Xing (Migration)

[2020] AATA 2895

Xing (Migration) [2020] AATA 2895 (22 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yuan Xing
Mr Jie Zhang

CASE NUMBER:  1931336

HOME AFFAIRS REFERENCE(S):          BCC2018/4032723

MEMBER:Antonio Dronjic

DATE:22 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

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

Statement made on 22 May 2020 at 5:34pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ceased employment with sponsor 4 months before visa grant – complication with pregnancy – family member’s ill health – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 137Q, 137T, 359AA, 362A, 375A,

Migration Regulations 1994, r 2.50AA; Schedule 4, PIC 4013

CASES

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197

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 made by a delegate of the Minister for Home Affairs on 1 November 2019 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that s/he was not satisfied that the applicant commenced the nominated employment within the required period (s.137Q(1)). 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 that with respect to the first named applicant (the applicant). The other visas were automatically cancelled because of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicant applied for review of the primary decision to this Tribunal on 4 November 2019 and with her application submitted a copy of the primary decision record according to which:

   On 12 December 2016 the visa holder was granted a Regional Sponsored Migration Scheme (RSMS) visa to work for her sponsoring employer RMH Sebastopol Pty Ltd trading as Royal Mail Hotel Ballarat.

   The Department has undertaken integrity checks with RMH Sebastopol Pty Ltd on 30 August 2017 who confirmed that the visa holder ceased employment with them four months prior to the grant of the visa.

   This indicated that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations. The delegate was not satisfied that the applicant made a genuine effort to commence that employment within the period prescribed by r.2.50AA (6 months from the day of the visa grant).

   The visa holder departed Australia on 15 December 2016 and returned on 28 January 2017. She declared in her incoming passenger card that she had travelled overseas for a holiday. She also declared that her intended address in Australia [was] Whitehorse Road, Balwyn Victoria. It appears the visa holder declared this address in her incoming passenger cards on six occasions.

   The visa holder made an application for Australia citizenship on 7 December 2017 and declared her address as [Address 1]. It is noted that her [child] was born in Melbourne on [date]. In support of an application for the registration of citizenship of her child, the visa holder’s husband Jie Zhang submitted a birth certificate of the child from the Victorian Registry of Births, Deaths and Marriage in which she and her husband declared their address on 17 June 2017 as [Address 1].

   An initial Notice of proposed cancellation under s.137Q of the Act (the Notice) was sent to the visa holder on 22 July 2019 but was not delivered. A further Notice was sent to the visa holder on 7 August 2019. A response to the Notice was received on 12 September 2019.

   A list of documents provided in response to the Notice was contained in the primary decision record at pages 2 & 3.  The applicant stated that, for the following reasons, she was unable to commence employment at Mail Hotel Ballarat:

   ·four months prior to the grant of the visa she fell pregnant and was diagnosed with ‘small for dates’ baby. She was warned by her doctor that she was at risk of miscarriage and decided to cease employment and to re-commence after the first trimester of pregnancy;

   ·Her husband’s father in China was diagnosed with a serious illness and the couple travelled to China together on 15 December 2016. Upon her return she resided at [Address 1] with her husband as he was worried about her condition. Her husband had completed all her passenger cards when they travelled to Australia, and she signed them;

   ·She gave birth to her daughter on [date] however following this she started having regular migraine attacks and was unable to commence employment. Her husband made frequent trips to visit his ill father in China whilst he was undergoing treatment while she was alone to raise a newborn baby and as such she could not commence work;

   ·sponsoring employer fell into liquidation on 13 July 2018 and even if she had commenced employment within six months of the grant she would not have been paid wages or superannuation. In March 2018 she attempted to contact her sponsoring employer regarding her position however was unable to make contact with her and was advised by a staff member that the company wound up in April 2018; and

   ·She stated that her visa should not be cancelled because it would cause her and her family extreme hardship as they would be faced with returning to China after both establishing a life in Australia since 2008, and given the fact that their child is an Australian citizen she would not be eligible for Chinese citizenship. The visa holder has stated that Jie Zhang is the sole bread- winner of the family and has been self-employed for a number of years investing in several businesses, and since they have decided to make their life in Australia have purchased a home.

5. The delegate considered relevant circumstances raised by the applicant that might support not cancelling the visa and concluded that the grounds for cancelling the visa outweigh the reasons for not cancelling the visa.

6. On 22 January 2020, the Tribunal wrote to the applicant advising her that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 17 March 2020. This hearing was subsequently cancelled, and a new hearing scheduled for 21 April 2020.

7. On 10 and 16 March 2020, and on 14 April 2020, the applicant’s representative submitted legal submissions and documentary evidence in support of the review application (please see the document list attached to this decision and marked as attachment ‘A’.

8. The applicant appeared before the Tribunal on 21 April 2020 via telephone conferencing to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jie Zhang, the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

9. At the commencement of the hearing the applicant’s representative confirmed that the applicant was provided with a copy of a s.375A non-disclosure certificate issued by the Department on 25 November 2019 with other documents obtained from the Tribunal following the applicant’s request made under s.362A of the Act.

10. The Tribunal advised that it considers the s.375A certificate to be valid and informed the applicant of her right to challenge the validity of certificate. To the extent that the applicant may not already have the information following the s.362A release of documents by the Tribunal, the Tribunal told the applicant it would put any relevant adverse information to her later in the hearing under s.359AA and would allow her further time to respond.

    Immigration and history of the applicant’s study in Australia

11. The applicant’s immigration and visa history were conveniently summarised in the primary decision record as follows:

    The visa holder arrived in Australia as the holder of a Student visa on 15 July 2008. The Provider Registration and International Student Management System (PRISMS) indicates the visa holder completed an English course on 12 December 2008.

    She subsequently enrolled in a Bachelor of Commerce at Deakin University however her enrolment in this course was cancelled as she transferred to Federation University to undertake a Bachelor of Management on 15 March 2011. She further transferred to a Bachelor of Commerce (Accounting) at Federation University of Australia on 23 March 2011. She ceased studying this course on 30 July 2012 and her enrolment was cancelled on 28 September 2012.

    The visa holder enrolled in a Certificate III in Information Technology at Australian Learning, Training and Education centre on 2 August 2012 however the enrolment was also cancelled on 28 September 2012. She subsequently enrolled in and completed a Certificate III in ESL (English as a Second Language) between 2 August 2012 and 13 October 2012.

