Xiao (Migration)

[2019] AATA 1640

Xiao (Migration) [2019] AATA 1640 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Li Xiao
Miss Jiayi Chen

CASE NUMBER:  1803491

HOME AFFAIRS REFERENCE(S):           BCC2017/3252160

MEMBER:Michael Ison

DATE:24 May 2019

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 second named applicant.

Statement made on 24 May 2019 at 1:25pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – genuine position – Customer Service Manager – genuine business – sponsor's business has no physical office space – not entitled to appear before the Tribunal – consideration of discretion – purpose of visa grant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 119, 140, 189, 198, 348, 359A, 359B, 359C, 360, 363A, 375A
Migration Regulations 1994 (Cth), rr 2.43, 4.17

CASES
Hasran v MIAC [2010] FCAFC 40
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 February 2018 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)(g) of the Act on the basis that a prescribed ground for cancellation had been made out. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant provided a copy of the delegate’s decision to the Tribunal.

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 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 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 applicant was represented in relation to the review by a registered migration agent.

5. On 7 May 2019 the Tribunal sent the applicant a letter informing the applicant the Department’s file contained two certificates issued in accordance with s.375A of the Act and also disclosed potentially adverse information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review in accordance with the procedure set out in s.359A of the Act. The Tribunal provided a copy of the s.375A certificates to the applicant.

6. In relation to the s.375A certificates the Tribunal particularised the information the certificates applied to, which included an operational enforcement plan of the Department, and found the certificates to have been validly issued. The Tribunal invited the applicant to make submissions about the validity and content of the certificates.

7. The potentially adverse information was information in the Departmental operational plan to which the s.375A certificates applied and a series of media news articles from 2017 and 2018 retrieved from the internet reporting on the activities of people associated with the sponsor of the primary applicant being Alphabred Pty Ltd as trustee for Alphabred I.T. Services (Alphabred), including Mr Phillip Whiteman, Mr Craig Nixon, Mr Evan Bishop and others, where amongst other illegal activities, it is alleged that Mr Whiteman and his associates created or used shelf companies to create businesses that were not genuine and then those companies offered positions that were not genuine for the purpose of helping applicants gain Subclass 457 visas they were not entitled to in return for payments to Mr Whiteman or his associates. The Tribunal’s letter particularised this information in detail in eight dot points and explained the relevance of the information to the applicant’s application and the consequences for the applicant if the Tribunal relied on the information, including that it would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate under review.

8. The Tribunal’s letter specified, in accordance with s.359B(2) of the Act and r.4.17, that the applicant had 14 days to provide comment or respond to the information or to seek an extension of time to respond to the information, with effect that the responses to the s.375A certificates and the potentially adverse information were due by 21 May 2019.

9. The applicant did not respond to the Tribunal’s letter dated 7 May 2019 within the prescribed period and no extension to the prescribed period to respond was sought. In these circumstances, s.359C(2) of the Act applies which provides the Tribunal may then make a decision on the review without taking any further action to obtain the applicants views on the information. Section 360(1) provides the Tribunal must invite an applicant to appear before it to give evidence and present arguments unless, amongst other matters, s.359C(2) applies: s.360(2). In that instance, as here, s.360(3) of the Act provides that if s.360(2) applies then the applicant is not entitled to appear before the Tribunal. Section 363A of the Act separately provides that if the relevant part of the Act states that a person is not entitled to do something then unless another provision of the Act expressly provides otherwise the Tribunal does not have the power to permit the person to do that thing. These provisions have been held to have the effect that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal is satisfied that the applicant has been aware of the determinative issues in relation to the review since the delegate’s decision on 9 February 2018. The applicant has been represented by a registered migration agent in relation to the Tribunal’s review process. The Tribunal’s letter dated 7 May 2019 was sent by electronic mail to the applicant’s registered migration agent and the Tribunal did not receive any error message in relation to that transmission. In those circumstances the Tribunal is satisfied it has complied with its procedural obligations and has decided to proceed to make a decision on the information before it.

