Phan (Migration)

[2021] AATA 844

Phan (Migration) [2021] AATA 844 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tien Duc Phan
Mrs Tuyet Chinh Tran
Mr Tien Dung Phan
Miss Tuyet Nhi Phan

CASE NUMBER:  1930161

HOME AFFAIRS REFERENCE(S):          BCC2019/2454199

MEMBER:Bridget Cullen

DATE:16 February 2021

PLACE OF DECISION:  Brisbane

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 16 February 2021 at 10.25am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – commence work within 90 days of arrival in Australia – position of Construction Project Manager – initial sponsor’s business ceased – applicant ceased employment with the sponsor for 60 days – limited employment details – no approved sponsorship or nomination for new employer – visa would already have ceased – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 116, 140, 348, 359
Migration Regulations 1994, Schedule 8, Condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400
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 17 October 2019 made by a delegate of the Minister for Home Affairs 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)(1) of the Act on the basis that the applicant did not comply one of the conditions attached to his visa, and the delegate did not deem it appropriate to exercise their discretion and not cancel the visa. As the primary review applicant’s visa was cancelled, the secondary applicant’s visas were cancelled by operation of s.140(1) of the Act. 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 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.

4. The applicants appeared before the Tribunal on 25 May 2020 and 12 June 2020 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. There were difficulties in the first hearing with the interpreter. The Tribunal became concerned very early on that the interpretation was “conversational” and the interpreter was summarising rather than interpreting what was actually said. The Tribunal raised this with the interpreter, and the interpreter told the Tribunal that he “was doing his best” and that “it would be easier if the applicant spoke in English”. The Tribunal pointed out that this was an unhelpful approach, as the applicant was entitled to an interpreter in his native language. Consequentially, the Tribunal adjourned the hearing, so that a new interpreter could be obtained who would facilitate the applicant’s ability to engage with the Tribunal, understand the proceedings, and provide information.

6. At the second hearing, on 12 June 2020, the Tribunal heard the applicant’s evidence, and also received oral evidence from Craig Oates, the applicant’s prospective future employer.

7. The applicants were represented in relation to the review by their registered migration agent, Ms Carina Ford of Carina Ford Immigration Lawyers (MARN 9802862). Ms Thuy Vu, also of Carina Ford Immigration Lawyers (MARN 1807796) attended the Tribunal hearing.

8. 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

9. 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.

10. In assessing whether the ground for cancellation exists under s.116(1)(b) of the Act, the Tribunal has the following information:

    -The whole of the Department file that was before the delegate who cancelled the visas;

    -Representative Submissions with 4 Annexures, dated 18 May 2020;

    -Further Representative Submissions with 3 Annexures, dated 5 June 2020;

    -An acknowledgement of application for sponsorship from Oates Contracting Pty Ltd, dated 16 July 2020; and

    -Approval of sponsorship from Oates Contracting Pty Ltd, dated 22 July 2020.

    Does the ground for cancellation exist?

11. 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 attached to the applicant’s visa. This condition contains several requirements and conditions in the visa, but relevant to this application for review, as it formed the reason for the cancellation, was the breach of subclause (3)(a)(ii). This subclause requires that the applicant comment work within 90 days of their arrival in Australia.

12. The applicant was originally granted the visa on 22 February 2017, after being sponsored by Essen Building Construction Pty Ltd in an approved nomination, for the position of Construction Project Manager (ANZSCO 133111).

13. The Department became aware that on 28 August 2018, Essen Building Construction Pty Ltd’s ABN was cancelled, and as a result, their sponsorship agreement was cancelled as the Department was not notified that the business was no longer operating.

14. At first instance, the Department, on 20 August 2019, sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant, for a breach of condition as they had ceased employment with their sponsor for a period exceeding sixty consecutive days. Following the applicant’s response, the Department sent out a new NOICC, superseding the previous one, on 23 September 2019, which became the basis for this cancellation.

15. The visa holder, when the Department issued the NOICC, agreed that there were grounds for cancellation. The visa holder at that point claimed that he went to the company to take up tasks and reviewed project files, but was told to research project-related issues and that whenever there was an official announcement, he would be begin working.

16. The delegate had considered that the applicant did not commence work for Essen Building Construction Pty Ltd, based on the applicant’s response to the first NOICC issued on 20 August 2019.

17. Since appealing at the Tribunal, the applicant’s representative submitted the following on 18 May 2020:

    “The Review Applicant instructs that in his response to the NOICC on 26 August
    2019, where he states that he “went to the office to start work as a Project Manager
    but was told that the company no longer operating” was an incorrect statement. As a
    Construction Project Manager, he is required to be on the construction site
    managing the work however, was informed by EBC to wait until there was an
    official announcement and, in the meantime, he should continue to complete the
    administrative component of his role. As such, what he meant was that he did not
    start work onsite as a Construction Project Manager as these projects were on hold however, did indeed start work for the company upon his arrival to Australia.