    In support of her RSMS application the visa holder provided a copy of her completed Advanced Diploma of Business at Infinity Institute of Melbourne dated 13 May 2013 whilst she was a dependent applicant on her husband’s Student visa.

    The visa holder was granted a Temporary Work (Skilled) visa on 29 May 2014 for the nominated occupation of Restaurant Manager at Royal Mail Hotel (Ballarat) Pty Ltd.

    The business entity changed ownership to RMH Sebastopol Pty Ltd in March 2016 and the visa holder’s visa was transferred to the new sponsor. Subsequently she was sponsored to work for this entity for her RSMS visa which was granted on 12 December 2016.

12. The applicant confirmed that her immigration and study history in Australia were accurately summarised in the primary decision record. She conceded that, as the holder of a Student visa between 2008 and 2012, she was enrolled in three separate degree courses and did not complete any of them.

13. She further confirmed that she provided two written statements, the first one to the Department dated 11 September 2019 and the second one to the Tribunal dated 10 March 2020. The applicant stated that everything written in those statements is true and correct and that she does not wish to change or add anything to those statements.

14. The applicant is a citizen of China. She is married and has a child born in Australia on [date], who is an Australian citizen. Both her and her husband’s parents live in China. Neither of them has blood relatives in Australia. She communicates with her child in both Chinese and English.

15. Neither the applicant nor her husband is currently employed. Together with her husband she intends to open a flower shop in Geelong, where the family moved in late January 2020.

16. In early 2018, the applicant and her husband purchased a property in Ashburton, Victoria for $2.3 million. The applicant was not sure how much they paid as a deposit for this property and stated that they still have a mortgage of approximately $2 million. They intend to sell this property, which is currently not rented. The applicant stated that some money for the purchase of the Ashburton property came from overseas but was not sure how much.

17. The applicant’s husband operates a property development business (Blackhorse Enterprises Pty Ltd). In 2018, he purchased a property located in Surrey Hills, Victoria for approximately $1,6 million and intends to build units on this land. He is currently awaiting the approval of a planning permit. The applicant is unsure how much money they borrowed from a bank for this property and stated that money paid as a deposit for this property did not come from overseas.

18. In her evidence, the applicant confirmed that she was granted a Subclass 457 visa on 29 May 2014, which remained valid until 12 December 2016. She commenced employment at the Royal Mail Hotel Ballarat on 16 June 2014 and remained employed there until August 2016. Her occupation was restaurant manager. She worked five days per week, usually Wednesday to Sunday. Her annual salary was $54,500 excluding superannuation. Her salary was paid by cheque on a fortnightly basis. Those cheques were deposited in the applicant’s Commonwealth Bank account. The Tribunal requested that the applicant provide copies of Commonwealth Bank account statements from June 2014 to August 2016. She claims that whenever she was not working, she would travel back to Melbourne to be with her husband.

19. The Tribunal noted that in the visa application form, the applicant wrote that she ceased her employment at the Royal Mail Hotel Ballarat on 16 October 2015. The Tribunal noted that this was inconsistent with her oral evidence where she stated that she ceased employment in August 2016. The applicant stated that she cannot remember why she wrote 16 October 2015 in the visa application form.

20. The Tribunal enquired if she informed the Department of her cessation of employment at the Royal Mail Hotel Ballarat. The applicant stated that she did not as at the time she believed that she would be able to resume her employment. She reiterated that, at that time, she had a lot of problems in her life. She stated that she asked her employer for two to three months of unpaid leave because she had problems with her pregnancy. The Tribunal enquired if she asked for or received a letter from her employer confirming that she was granted unpaid leave. She stated that she neither asked for nor received such a letter from her employer. She claims that the unpaid leave was granted to her during the telephone conversation she had with a restaurant manager called Tanya. When the Tribunal enquired if she informed the Department that she was granted two to three months unpaid leave (during the first trimester of her pregnancy), the applicant stated that she did not.

21. The Tribunal enquired as to whether she returned to work in November 2016, when her unpaid leave and the first trimester of her pregnancy finished. The applicant changed her evidence and stated that she asked for unpaid leave in October 2016. She added that she stopped working at the Royal Mail Hotel Ballarat in August 2016 because of the financial problems her employer experienced at that time.

22. The applicant stated that she asked for an extension of unpaid leave in February 2017 and that Tanya, during the telephone conversation, approved that leave for another six months. She conceded that she cannot provide documentary evidence in support of this claim. The Tribunal raised the issue of the applicant’s credibility and explained the consequences if the Tribunal finds her not to be a credible witness.

23. From June 2014, she resided in Ballarat at the accommodation provided by her employer. This address was recorded in the visa application form. She gave evidence that payment of her accommodation by her employer was part of her salary package. The Tribunal requested that the applicant provide a copy of the employment agreement with the Royal Mail Hotel Ballarat. The applicant stated that she cannot find the employment agreement.

24. The applicant gave evidence that after she fell pregnant in August 2016, she decided to move from Ballarat to Melbourne (the Ballwin address) to be with her husband. This was to be a temporary solution. She stated that, as of August 2016, the accommodation previously provided by her employer, was no longer available. When the Tribunal enquired if she informed the Department of her change of residential address, the applicant stated that she did not and that she cannot remember why she failed to do so.

25. Together with her husband, the applicant remained living at the Ballwin address until February 2017, when they moved to the [Address 1] address. When the Tribunal enquired if she informed the Department of her change of residential address, the applicant stated that she did not and that she cannot remember why she failed to do so.

26. The Tribunal enquired as to what efforts the applicant made to commence employment at the Royal Mail Hotel Ballarat between December 2016 and June 2017. The applicant stated that she did not make any attempts to re-commence employment during this period.

27. It was not until March 2018 that she attempted to contact her employer. The applicant gave evidence that on this occasion, she left a message on Tanya’s mobile phone, but she did not call her back.

28. The Tribunal noted that, according to a newspaper article related to the closure of the  Royal Mail Hotel Ballarat provided by the applicant, the hotel staff were given a month’s paid leave before closure. The Tribunal enquired as to whether the applicant received this payment and she stated that she did not. The applicant stated that she was paid her wages and superannuation entitlements and that she did not make any claims when the liquidator was appointed in July 2018.

29. The applicant conceded in her evidence that she provided an incorrect residential address on her incoming passenger cards on arrival to Australia from China (on 21 June 2015, 19 December 2015, 1 March 2016 and 28 January 2017). She stated that her husband would complete the incoming passenger cards and she would just sign them without paying any attention as to what address was declared. The Tribunal explained that providing an incorrect address on incoming passenger cards is a separate ground for visa cancellation.

