Wen (Migration)

[2022] AATA 3988

Wen (Migration) [2022] AATA 3988 (10 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yu-song Wen

REPRESENTATIVE:  Ms Mengpei Gao

CASE NUMBER:  2204808

HOME AFFAIRS REFERENCE(S):          BCC2021/2383852

MEMBER:Noelle Hossen

DATE:10 November 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 10 November 2022 at 4:01pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – non-compliance with condition of visa – work only in nominated occupation – electrical engineer – site visit found visa holder undertaking construction work in position closer to site supervisor – paid less than contracted salary – discretion to cancel visa – language barrier and visa holder’s nervousness during site visit – workload surge, materials delays and staff shortages – employees performing additional tasks – payroll system error now corrected – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8607(1)

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 1 April 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(b) on the basis that the applicant did not comply with subclause (1) of condition 8607 attached to his 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. The applicant appeared before the Tribunal on 5 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Walter Lee (Chao-Lei Lee). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. 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

6. 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

7. 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 8607attached to the applicant’s visa. This condition requires that the holder must work only in the occupation (the nominated occupation) nominated by the nomination identified in the application for the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder.

8. In the Delegate’s Decision it is stated as follows:

   It appears Yu- song Wen (the Visa holder) may not have complied with subclause(1) of condition 8607 attached to his Visa. The condition states (in part):

   8607

   (1) The holder must work only in the occupation (the nominated occupation) nominated by the nomination identified in the application for the most recent Subclass 482 (temporary skill shortage visa) granted to the holder.

   Departmental records indicate the Visa holder last arrived in Australia on 26 July 2019 on a (Student Visa Subclass TU 500). The Visa holder was granted a Temporary Skill Shortage (Medium-Term) (subclass 482) visa on 8 July 2021 to work as an Electrical Engineer (ANZSCO023331) for nominated employer Walter Design and Development PTY LTD.

   According to ANZSCO, the duties of an Electrical Engineer are stated as followed:

   UNIT GROUP 2333 ELECTRICAL ENGINEERS

   ELECTRICAL ENGINEERS design, develop and supervise the manufacture, installation, operation and maintenance of equipment, machines and systems for a generation , distribution, utilisation and control of electric power.

   INDICATIVE SKILL LEVEL:

   In Australia and New Zealand:

   Most occupations in this unit group have a level of skill commensurate with a Bachelor degree or higher qualification. In some instances, relevant experience and/ or on – the -job training may be required in addition to the formal qualification (ANZSCO Skill Level 1)

   Registration or Licensing may be required.

   Tasks include

   Planning and Designing power stations and power generation equipment

   Determining the type and arrangement of circuits, transformers, circuit, transformers,   circuit – breakers, transmission lines and other equipment

   Developing products such as electrics motors, components, equipment, and appliances

   Interpreting specifications, drawings, standards and regulations relating to electric power equipment and use

   Organising and managing resources used in the supply of electrical components , machines, appliances and equipment,

   Establishing delivery and installation schedules for machines, switchgear, cables and fittings

   Supervising the operation and maintenance of power stations, transmission and distribution systems and industrial plants

   Designing and installing control and signalling equipment for road rail and air traffic

   May specialise in research in areas such as power generation and transmission systems, such as power generation and transmission systems transformers switchgear and electric motors, telemetry and control systems.

   Occupation: 233311 electrical engineers

   design develops and supervises the manufacture installation operation and maintenance of equipment machines and systems for the generation distribution utilisation and control of electric power. Registration or licensing may be required.

   On 26 August 2021 departmental officers conducted a visit to the employer Walter Design and Development Pty Ltd. Departmental staff conducted interviews with the Visa holder’s employer sponsor Mr Choa-Lei  Lee (Walter) as well as the Visa holder.

   When visa holder’s employer was asked by the Visa holder in his role as electrical engineer the Visa holders employer described the following:

   supervising staff at construction sites

   cooperate with treaties

   apprentice to Walter as Walter is the builder

   check that materials arrive correctly

   supervising construction work

   smart home systems

   site supervisor manager

   site manager

   CCTV

   Digital door lock

   Estimating

   purchase order

   During the interview the Visa holder’s employer was unable to provide any evidence of electrical work undertaken by the Visa holder. The majority of the evidence, including photos of site work indicated that the Visa holder was undertaking construction work.

   When interviewed by Department officers the Visa holder initially advised them that he was employed as an electrical engineer the Visa holder stated his duties are:

   discuss electrical wiring

   site supervisor

   welding stuff and organise stuff

   design wiring for residential project and electrical power points

   smart home system

   The Visa holders stated that he had installed two smart home systems at two different building projects, however it was found that one of those projects belong to another employee who is a senior electrician for the business.

   When questioned further, the Visa holder accepted that he was only involved in construction work. The Visa holder could not name any project that needed electrical supplies.