11. 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

12. 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)(g) that a prescribed ground for cancelling a visa applies to the visa holder. 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)(g) - prescribed ground

13. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(kb)(iii) is relevant.

14. Regulation 2.43(1)(kb)(iii) at the relevant time provided:

    2.43(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    (kb)  in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223(4) (as in force before 18 March 2018) — that, despite the grant of the visa, the Minister is satisfied that: …

    (iii)  the position associated with the nominated occupation is not genuine; …

15. On 26 May 2016, the applicant applied for a Subclass 457 visa, with Alphabred as her sponsoring employer in the nominated position of Customer Service Manager (ANZSCO code 149212). The location of work was stated to be Alphabred’s head office located at Level 8, 350 Collins Street, Melbourne.

16. The applicant was granted the Subclass 457 visa on 2 December 2016.

17. On 22 November 2017 a delegate of the Minister issued a Notice of Intention to Consider Cancellation of a visa (NOICC) under s.116 of the Act to the applicant.[1] The NOICC complied with the requirements of s.119 of the Act.

    [1] Department file, folios 16 and 17.

18. The applicant responded in detail to the NOICC on 5 December 2017, stating in part:

    Between the time my visa application was lodged and the visa grant (six months) the business move to a different location, which is level V, 11 Queens Road, Melbourne. This are also serviced offices. We have a physical location there still.

    The nature of the business is such that nearly all employees work at premises of our client; this is very acceptable model for IT businesses. We have no need for large expensive offices, as they will be little used, if at all. A serviced office facility works well as we have access to large meeting rooms when our staff discuss client cases or have meetings with new clients. We have one fixed office at this location, which is used for administrative and Customer Service, the role I fulfil.

    Our clients contact our staff on their mobile phones this is the most effective way as they are in various locations throughout Melbourne.

    When the officers are not occupied a message is left with reception for a callback.

    However the company has declined in its success over the last six months or so and wallet had over 20 Staff when I submitted by application to the Department it has now only a few left. I am pleased that I am still employed and my wages are paid correctly and in a timely manner. I have attached my latest bank statement as evidence of the wage payments net of income tax of $4,416 are paid monthly. I also have included my first tax return for the financial year 2016/17.

    As a result of this decline the office is still kept but I’m not working from that location any longer. Currently I’m working from home.

    As I am still fully employed, get paid properly and am a benefit to the company I don’t believe that grounds for the cancellation of my visa exists and therefore hope that my Visa will not be cancelled. (sic) [2]

    [2] Department file, folios 20 to 26.

19. On 9 February 2018 the delegate cancelled the applicant’s visa. The delegate’s decision states:

    Information before the Department shows that the address at Level 8, 350 Collins Street, Melbourne is a virtual/serviced office that is managed by Collins Street Business Centre (CSBC) who occupy the entire floor and have done so for the previous 15 years.

    CSBC has confirmed that Alphabred IT Services had been a client from 24 September 2015 to 8 March 2016 and had an ‘address only’ package with no access to physical office space.

    On 05 July 2017 a telephone call was made to the number for Alphabred IT Services that is listed on the visa holder’s visa application form. This number was answered by a message service, not a receptionist. This call was not able to be transferred to any Alphabred IT Services employee.

    The ANZSCO description of a Customer Service Manager (ANZSCO 149212) is someone who ‘Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.’

    The Detailed Job Description that was provided to the Department by Alphabred IT Services for the Customer Service Manager states, in part:

    Essential skills:

    ·Team work ability.

    Main duties:

    ·Assisting with the recruitment of customer service assistant/s

    ·Managing, motivating and developing recruited customer service assistant/s

    ·Liaising with and training staff at all levels of the company on general customer service standards and requirements.