30. The applicant conceded in her evidence that a [Address 1] address was stated in both her application for Australian citizenship and her daughter’s [birth certificate].

    The Tribunal’s oral invitation to comment on or respond to information:  

31. In accordance with s.359AA of the Act, the Tribunal informed the applicant that there was information before the Tribunal obtained from the Department that would be the reason or part of a reason for affirming the decision that is under review. The information was:

    The Department file contains a 375A certificate that prevents the Tribunal disclosing information covered by the certificate to the applicant. You have been provided a copy of this certificate with documents obtained under s.362A of the Act. The Tribunal has taken the view that this is valid certificate. The certificate covers the department’s folios 35-57.

    The documents covered by the certificate are obtained from the ATO and contain information about the applicant’s activity statement details, basic summary information, employer and salary and wages details and income tax return details.

    According to information obtain from ATO, your residential and postal address history is as follows:

    From 12 October 2015 to 9 February 2017 - Whitehorse Road Balwyn; and

    From 10 February 2017 to 9 May 2019 - First Avenue Kew;

    According to information obtain from ATO no tax return was lodged in the financial year 2016/2017 and tax return was lodged for 2017/2018.

    On 30 August 2017, the Departmental officers conducted verification of your employment. During the telephone conversation with a person who was working as a barman at Ballarat Royal Mail Hotel, the Department was informed that you were employed at Ballarat Royal Mail Hotel as a bistro manager and that you ceased employment 12 month prior to August 2017.

1. The Tribunal explained the relevance of the information and consequences of the Tribunal relying on this information. The applicant confirmed that she understood the information, its relevance to the Tribunal’s decision and consequences of the Tribunal relying on the information.  The Tribunal then invited the applicant to comment on or respond to the information and informed her that she could request additional time to do so. Upon the applicant’s request, the hearing was adjourned for 20 minutes.

2. The hearing resumed and the applicant stated that from June 2014 to August 2016 she lived in Ballarat. The address the Australian Taxation Office has on its records is her husband’s address. In March 2017, she and her husband moved to [Address 1] and their accountant did not update their new residential address.

3. The applicant confirmed that she did not lodge a tax return for the financial year ending on 30 June 2017 as she was not earning wages in that financial year. She stated that in October 2015, her employer changed its ABN number. In mid-2016, she asked for a copy of her group certificate, but her employer refused to do so. In early 2017, she asked Tanya for a copy of her group certificate, but she never received it. She stated that her former employer deducted income tax from her wages.

4. Finally, the applicant stated that she does not believe that a barman working at Royal Mail Hotel Ballarat knew that she was on unpaid maternity leave.

5. The Tribunal noted submissions provided addressing the discretionary considerations as to whether her visa should be cancelled. The Tribunal asked the applicant if there is anything else she would like to bring to the Tribunal’s attention.

6. Th applicant reiterated that she worked at the Royal Mail Hotel Ballarat since June 2014, that many things were out of her control, including her pregnancy and father-in-law’s illness. She stated that she and her family are settled in Australia, that from January 2020 the family moved to Geelong (regional Australia) where they intend to open a flower shop and employ one or two Australian citizens or permanent residents and that her daughter will commence primary school next year.

   Oral evidence of Mr Jie Zhang, the applicant’s husband

7. In his evidence, Mr Zhang confirmed that he provided two written statements, the first one to the Department dated 11 September 2019 and the second one to the Tribunal dated 10 March 2020. The applicant stated that everything written in those statements is true and correct and that she does not wish to change or add anything to those statements.

8. He gave evidence that his wife lived in Ballarat in hotel accommodation provided by her employer from June 2014 to August 2016. He lived in a one-bedroom apartment at the Ballwin address and visited his wife on two or three occasions during this period. She would come to Ballwin when she was not working at the hotel, usually on Mondays and Tuesdays. He gave evidence that as of August 2016, his wife did not go back to Ballarat or work at the Royal Mail Hotel Ballarat.

9. The applicant and her husband operated two accounts with Westpac bank and a joint bank account with the Commonwealth Bank. The joint bank account was closed some three years ago. He confirmed that the applicant’s wags were deposited into their joint bank account.

10. The witness stated that his building development business, Blackhorse Enterprises Pty Ltd, was registered in June 2018. This business never employed any Australian citizens or permanent residents. The business turnover in the two past financial years was zero. The business is currently not generating any income.

11. Mr Zhang stated that he and his family currently live off their savings. He gave evidence that they have approximately $200,000 in savings in their Westpac bank account. He stated that his parents sold an apartment in China for approximately $800,000.

12. Mr Zhang gave evidence that the Ashburton property was purchased in 2018 for $2.3 million. The deposit paid at the time of purchase was approximately $500,000. This money was sent to him from China by his parents. He and his wife intend to sell this property in the near future.

13. He further stated that the Surrey Hills property was purchased in 2018 for $1.5 million. The deposit paid at the time of purchase was approximately $400,000 and most of that money came from the sale of an apartment in China.

14. The Tribunal noted that the applicant claims to have savings of $200,000. In his evidence the witness stated that the total deposit paid for two Australian properties was approximately $900, 000. The Tribunal noted that an apartment in China was sold for $800,000. The Tribunal enquired as to where the difference of $300,000 came from.

15. The Tribunal requested evidence of money transfers from China and corresponding statements from the applicant’s and witnesses’ bank accounts. The Tribunal granted the applicant until 5 May 2020 to provide requested documents, submissions and any other documents she wished to submit in support of her application.

16. On 5 May 2020, the applicant’s representative submitted submissions and documentary evidence in support of the review application (please see the document list attached to this decision and marked as attachment ‘B’.

17. On 12 May 2020, the applicant’s representative submitted submissions and documentary evidence in support of the review application (please see the document list attached to this decision and marked as attachment ‘C’).

18. 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

19. Under s.137Q of the Act the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. A ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

    Does the ground for cancellation exist (employment not commenced)

20. Under s.137Q(1) the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in r.2.50AA. In the case of a Subclass 187 visa, that period is six months from the date of grant of the visa.

    Whether the applicant commenced employment within the prescribed period (from 12 December 2016 to 12 June 2017)

21. As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicants’ subclass 187 visas were granted on 12 December 2016 on the basis of the applicant’s nomination for the position of full-time Café or Restaurant Manager at RMH Sebastopol Pty Ltd trading as the Royal Mail Hotel Ballarat, Victoria.