   The Visa holder stated that he earns $66,000 per year, paid into his and NAB account. The Visa holder stated that his fortnightly earnings are $2,240 net. This appears to differ from his contracted salary of $76,024 per annum that was recorded in the Visa holder’s letter of engagement supplied as part of the Visa holder’s application for the Temporary Skill Shortage visa.

   Department officers found that the Visa holder was unable to provide evidence of any electrical engineering work completed in accordance with the nominated occupation the Visa holder was purportedly employed under by Walter Design and Development Pty Ltd.

   On 28 October 2021 the Department issued a Notice of Intention to Take Action (NOITTA) to the Visa holders employer Walter Design and Development Pty Ltd, putting the above adverse information to them for comment. After considering the response and submissions, the Standard Business Sponsorship Agreement for Walter Design and Development Pty Ltd   was cancelled under section 140M of the migration act 1958 on 10 December 2021 due to failure to continue to meet sponsorship requirements.

   Based on this information it appears that the Visa holder did not work in the nominated occupation as identified in his application for his Temporary Skill Shortage Visa. As such there appears to be grounds for cancelling the Visa holder’s Temporary Skill Shortage medium-term (subclass 482) Visa under s. 116(1)(b) of the Act because the Visa holder has not complied with the condition of the Visa namely 8607 subclauses (1).”

9. On 23 March 2022 the Department notified the applicant that they intended to consider cancellation. The applicant responded in writing by email on 29 March 2022. The applicant did not agree that there were grounds for cancellation. The applicant provided information and reasons in his response to the Department as follows:

   “The Visa holder was stressed on the day the Department visited the workplace and interviewed him. Due to the intense circumstance and language barriers the Visa holder was nervous and” didn’t know how to explain myself properly resulting in forgetting to provide more information about the duties that I have been doing”.

   The Visa holder disputes he was unable to provide evidence of any electrical engineering work completed. He states that electrical plans that he was working on, email discussions with the electrician about wiring details and photos of electrical works were provided as evidence and were submitted to the Department at the time.”

10. The delegate referred to a letter from the employer to the Sponsor Monitoring Unit from Walter Design and Development Pty Ltd. The letter was dated 11 November 2021 and, in the letter, it explained that there were internal errors and the set up in their payroll system was incorrect. They stated that they still provided the right salary based on the employment contract attached. They said that they had incorrectly stated the fortnightly hours to be 80 hours when in fact it was 76 hours fortnightly. They apologised for the confusion as they have now corrected their payroll system. They included a payslip and a bank transaction history.

11. In response to the query about the fact that these employers had an obligation to ensure the sponsored person worked or participated in the nominated occupation program or activity the employer responded as follows:”

    We have to admit we have made the partial mistake of work arrangement that Wen, Yu- Song has been working more closely to the position of site supervisor instead of the position of electrical engineers due to our staff shortage during the COVID- 19 circumstances. Please refer to the attached documents of supporting document A and B which was published on 13 May 2021 by Building Industry Association, Master Builders Queensland. It shows trades and materials delays and cost increases because of a sudden surge in demand created by the” Home Builder grant “and “covid supply chain disruptions”. As a result, we are facing a situation is workload surge and staff shortage due to project increase suddenly and significantly. The report also shows many builders may not make it through the next 12 months due to the circumstance. To deal with this crisis, we asked him to do some jobs overlap between the site supervisor and electrical engineer to pass through COVID 19 crisis since the middle of July. After receiving the notice of intention by a ABF on 28 October 2021, we started working on the support documents on 1 November 2021. All we realise our work arrangement might be against the position description of employment contract. After that we immediately adjusted the arrangement of his works.”

12. In their written submissions the applicant stressed that “The sponsor employer is an architecture design and construction company, and the applicant is an in-house electrical engineer. Accordingly, the duties and tasks performed by the applicant unavoidably have their own characteristics of the construction industry. (please see the position description of the applicant’s nominated position of electrical engineers.)

    We submit there has been some miscommunication between the employer and the department during interview of the ABF’s site visit. The applicant did have performed some on-site works; however, the works were related to his position of electrical engineer and he was not a site manager or site supervisor of the employer’s construction works.

    We also submit that as long as the fundamental tasks and duties fall within the scope of electrical engineers tasks defined in the ANZSCO, without concrete evidence proving to the contrary the applicant’s relevant works conducted on construction sites including on-site supervision and coordination with contractors regarding electrical related task should not be construed as undertaking construction works rather than undertaking electrical engineer’s works in accordance with the tasks defined within his employ contract.”

13. Although the Tribunal accepts that the applicant was likely stressed when interviewed during the onsite visit by the Australian Border Force. His evidence might have been confused and there was a language barrier the Tribunal cannot ignore the letter written by his employer dated the 11 November 2021, that implicitly states that the applicant has been working more closely to the position of site supervisor instead of the position of electrical engineers due to their staff shortage during the pandemic.