    I find it implausible that the visa holder is able to complete the tasks required by a Customer Service Manager without access to physical office space. I find it illogical that the visa holder’s sponsoring business Alphabred IT Services would claim to be sponsoring her for the position and tasks listed above when they do not have a physical office space. A reputable, ongoing business with multiple employees would be expected to have its own office space. I find it improbable that the visa holder’s sponsoring business, Alphabred IT Services is an ongoing business as the only telephone number listed for the business is answered by a message service with no way of speaking to any listed employee.

    As such, it appears that the visa holder’s nominated Customer Service Manager position with Alphabred IT Services is not genuine. Therefore, your visa is liable for cancellation under s116(1)(g) of the Migration Act.[3]

    [3] Tribunal file, folios 15 to 18 at folios 17 and 18 (back).

20. The Tribunal is concerned by the applicant’s December 2017 submission to the Department that her sponsor only has a few employees left and she has been working from home. This indicates to the Tribunal that the applicant’s sponsor does not genuinely need a Customer Service Manager as that role is specified in ANZSCO 149212. The Tribunal finds the applicant’s explanation for working from home in her role, her sponsor not having its own offices and potential customers only being able to contact her sponsor via a message bank as part of normal business practices for an I.T. business like Alphabred to be improbable. These circumstances indicate to the Tribunal that Alphabred is not a genuine business and the applicant’s position of Customer Service Manager for Alphabred is not genuine.

21. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) and r.2.43(1)(kb)(iii) 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’.

    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 has travelled to and stayed in Australia to commence employment with Alphabred. In her response to the NOICC, the primary applicant stated:

    Since I came to Australia I have settled my daughter and myself at least a unit at [address]. …

    My daughter, who is a young girl is enrolled at [School 1], [address], and have just completed her year 7. It is only just now that she is finding her feet and starting to get settled in the Australian school routine and making new friends. It would be very sad if she cannot continue this education here at this school. I have attached a copy of the fees paid and the new enrollment fees for year 8. (sic) [4]

    [4] Department file, folios 20 to 26.

24. The Subclass 457 visa is a temporary visa which was intended to assist businesses to employ workers from outside Australia when those employers were unable to find Australian workers with the necessary skills and experience for the position the employer wished to fill. It is a temporary visa intended to support businesses in addressing genuine skill gaps.

25. The applicant’s Subclass 457 visa was valid, prior to cancellation, to 2 December 2020. This reflects the intended temporary nature of these visas. It is not a purpose of the Subclass 457 visa that it provides an ongoing basis for dependants of the applicant to undertake and continue their secondary school education in Australia rather than their home country.

26. On the information before the Tribunal the applicant does not have a compelling need to remain in Australia and the Tribunal therefore finds this consideration supports the cancellation of the applicant’s visa. The Tribunal gives this consideration some weight.

    The extent of compliance with visa conditions

27. There is no information before the Tribunal that indicates that the applicant has not complied with her visa conditions. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

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

28. In the 9 February 2018 decision letter the delegate noted:

    I acknowledge that the visa holder’s daughter is attending secondary level schooling in Australia and has done so for a year. I note that it would be the visa holder and her daughter’s preference for her to continue her education in Australia and that visa cancellation would cause a degree of hardship for the visa holder’s daughter. As such I give little weight in the visa holder’s favour for this consideration.

29. The Tribunal notes that the ongoing cancellation of the applicant’s visa will, in the normal course of events, mean that the applicant has to depart Australia significantly earlier than the applicant would have if her visa was not cancelled.

30. In those circumstances the Tribunal finds that the ongoing cancellation of the applicant’s visa will cause the applicant some emotional and psychological hardship and may cause the applicant some financial hardship. The weight the Tribunal can give this consideration, in the absence of specific information from the applicant about her circumstances in Australia and her circumstances back home in China, is limited.

31. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    The circumstances in which ground of cancellation arose.

32. The Tribunal has found that Alphabred does not have a genuine need for a Customer Service Manager and that position is not a genuine position for the reasons set out above. The applicant provided bank statements to the Department allegedly showing the payment of her wages by Alphabred and also provided a copy of her individual tax return for 2016/17.