22. The Department undertook integrity checks with RMH Sebastopol Pty Ltd on 30 August 2017 and it was confirmed that the visa holder ceased employment with them four months prior to the grant of the visa.

23. In her written statements and oral evidence, the applicant conceded that she did not commence employment at the Royal Mail Hotel Ballarat within the period of six months from the date of visa grant (12 December 2016).

24. In her undated statement submitted to the Tribunal on 10 March 2020, the applicant wrote that in August 2016, her employer Tanya told her that she will ‘suspend’ her work for several weeks, because of some changes in the shares of the company, and that the applicant could not be paid during that time. She further wrote that in October 2016, she contacted her employer, Tanya by phone, told her about her physical health and the situation of her family and informed Tanya that she would not be able to go to work for a while.  

25. The applicant gave evidence that she did not return to work in November 2016, when her unpaid leave and the first trimester of pregnancy finished. She stated that in February 2017, she asked her employer for an extension of unpaid leave for another six months. The applicant claims that her manager Tanya, during the telephone conversation, approved that leave. The applicant conceded in her evidence that she did not formally apply for unpaid leave and is not able to provide documentary evidence in support of this claim.

26. The Tribunal finds that in her statements the applicant did not claim that she took unpaid leave from August 2016 to November 2016 and again from February 2017 to July 2017. The Tribunal finds that in her written statement submitted to the Tribunal on 10 March 2020, the applicant stated that she ceased working at the Royal Mail Hotel, Ballarat in August 2016 because of the financial problems her employer experienced at that time. In this statement the applicant informed her employer that she would not be able ‘to go to work for a while’ but did not mention that she requested or was granted a further six months unpaid leave from her employer.

27. The Tribunal observes that whilst it may be guided by policy, it is not bound to follow it.[1] In relation to unpaid leave, the Department’s guidelines provide:

    In cases of unpaid leave it is expected:

    ·     that there would be a formal application for unpaid leave that has been formally approved by the employer (including leave applications that are processed and approved electronically) and

    ·     that the intended period of LWOP should not exceed 12 months or the remaining visa period, whichever is shorter.

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

28. In his submissions of 10 March 2020, the applicant’s representative submitted that, under Australian law, the applicant was entitled to 12 months’ unpaid maternity leave and that the Department was wrong in finding that the applicant ‘terminated her employment’ four months before her Subclass 186 visa was granted. It was submitted that the applicant did not work during the prescribed period (12 December 2016 to 12 June 2017) because she was on unpaid leave. In the same submissions, the representative wrote that it was the employer who asked the applicant to stop working.

29. Based on the evidence before it and for the reasons stated above, the Tribunal is not satisfied that the applicant was granted unpaid maternity leave by her employer.

30. Based on the evidence before it, the Tribunal is satisfied that the applicant did not commence employment referred to in the relevant employer nomination within the period prescribed by the regulations.

    Whether the applicant made a genuine effort to commence that employment (from 12 December 2016 to 12 June 2017)

31. The issue then becomes whether the Tribunal is satisfied that the applicant made a genuine effort to commence that employment within the prescribed period. That period is relevantly prescribed, if the holder of a Subclass 186 visa was in Australia at the time of grant of the visa, in 2.50AA to be within 6 months from the date of the visa grant.

32. In relation to s.137Q, the Department’s guidelines provide as follows:

    In order for the grounds for cancellation at s137Q to be made out, not only must the visa holder have not commenced employment or completed the required two year employment period, the visa holder must also have not satisfied the delegate that they have made a genuine effort to commence employment, or to complete the required two year employment period.

    Note: The onus is on the visa holder, through their representations, to satisfy the delegate that they have made a genuine effort to commence employment or complete the required employment period.

    It is expected that the visa holder will commence employment or complete the required employment period, unless there are compassionate or compelling circumstances that prevented them from doing so. For example, a person cannot be considered to have made a genuine effort where they have ceased employment because a more attractive employment offer from another employer has been made.

    In assessing whether the visa holder has made a genuine effort, the delegate should consider:

    ·the visa holder’s reasons for, and/or circumstances leading to, the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances)

    ·the possibility that the visa holder, in collusion with the employer, did not commence work within the six month period or resigned shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia

    ·in the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment and

    ·any other matter which is relevant to the commencement or termination of the employment.

    A visa holder may be able to satisfy the delegate that they have made a genuine effort if the failure to commence or complete the two year employment period was because of a situation beyond the visa holder’s control. Examples include:

    ·the position was not filled or did not remain viable due to a serious downturn in business activity or

    ·financial loss, bankruptcy or closure of the business.

    A situation intentionally created by the visa holder that results in termination of their employment would not be considered a genuine effort.

33. The Tribunal observes that whilst it may be guided by policy, it is not bound to follow it.[2] In the circumstances of this application the Tribunal has had regard to it in the context of the applicant’s individual circumstances.

    [2]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

34. The applicant claims in her evidence that she was unable to commence her full-time employment within six months from the visa grant. She stated that she fell pregnant in August 2016 and was diagnosed with a condition called ‘small for dates’ baby and as such it was recommended by her doctor that she take rest since she was at risk of miscarriage. She decided to reside in Melbourne with her husband, and to commence work after the first trimester of her pregnancy when her condition settled. According to the evidence before the Tribunal, including the applicant’s oral evidence, she did not commence employment at Royal Mail Hotel Ballarat after the first trimester of her pregnancy (by December 2016).

35. In September 2016, the applicant was informed that her father-in-law, who lives in China, was severely ill and needed bone marrow transplantation. The Tribunal accepts that her father-in-law was ill and needed surgery. This finding is based on the medical evidence provided, the applicant’s statement, and the statements made by her husband.

36. The applicant claims that, after giving birth, insufficiency of sleep aggravated her migraine. The applicant provided medical evidence of her past problems with migraine. The Tribunal accepts that this condition was aggregated after giving birth to her daughter. In her statement dated 11 September 2019 submitted to the Department, the applicant wrote that she saw her GP in relation to her migraine in November 2017 and that she was referred to see a specialist in April 2018. This is well outside the six months’ prescribed period which ended on 12 June 2017. The applicant conceded in her evidence that her mother was in Australia from 12 April 2017 to 9 October 2017 in order to help her during this period.

37. The applicant wrote and later confirmed in her oral evidence that she travelled to China from 15 December 2016 to 28 January 2017. Finally, she stated that the first time she attempted to contact her employer was in March 2018. Ultimately the applicant conceded in her oral evidence that she did not made any attempts to commence employment at Royal Mail Hotel Ballarat from December 2016 to June 2017.

