant spoke with his representative.  None has been provided.

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

   DECISION

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

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

   Karen Synon
   Member