33. The Tribunal gives this evidence little weight as five of the six bank statement entries supposedly showing the payment of wages from Alphabred to the applicant are described differently in the particulars of the statement which is not consistent with a genuine business that the Tribunal reasonably expects would have a standardised format for recording wage payments for all of its employees. Similarly, the tax return for 2016/17 does not identify how the income recorded was earned or who paid the taxpayer that income.

34. The Tribunal notes that the potentially adverse information provided to the applicant by the Tribunal on 7 May 2019 included assertions in the media reports attached to the Tribunal’s letter that Mr Whiteman and his associates established or used many companies that were not genuine businesses for the purposes of creating positions that were not genuine so they could obtain a Subclass 457 visas for people who are not otherwise entitled to that visa in return for payments to Mr Whiteman and his associates. As part of this enterprise the media reports note that visa holders would pay money to Mr Whiteman or his associates that was then transferred to other companies within the enterprise and then returned in part or whole to the Subclass 457 visa holder to make it look like the visa holder was being paid a salary.

1. There is no specific information before the Tribunal to indicate that the applicant’s wages were paid to her using such a system. Therefore, the Tribunal makes no adverse findings against the applicant in this regard.

2. The Tribunal finds that this consideration supports the ongoing cancellation of the applicant’s visa and the Tribunal gives this consideration considerable weight.

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

3. There is no adverse information before the Tribunal regarding the applicant’s past and present behaviour towards the Department. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

   Whether there would be consequential cancellations under s.140

4. In the 9 February 2018 decision letter the delegate noted:

   The visa holder’s partner, Song CHEN (12/11/1977) and her daughter Jiayi CHEN (12/11/2004) are dependents on the UC–457 visa. If the visa holder’s visa is cancelled then their visas will be consequentially cancelled under s140. As such, I give some weight in the visa holder’s favour for this consideration.[5]

   [5] Department file, folios 20 to 26.

5. At the time of this decision the information before the Tribunal is that Mr Chen departed Australia on 12 October 2017 and has not returned. Mr Chen was not listed as a secondary applicant on the applicant’s application for review to the Tribunal. As a result, Mr Chen is not listed as an applicant in this review.

6. The Tribunal finds that if the applicant’s visa remains cancelled, that cancellation will cause the consequential cancellation under s.140 of the Act of the dependent visa held by the applicant’s daughter. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

   Whether there are mandatory legal consequences of cancellation

7. The Tribunal finds that the ongoing cancellation of the applicant’s visa will cause the applicant to become an unlawful noncitizen who would then be liable to being detained under s.189 of the Act, being removed from Australia under s.198 of the Act and then being subject to s.48 of the Act with the effect that she will have limited options to apply for further visas in Australia. In addition, cancellation in these circumstances means that Public Interest Criterion 4013 will apply to the applicant with the effect that she may be prohibited from making certain visa applications for a three-year period after cancellation. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

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

8. There is no information before the Tribunal to indicate that cancelling the applicant’s visa would cause Australia to be in breach of any of its international obligations. The Tribunal finds that this consideration is neutral and does not weigh in support of or against the cancellation of the applicant’s visa.

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

9. The applicant’s visa is a temporary visa. The Tribunal finds that this consideration is neutral and does not weigh in support of or against the cancellation of the applicant’s visa.

   Any other relevant matters

10. The applicant has not brought any other matters to the attention of the Tribunal.

    Conclusion

11. The Tribunal has carefully considered and weighed the circumstances of the applicant as a whole and concludes that the visa should be cancelled. The Tribunal gives greatest weight to the purpose of the applicant’s travel to and stay in Australia and to the circumstances in which the ground for cancellation arose, finding that these considerations outweighed the considerations that weighed against the cancellation of the applicant’s visas.

    DECISION

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

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

    Michael Ison
    Senior Member