38. On 5 May 2020, the applicant submitted a copy of her and Mr Zhang’s joint bank account statement held at Commonwealth Bank. The statement covers the period from 1 May 2014 to 31 October 2014, from 1 November 2014 to 30 April 2015 and from 1 May 2015 to 31 October 2015. This is the period the applicant claims to have been living and working in Ballarat (save for two days per week when she would join her husband in Melbourne).

39. The Tribunal examined the transactions recorded in this statement and finds that the bank statements provided as evidence of the payment of salary into her bank account indicate that from 1 May 2014 to 31 October 2015, the applicant shopped and engaged in transactions predominately in the Box Hill, Doncaster or Ballwin areas. In fact, only four transactions occurred in Ballarat during this period (cheque deposits to Commonwealth Bank at the Ballarat branch on 31 March 2015, 28 July 2015, 19 August 2015 and 21 August 2015)

40. In her testimony, the applicant stated that her accommodation in Ballarat was provided and paid for by her employer. She claims that this arrangement was part of her salary package. On 5 May 2015, the applicant submitted a copy of her employment agreement with the nominator dated 6 January 2016. According to this agreement, the applicant’s annual salary was set at $54,600 excluding superannuation. There is no provision in this agreement according to which the employer undertook to provide and pay the accommodation cost to the applicant.

41. On 5 May 2020, the applicant submitted a copy of her PAYG payment summary for the years ended on 30 June 2015 and 30 June 2016. According to this evidence, the applicant’s taxable income in 2014/2015 financial year was $36,238 and for the 2015/2016 financial year, $10,207. Based on this evidence, the Tribunal is not satisfied that the applicant was employed on a full-time basis at the Royal Mail Hotel Ballarat or paid wages according to the employment agreement signed on 6 January 2016.

42. The applicant claimed in her evidence that the sponsoring employer fell into liquidation on 13 July 2018 and, even if she had commenced employment within six months from the visa grant, she would not have been paid wages or superannuation. The Tribunal does not accept this claim as the business went into liquidation long after the prescribed period for commencing employment ended in June 2017.

43. The Tribunal has serious concerns as to why the Royal Mail Hotel Ballarat proceeded with the nomination application for a permanent visa knowing that the applicant ceased her employment in August 2016. In this context the Tribunal considers that it is a real possibility that the applicant colluded with the employer in failing to disclose that she did not commence her employment to the Department as part of an arrangement to help her remain in Australia.

44. There is no indication or any persuasive evidence before the Tribunal that the applicant made any genuine effort to commence the employment between 12 December 2016 and 12 June 2017.

45. Having regard to all the evidence and material before it, the Tribunal is satisfied that the applicant did not commence the employment referred to in the relevant employment nomination in the period prescribed and the applicant has not satisfied it that she made a genuine effort to commence that employment within that period: s.137Q(1)(b).

46. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.137Q exists. As the power to cancel under s.137Q is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.

    Should the visa be cancelled?

47. There are no matters specified in the Act or Regulations that must be considered in relation to 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): Act - Visa cancellation instructions - Regional sponsored employment visas’.

    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

1. The purpose of the visa holder’s stay in Australia was to commence and maintain for the specified period the employment referred to in the relevant employer nomination. As found above, the Tribunal is not satisfied that the applicant has done so and it follows that the purpose of her stay in Australia no longer exists.

2. In early 2018, the applicant and her husband purchased a residential property at Ashburton, Victoria. In the same year, the applicant’s husband, through his business, purchased another property in Surrey Hills, Victoria which they intend to re-develop.

3. After the applicant’s visa was cancelled on 1 November 2019, the applicant and her family relocated to Geelong in January 2020. The Tribunal accepts that the applicant and her husband opened a flower shop and employed an Australian citizen to work in this business.  The Tribunal finds that the purpose of granting the applicant a Subclass 186 visa was not to open a business in regional Australia but to work as a restaurant manager at the Royal Mail Hotel Ballarat.

4. In relation to a compelling need to remain in Australia, the applicant and her husband submitted that they opened a flower shop in Geelong and employed an Australian citizen to work at that business. The argument is that if they close the flower shop, an Australian citizen will lose his/her job. There is nothing before it that demonstrates the business could not be sold and its employee transferred to a new operator.

5. The applicant submitted that China does not recognise dual nationality and that under Article 5 of the Chinese Nationality Law, her daughter would not be eligible for Chinese citizenship, family registration (Hukou) and would be prevented from attending school or receiving medical care in China. It was further submitted that if the family return to China, it may be possible that the Chinese government could repatriate her daughter to Australia while it may not be possible for her parents to return here and this would cause significant hardship as it is in the child’s best interests to be with her parents.

6. The Tribunal accepts that pursuant to Article 3 of the Nationality Law of the People’s Republic of China that “The People’s Republic of China does not recognise dual nationality for any Chinese national’.

7. According to the primary decision record submitted to the Tribunal by the applicant, the Department received advice from the Department of Foreign Affairs and Trade (DFAT) in Beijing, indicating that the applicant would be able to apply under Article 7 of the Chinese Nationality Law for her child to be naturalised as a Chinese citizen. The Tribunal gives significant weight to this advice.

8. In support of this claim the applicant submitted a letter dated 25 February 2020 from Tianjin Anhao Law Firm. This letter, containing legal advice, was provided by Chinese lawyers on the applicant’s request (and presumably paid for by the applicant).  It was submitted that the applicant’s daughter is not able to apply for Chinese citizenship under Article 7 of the Chinese Nationality Law, because she is underage and has no capacity ‘for civil conduct’. It was stated that, as a minor, she cannot express her voluntary application for naturalisation as a Chinese national or citizen, nor can she demonstrate voluntary abidance by China’s Constitution and laws.

9. It was further submitted that the child’s parents, as her legal guardians, cannot apply for Chinese citizenship on behalf of their underage daughter as ‘this act does not properly protect the legal personal rights and interests of the child’. The Tribunal gives little weight to these submissions. It is a question for the Chinese law and judiciary to determine whether the application for Chinese citizenship lodged by parents on behalf of their underage child is in fact the best way of protecting their daughter’s legal and personal rights and interests. If her parents fail to apply for Chinese citizenship on behalf of their daughter, she may not be able to register for Hukou, enrol in school in China or obtain medical insurance. It is difficult to understand how a guardian’s failure to apply for Chinese citizenship on behalf of their daughter could be considered as acting in the best interest of their child.