    The Review Applicant instructs that he kept waiting for and asking the business to arrange work for him to go onsite however, was told to wait. During this period, the Applicant was attending the head office to review documents and undertake research tasks as required. The Review Applicant has been able to provide payslips for the period of August 2017 – October 2017 (see Annexure 4). Whilst the payslip only covers a short period, we submit that the amount earned to date in the document indicates that the Review Applicant had been working with the Sponsor for some time. The Review Applicant instructs that due to the lengthy time that has passed, he has been unable to find any further documents.”

18. At the first hearing, the Tribunal put the applicant on notice that, in relation to the applicant’s claimed pay, he had referenced an account at Westpac Bank. The Tribunal advised that it would be interested in seeing the records from the Westpac Bank account that the applicant claimed his pay was deposit to, as well as any superannuation records, and a copy of the applicant’s Integrated Client Account, with the ATO.

19. In the Representative’s second set of submissions, filed following the first hearing, the applicant provided a bank statement from the Commonwealth Bank, which reflected deposits of approximately $15,000 having been made. The Representative acknowledges that the figures on the bank statement do not exactly align with what the applicant was expecting to be paid.

20. Nevertheless, despite these discrepancies, the applicant says that he was happy to be getting paid, and that this constitutes strong evidence that he was being paid.

21. The representative lays blame for the payroll irregularity with the employer, stating that it was evident that they did not undertake correct processes and keep adequate records, and noting that this is outside the applicant’s control.

22. The representative did accept that the applicant should have been more diligent in both checking his payslips, tax records and superannuation, however states that the onus is on the employer to do the right things in line with their legal obligations.

23. The Commonwealth Bank statements do not, in the Tribunal’s view, establish that the applicant was being paid by his sponsor in accordance with the sponsorship agreement.

24. The Tribunal asked the applicant, adopting the process set out in s.359AA of the Act, why no payments were made by his sponsor to the Westpac Account, given that he said he provided the sponsor with the Westpac Account details.

25. The applicant said that he had lost his Westpac card, and so asked his employer to deposit to his Commonwealth account instead. The Tribunal also raised concerns with the applicant that the payslips provided to the Tribunal may not be genuine, as the account details listed on the payslips do not reflect which account his pay was actually deposited to. The applicant then claimed that he verbally asked his employer to change accounts, but did not explain anything further about the genuineness of the payslips.

26. The Tribunal asked the applicant why his pay was paid in one lump sum, on one day only, as the Commonwealth records reveal a payment of $15,000 on 8 June 2017 from “Sam nguyen”. Mr Nguyen was the Director of the sponsor, Essen Building Construction Pty Ltd. The applicant says the reason for the large, singular payment was because the company was not sure if they would be paying him weekly or fortnightly. He says he was “happy to share the difficulties the company was having at the time”. The Tribunal put to the applicant, again adopting the process set out in s.359AA, its concerns that a singular deposit of $15,000.00 was unusual, and may not reflect a genuine employment relationship. The applicant just said that he did not have any concerns about this.

27. In response to the Tribunal’s questions about what work and tasks the applicant performed at Essen, his response was to generically call it “project manager” work and said, “[m]y initial role was to work at the construction site”. The Tribunal specifically asked the applicant to describe the “administrative work” he claimed to have performed while he was waiting to commence the “project manager” work. He said he had to “look at plans” and that the company built houses, but did not provide any detail about the types of projects, or provide information that would give the Tribunal any comfort in believing that he did actually perform any work.

28. The Tribunal became aware, having conducted its own enquiries of the public licence histories available with the Queensland Building and Construction Commission that the licence for Essen Construction Pty Ltd was cancelled on the contractor’s request on 2 November 2016. The QBCC licence records also reflect that the last residential construction work performed by Essen Construction Pty Ltd was during the 2015-2016 Financial Year. Adopting the process set out in s.359AA of the Act, the Tribunal made the applicant aware of the information before it, the relevance and possible consequences of the Tribunal relying upon it, and explained that it might have concerns that, as the employer’s licence to build had been cancelled before the applicant purported to commence work, the Tribunal might have difficult accepting that he did commence work. The Tribunal explained that a builder purporting to construct houses could not lawfully engage in residential construction work without holding a licence. The applicant did not require further time to response, and said that he did not know this information until the Tribunal advised him, but he still went to work and “worked on files”.

29. The Tribunal also expressed concern that there were no tax or superannuation records before it, in relation to his own pay. The applicant responded that paying tax was his employer’s responsibility.