14. At the time that the employer wrote the letter he did have time to reflect on the position. The Tribunal does not accept the evidence contained in the submissions as it is a retraction on the position and not supported by the evidence from the Australian Border Force interviews or the letter dated the 11 November 2021 written by his employer.

15. 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

16. 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.

    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:

17. The applicant was granted a Temporary Skill Shortage Medium Term (subclass 482 visa) on the 8 July 2021. The applicant had previously held 2 working holiday visas, and a student visa. His purpose of travel was to work as an Electrical Engineer for his employer. The applicant explained through his written submissions that he took the advice of his previous migration agent to apply for a student visa upon finding out about the problems with his visa. The Tribunal accepts that his interest is in Electrical Engineering. He provided references to show that he has been highly regarded by his work mates whilst working as an electrical engineer.

18. He said that he followed the advice of his migration agent to the extent that he reduced his working hours as an electrical engineer to 40 hours a fortnight in line with his application for a student visa.

19. As soon as he sought advice from his present migration lawyers, he cancelled his study plans and continued to work as an electrical engineer on a full-time basis.

20. The applicant is at the time of the hearing working in his chosen occupation. The Tribunal places a lot of weight on those facts in favour of the applicant’s case.

    The extent of compliance with visa conditions:

21. There is no evidence that the applicant has deliberately failed to comply with his visa conditions. The sponsor was having some difficulties, like most other businesses during the covid pandemic and so he allowed the applicant to be engaged in other work to assist the nominated company.

22. The applicant is now complying with his visa conditions and his employer has ensured that there is total compliance with the conditions.

23. The Tribunal places a little weight on those facts in favour of cancelling the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship):

24. As set out in the Delegate’s Decision the applicant has been living in Australia for some time so he has likely formed some strong emotional ties and friendships in Australia. If the visa is cancelled, the applicant will become an unlawful non-citizen and would cease to have permission to work and study in Australia.

25. The Tribunal accepts that the applicant will suffer some emotional, psychological and financial hardship if his visa was cancelled. The Tribunal places a lot of weight on those facts against cancelling the visa.

    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:

26. The ground for cancellation arose after the Department conducted a sponsor monitoring visit on the work site where the applicant was employed to work as an electrical engineer. The applicant does not accept that he was not performing work as an electrical engineer. He said that he was stressed when he was being interviewed on site by the Australian Border Force. The evidence provided by the applicant and his employer suggests that there was a blurring of the duties performed by the applicant. There is evidence to suggest that he was performing other tasks but then equally he was engaged in work as an electrical engineer. The fact is that the situation arose because of the difficulties faced by his employer during the covid pandemic.

27. The Tribunal did find that he had breached the conditions of his visa.

28. The Tribunal places some weight on those facts in favour of cancelling the visa.

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

29. There is no evidence that the applicant has not cooperated with the Department and the Tribunal places some weight on those facts in favour of the applicant’s case.

    whether there would be consequential cancellations under s 140:

30. The Tribunal is unable to place any weight for or against the decision to cancel the visa as there is no evidence that would be any consequential cancellations under s.140.

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

31. The applicant presently has a pending Student Visa application which is awaiting review by the Tribunal. He holds a Bridging Visa A and that visa may cease if his Visa is cancelled.

1. He would become an unlawful non- citizen in Australia and may be liable for detention if he does not apply for another bridging visa or depart Australia voluntarily.

2. The delegate of the Department did note in his decision that the applicant may be able to apply for a Bridging E Visa subclass 050 to maintain lawful immigration status while he waits for an outcome of his pending student visa application.

3. The delegate also noted that there may be a bar under section 48 of the Act which would be imposed if his Temporary Skill Shortage Visa is cancelled which would limit the applicant’s options to apply for further visas from within Australia.

4. He would also be affected by public interest criterion 4013 where he may be prevented from being granted certain types of visas for a period of three years from the date of Visa cancellation.

5. The Tribunal gives this consideration significant weight against cancelling the visa.

   whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

6. There is no information before the Tribunal to suggest that the Visa cancellation will lead to a breach of Australia’s international obligations so therefore the Tribunal is unable to give any weight for or against a decision to cancel the Visa for this consideration.

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

7. There is no evidence that the applicant has any strong family, business or other ties in Australia and the Tribunal does not make a finding in respect of those factors.

   any other relevant matters:

8. The applicant will continue to be employed by the nominated sponsor. The nominated sponsor’s nomination was cancelled by the Delegate of the Department on the 10 December 2021. The business of Walter Design and Development Pty Ltd applied for a Review. There is a pending application which has yet to be heard by the Tribunal. The Tribunal places some weight on those facts in favour of not cancelling the Visa.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

   decision

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Noelle Hossen
    Member