10. The applicant claimed that it may be possible that the Chinese government could repatriate her daughter to Australia while it may not be possible for her parents to return here. This claim is highly speculative and is not based on any evidence. The evidence before the Tribunal is that the applicant’s daughter previously travelled to China with her parents and was granted a Chinese visitor’s visa. 

11. In his submissions of 5 May 2020, the applicant’s representative submitted that, due to current travel restriction caused by the COVID-19 pandemic, the applicant’s daughter will face difficulties obtaining a Chinese visa during this period. Again, this is a speculative claim. The Tribunal has no contemporary information as to whether the applicant recently applied on behalf of her daughter for a Chinese visitor’s visa.

12. In her written statement submitted to the Tribunal on 10 March 2020, the applicant wrote that her daughter has:

    an allergic constitution and suffered from urticaria several times and that China, air and water pollution is a very common situation, while food safety is not guaranteed. It is impossible to obtain the same food safety as Australia. In China, my daughter’s condition may get worse and will not get good treatment.

13. While is possible that air and water quality and food safety in Australia may be better than in China, there is no evidence before the Tribunal that the applicant’s daughter will not obtain appropriate medical treatment in China.

14. While there is no specific judicial authority on the meaning of ‘compelling need’ in this context, the Tribunal considers the comments of the Full Court, (Tamberlin, Conti and Jacobson JJ) at [24]), in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285, regarding the meaning of ‘compelling’, to be apposite:

    on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived.

15. More recently, the High Court approved and applied those observations in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197, where the plurality (French CJ, Bell, Keane and Gordon JJ) said at [31]:

    the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application.   

16. The Tribunal also notes that according to the Macquarie Dictionary Online[3] the term ‘compelling’ is defined to mean: “1. demanding attention or interest … 2. convincing: a compelling argument”. It defines ‘compassionate’ to mean: “1. having or showing compassion. 2.  on the grounds of compassion: compassionate leave 4. to have compassion for; pity”. Similarly, the Oxford Dictionaries Online[4] defines ‘compelling’ to mean: “evoking interest, attention, or admiration in a powerfully irresistible way … not able to be refuted; inspiring conviction … not able to be resisted; overwhelming”.

    [3]    

    [4]    

17. On the basis of the above factors, the Tribunal is not satisfied that there is any persuasive evidence before it that is so powerful or irresistible that it demonstrates a compelling need for the applicant and/or her family to remain in Australia.

18. In his submissions of 10 March 2020, the applicant’s representative submitted that:

    ‘It might be possible for her to return to China with her parents, but it will involve a sudden change of living environment, deprivation of her entitled welfare and may even require a loss of Australian citizenship. It is obviously against her best interests to give up her entitlements and rights as an Australian citizen. We further submit that although Chinese Law leaves the possibility for [her daughter] to obtain Chinese citizenship, it is not practical to do so due to other Chinese regulation requirements’.

19. While it accepts that the applicant’s daughter may lose Australian citizenship upon acquiring Chinese citizenship, the Tribunal is satisfied that it is in the best interest of a child to remain living with her parents, to be able to attend school in China, have medical insurance and be entitled to other rights arising out of her Chinese citizenship.   

20. The Tribunal has taken into consideration all the claims made in this regard however it considers that the purpose for which the applicant’s visa was granted to her no longer exists and it is not satisfied that the evidence before it establishes a compelling need for the applicants to remain in Australia.

    The extent of compliance with visa conditions

21. The applicant was a holder of a Subclass 457 visa during the period from 29 May 2014 to 12 December 2016 when she was granted a subclass 186 visa. A condition 8107 was attached to her Subclass 457 visa. This condition inter alia prescribes in cl.8107(3)(b) that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days. If follows that the applicant’s Subclass 457 visa could have been cancelled under s.116(1)(b) of the Act. (holder has not complied with a condition of the visa)

22. The applicant failed to inform the Department that in August 2016, she ceased employment at Royal Mail Hotel Ballarat. As of August 2016, the applicant was no longer entitled to hold a Subclass 457. Her Subclass 457 visa could have been cancelled under s.116(1)(a) of the Act as the circumstances allowing the grant of this visa no longer existed.

100.   The applicant failed to inform the Department of a change of her residential address. She conceded in her evidence that she provided incorrect answers on several incoming passenger cards. This is a potential ground for a Subclass 186 visa cancellation under s.109 of the Act. Similarly, it appears that the applicant provided an incorrect answer in the visa application form where she wrote that she ceased employment at the Royal Mail Hotel Ballarat on 16 October 2015. When the Tribunal observed that that this was inconsistent with her oral evidence in which she stated that she ceased employment in August 2016, the applicant could not explain why she wrote 16 October 2015 in the visa application form.

101.   In her oral evidence, the applicant conceded that, as the holder of a Student visa between 2008 and 2012, she was enrolled in three separate degree courses and did not complete any of them.

102.   In the context of all these circumstances, the Tribunal considers they weigh significantly in favour of the exercise of the discretion to cancel the visa.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members as a result of a cancellation decision

103.   The applicant submitted that her visa should not be cancelled because it would cause her and her family extreme hardship. The Tribunal has considered the length of time the applicant and her husband have been in Australia. The Tribunal accepts that they have both studied and obtained qualifications here and established themselves in the community. The Tribunal accepts that the applicant and her husband have an Australian citizen child who was born and raised in Australia and is currently attending pre-school. She is enrolled to commence primary school next year in Geelong.

104.   The Tribunal accepts that the applicant’s daughter may have some difficulties adjusting to a different education system in China. However, the Tribunal is not satisfied that the visa cancellation would cause significant hardship if the child’s attendance at pre-school in Australia was disrupted.

105.   The Tribunal accepts that the applicant and her husband rented a commercial premise in Geelong and operate a flower shop which employs an Australian citizen. The Tribunal accepts the applicant’s claim that she and her family may suffer financial hardship if they are required to repay their mortgage from China. However, the applicant submitted that she and her husband are in the process of selling their residential property located in Ashburton with the asking price exceeding $2.5 million. In addition, the applicant and her husband gave evidence that the Surrey Hills property was purchased in 2018 for $1.5 million. They presented no evidence as to why this property could not be sold if they are required to leave Australia.