30. The Tribunal does not accept the applicant’s evidence that he commenced work for the sponsor, at any point. There is nothing standard about the arrangements for pay, and the Tribunal does not accept that the payment of $15,000 made to him by Sam Nguyen was a wage payment. The Tribunal does not accept that the wage records before it are genuine, as there are significant discrepancies between the account details reflected on them, and the account information provided by the applicant.The applicant has been unable to offer any sensible explanation that aligns with normal business practices.

31. The Tribunal finds that the applicant did not commence work for his sponsor, Essen Building Construction Pty Ltd., and therefore did not comply with Condition 8107 of his visa.

32. 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

33. 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’.

34. When the NOICC was issued, the applicant provided the following reasons as to why the visa should not have been cancelled:

    -The circumstances which in the ground for cancellation arose was beyond the applicant’s control and that attempts to commence working were without success;

    -The applicant had no idea about the procedures related to the sponsoring of his family and that they were the company’s affairs;

    -Upon receiving the NOICC, his family were bewildered and mentally affected and that his children were sent to the hospital because they were stressed and diagnosed by neurologists as being in shock;

    -He had been offered a position by a different company and that company was conducting necessary procedures; and

    -His family had formed close ties with the local people for participating in the community and charitable activities.

35. The representative submissions of 18 May 2020, flags the following:

    -The applicant did commence work at their job, however was only receiving administrative and research work. The applicant was confused as to why they were not on the construction sites, however trusted the company’s procedure and continued to attend the office. During this period, the applicant applied for both a student visa and a new nomination, however both were refused;

    -The applicant has now received a job offer from Oates Contracting Pty Ltd and were willing to sponsor the applicant, and that the applicant remains willing to fulfil the purpose of their travel;

    -Except for condition 8107, there is no evidence before the Tribunal suggesting the applicant had not complied with any other conditions of his visa, and notes that these factors, and the ground for cancellation, were born outside their control;

    -The applicant has been cooperative towards the department, including responding to the NOICC promptly; and

    -There would be a severe degree of hardship on the applicant and his family, and that the cancellation has led to mental health issues in the family.

36. 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 purpose of the applicant's travel to and stay in Australia was to work. On 22 February 2017, he was granted the Temporary Work (Skilled) subclass 457 visa that is the subject of this decision. The purpose of that visa was for the applicant to engage in temporary employment for an Australian business Essen Building Construction Pty Ltd as a Construction Project Manager from 22 February 2017 until 22 February 2021.

37. The Tribunal has found that the applicant never commenced work for the sponsor, thereby never fulfilling the purpose of the visa. Although there is some evidence before the Tribunal that the applicant has located a new prospective sponsor, there is no evidence before the Tribunal that a nomination application has been made by Oates Contracting Pty Ltd. As at the time of decision, the evidence before the Tribunal is that the applicant has not become the subject of an approved sponsorship or nomination.

38. The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list; and that if an applicant had been unable to secure an approved nomination, then this meant the applicant was not able to fulfil the purpose of the 457 visa. The Tribunal considers that this weighs strongly in favour of cancelling the visa.

39. 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 this 457 visa has never been fulfilled by the applicant, in that he never commenced work for the sponsor. It has now been nearly 4-years, and to date the applicant has not been able to secure another approved nomination, under the 457 visa programme, or otherwise.

40. 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 arrived, together with the finding that the applicant never commenced work for Essen Building Construction Pty Ltd, weigh strongly in favour of cancelling the 457 visa.

41. The Tribunal has considered the applicant's compliance with visa conditions and is satisfied that other than Condition 8107(3)(aa)(i), the applicant has complied with visa conditions. However, it was the core purpose for which the visa was granted, so the Tribunal considers this type of non-compliance to weigh in favour of cancellation, given the applicant was the holder of a visa for the purposes of temporary work.

1. The Tribunal notes the applicant's assertions that he has made efforts to secure another nomination, and has considered the evidence from Oates Contracting Pty Ltd, but there is no evidence before the Tribunal indicating that the applicant has not been successful in these efforts. The Tribunal finds that these circumstances weigh in favour of cancelling the applicant's visa.

2. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. The applicant also has a wife who is a secondary applicant on his 457 visa, and the decision will impact her. The applicant has two children in school – one born in January of 2007, and the other born in October of 2003. The Tribunal understands that they do not wish to return home to Vietnam, and that there may be some disruption to their studies. However, the Tribunal notes that had the visa not been cancelled, it would have expired on 22 February 2021 – in less than a week. In other words, the applicants will have enjoyed the full benefit of the visa, by having been able to remain in Australia, during the time this review has transpired. They had no entitlement to stay beyond 22 February 2021, as this was a temporary visa.

3. 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 refuses to depart voluntarily. 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.

4. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant on the basis of the evidence before it 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 approved nomination since not commencing work with his original sponsor, nearly 4-years ago now.

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

   DECISION

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

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

   Bridget Cullen
   Member