106.   Despite the applicant’s claim, the Tribunal does not accept that the applicant and her husband would not be eligible for any pension or medical insurance as they have not worked in China. Both the applicant and her husband are Chinese citizens and there is no evidence before the Tribunal that they would be deprived of any entitlements associated with their citizenship. In addition, if they sell two Australian properties, the Tribunal is satisfied that the applicant and her family will not have significant financial difficulties if they are required to return to China.  

107.   The Tribunal has already considered the applicant’s claim that her daughter would not be able to register for ‘Hukou’ (family registration) in China which is required for school attendance and health care in that country (see paragraphs 83-87).

108.   The applicant stated in her evidence that both her and her husband’s parents live in China. They have no blood relatives in Australia. The applicant can communicate with her child in both Chinese and English. Considering her family composition, formal education completed in China and Australia and her work experience gained in Australia, the Tribunal is satisfied that the applicant and her family will be able to re-establish themselves in China.

Circumstances in which ground of cancellation arose. 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

109.   The ground for cancellation arose in circumstances in which the Department conducted integrity checks with the nominator on 30 August 2017, who confirmed that the applicant ceased employment at the Royal Mail Hotel Ballarat four months prior to the grant of the visa.

110.   The applicant claims that the circumstances in which the ground for cancellation arose were beyond her control for the following reasons:

In August 2016 she fell pregnant and was diagnosed with ‘small for dates’ baby. She was warned by her doctor that she was at risk of miscarriage and decided to cease employment and to re-commence after the first trimester of pregnancy;

Her father in law who lives in China was diagnosed with a serious illness. Her husband made frequent trips to visit his ill father in China whilst he was undergoing treatment while she was alone to raise a newborn baby and as such, she could not commence work;

After she gave birth to her daughter on [date], she started having regular migraine attacks and was unable to commence employment; and

Sponsoring employer fell into liquidation on 13 July 2018 and even if she had commenced employment within six months of the grant she would not have been paid wages or superannuation.

111.   The Tribunal accepts that the applicant and her family went through a difficult period caused by her pregnancy, her father-in-law’s illness and her post-natal medical issues. However, the Tribunal does not accept that non-commencement of employment between 12 December 2016 and 12 June 2017 was caused by circumstances that were beyond the applicant’s control. Despite stating that she intended to return to work after the first trimester of her pregnancy, she failed to do so.

112.   The applicant’s oral evidence was inconsistent with her written statements in which she did not claim that she was on unpaid leave from August 2016 to November 2016 and again from February 2017 to July 2017. In her written statement submitted to the Tribunal on 10 March 2020, the applicant stated that she stopped working at the Royal Mail Hotel Ballarat in August 2016 because of the financial problems her employer experienced at that time.

113.   She conceded in her evidence that she neither formally applied for unpaid leave to her employer nor she was able to provide documentary evidence in support of this claim. She failed to inform the Department that she ceased employment in August 2016. According to her evidence, the first time she attempted to contact her employer in order to commence work at the hotel was in March 2018, some nine months after the prescribed period ended.

114.   The Tribunal finds that, by ceasing employment with her nominating employer and knowing that she was awaiting the grant of a permanent visa, the visa holder has deliberately avoided notifying the Department of her circumstances and obtained a migration advantage. Had the Department been aware of these circumstances and the fact that the visa holder ceased work while holding a Temporary Work visa it is possible that Subclass 186 visa may not have been granted or would have undergone further processing.

115.   For the above reasons, the Tribunal does not accept that anything arises in the circumstances in which the cancellation arose that would weigh against cancellation of the visa. On the contrary, in light of the circumstances, the Tribunal considers that they weigh in favour of the exercise of the discretion to cancel the visa.

Past and present conduct of the visa holder towards the Department

116.   The visa holder failed to notify the Department of cessation of employment and as such maintained a Subclass 457 visa while she awaited the outcome of her Subclass 186 visa grant. The applicant acknowledged in her evidence that she did not advise the Department that she did not work in the nominated employment at the nominated location after August 2016. The Tribunal finds that she misled the Department in order to retain her permanent residency.

117.   The Tribunal expressed its concern as to the applicant’s credibility, considering the inconsistency between her written statements and oral evidence given at the Tribunal hearing. 

118.    The Tribunal places some weight on this consideration as favouring the exercise of the discretion to cancel the visa.

Whether there are persons in Australia whose visas may be cancelled under s.137T

119.   The Tribunal notes that the applicant’s husband’s visa has been cancelled under s.137T. The Tribunal accepts that Mr Zhang has also been in Australia since 2008 and has owned various businesses, bought a residential property as well as a property which he is currently re-developing. The Tribunal accepts that he has established a life in Australia with his family.

120.   The Tribunal considered the submissions and documentary evidence presented in support of claimed hardship and accepts that that visa cancellation would considerably impact Mr Zhang. For this reason, the Tribunal gives this consideration some weight against cancellation of the visa.

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

121.   The cancellation would enliven s.48 of the Act and result in the visa holder and her family being unlawful and subject to detention and removal from Australia. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow her to remain in Australia. If that is the case, she can depart Australia. Whilst her failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

122.   If the visa remains cancelled, the applicant and her family will be affected by a ‘risk factor’. This will result in the imposition of a three-year exclusion period (PIC 4013).

123.   These are the intended consequences of visa cancellation and the Tribunal is not persuaded that there is anything in this factor that weighs against the exercise of the relevant discretion to cancel the visa.

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

124.   In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

125.   The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration.

126.   As previously stated, the Tribunal accepts that China does not recognise dual nationality for any Chinese national. The Tribunal further accepts that a potential consequence of the applicant’s daughter acquiring Chinese citizenship may be loss of her Australian citizenship.

127.   Based on the advice received from DFAT in Beijing, the Tribunal is satisfied that the applicant would be able to apply on behalf of her daughter to be naturalised as a Chinese citizen. The Tribunal is satisfied that, considering the circumstances of this case, securing Chinese citizenship status for the applicant’s daughter is in the best interest of the child as this will enable the child to remain with her family, register for Hukou, enrol in school in China and obtain medical insurance.

128.   The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR would not be affected by the cancellation of the applicant’s visa as the family would not be separated because of the cancellation.

129.   The Tribunal has already considered the applicant’s claim that it may be possible that the Chinese government could repatriate her daughter to Australia and found it to be highly speculative claim that is not based on any evidence.

130.   Similarly, the Tribunal has already considered the applicant’s claim that, because of her daughter’s allergic constitution and issues with urticaria (skin condition), her condition will get worse and she will not be able to obtain quality medical treatment in China. While the Tribunal acknowledged that air and water quality and food safety in Australia may be better than in China, the applicant presented no evidence in support of her claim that her daughter will not obtain adequate medical treatment in China.

131.   The visa holder and her husband are nationals of China. While the applicant claims that returning to China after having made a life in Australia would impact on her family’s life considerably, there is no information before the Tribunal which indicates that visa cancellation would impact Australia’s international obligations or would be in breach of Australia’s non-refoulement obligations.

132.   The Tribunal therefore attributes little weight to these considerations in deciding whether to exercise the discretion to cancel the visa.

Any other relevant matters

133.   The applicant’s representative submitted that in January 2020, the applicant and her family relocated to Geelong (regional area), opened a flower shop and employed an Australian citizen to work in this business. He submitted that, according to the Department’s policy, strong ties to regional Australia and continued employment in that area may be given special consideration.

134.   The Tribunal gives limited weight to this consideration, noting that the applicant and her family moved to Geelong only after their visa was cancelled on 1 November 2019. Prior to visa cancellation, the applicant’s husband did not live or work in regional Australia.

135.   After considering the statements from the applicant’s and Mr Zhang’s joint bank account held at Commonwealth Bank, listing transactions from 1 May 2014 to 31 October 2015, and the Tribunal’s finding that only four transactions occurred in Ballarat during this period, the Tribunal is not convinced that the applicant lived and worked in Ballarat as claimed during this period.

136.   The Tribunal finds that the oral evidence of the applicant, for reasons noted above, is inconsistent and somewhat lacking in credibility.

137.   The Tribunal acknowledges that the applicant and her husband made donations to Royal Melbourne Hospital, Gippsland Emergency Relief Fund and NSW Rural File Services and Brigades Donation Fund.

138.   Balancing all of the relevant considerations and discretionary factors, and having considered the applicant’s circumstances individually and cumulatively, the Tribunal concludes, on the basis of the applicant’s knowing and ongoing failure to commence the nominated employment, her failure to advise the Department of her relevantly changed circumstances and her apparent disregard of her obligations in this respect, as well as the Tribunal’s above-mentioned concerns as to the credibility of some of the evidence provided, the Tribunal considers that the factors in favour of the exercise of discretion to cancel the visa outweigh those reasons for not cancelling her visa. 

DECISION

139.   The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

140.   The Tribunal has no jurisdiction with respect to the other applicant.

Antonio Dronjic

Member

Attachment ‘A”

list of documents submitted to the Tribunal on 10 and 16 March 2020 and 14 April 2020

On 10 March 2020 the applicant submitted the following documents:

·Email from Geelong Grammar School confirming an enrolment application for [her daughter]

·Three pictures of a young female child. The third picture has two children (undated)

·ASIC – Current Company Extract for ‘Clover Flowers Pty Ltd’

·Statement from Jie Zhang (certified in English and original in Chinese)

·Bone Marrow Image Report, from Peking University (People’s Hospital, Diagnosis Center of Blood Research Institute) for Bushuan Zhang (certified in English and Original in Chinese) (16/11/2018)

·Agreement / Contract Between Mushan Architect and Yuan Xing (3/3/2020)

·Residential Tenancy Agreement between Nicole Karen Vella / Jasmine Noami Goddard and Jie Zhang / Yuan Xing.

·2020 Land Tax Assessment Notice, issued to Blackhorse Enterprises Pty Ltd (7/2/2020)

·Email correspondence from Goodstart Geelong East to Jie Zhang (27/2/2020). The email outlines the process for enrolling a child into Goodstart Geelong East.

·Donation receipts to Gippsland Emergency Relief Fund and NSW Rural File Services & Brigades Donation Funds (13/112019 – 12/1/2020)

·Diagnosis Certificate for Discharge from Peking University People’s Hospital for Bushuan Zhang (certified in English, original in Chinese) (28/08/2017)

·Proposed lease – [Address 2], Geelong VIC 3220 (17/1/2020)

·Submission from Chua Tan Associates to the Administrative Appeals Tribunal (10/3/2020).

·Victorian Driver’s Licence of Jie Zhang and Victorian Driver’s for Yuan Xing

·Letter from Yuan Xing to Tribunal (certified in English, original in Chinese) (translated on 9/3/2020)

·Lawyer’s letter from Tianjin Anhao Law Firm (certified in English, original in Chinese) (25/2/2020)

·Seek advertisement for a Florist for Clover Flowers Ptd Ltd (27/2/2020)

·An email from the representative informing the Tribunal that they made submissions (10/3/2020)

On 16 March 2020 the applicant submitted the following documents:

·Architectural plans from Muchsan Architects for Clover Flower

·Fee Proposal for Building Surveying Services – Internal Tenancy Fitout for Clover Flower @ [Address 2], Geelong, from Anchor Building Certification Surveyors to Muchsan Architects (12 March 2020)

·Official donation receipt for income tax purposes from the Royal Melbourne Hospital to Yuan Xing (15/3/2020)

·An email from the representative informing the Tribunal that they made submissions (16/3/2020)

On 14 April 2020 the applicant submitted the following documents

·Submission from Chua Tan Associates to the Administrative Appeals Tribunal (114 April 2020).

·Letter from Rachael Dewhurst (Geelong Grammar School) confirming [her daughter]’s place in the three year old group (1/4/2020)

·Four photographs of a female child. The third photograph is of the female child and a female adult (undated)

·Photographs of a construction site (undated)

Attachment B

·Offer of employment and job description from RMH Sebastopol Pty T/A Royal Mail Hotel to Yuan Xing (6/1/2016). The position if for ‘Restaurant Manager”.

·Smart Access (Commonwealth Bank) statements for the period of 1 May 2014 – 31 October 2015)

·Letter from Yuan Xing to the Tribunal (dated 4/5/2020)

·Cover letter from Chua Tan Associates to the Administrative Appeals Tribunal (5/5/2020)

·Taxation documentation for Yuan Xing (2014-2015), including Notice of Assessment – year ended 30 June 2015 (date of issue 20/10/2015). Taxation document for Yuan Xing (2015-2016), including Notice of Assessment – year ended 30 June 2016 (date of issue 17/2/2017). Taxation document for Yuan Xing (2017-2018), including Notice of Assessment – year ended 30 June 2018 (date of issue 17/5/2019)

·Before and after photographs of a construction site

·Confirmation of Foreign Exchange Transaction

·Job offer letter from Clover Flowers Pty Ltd to Molly Lambert for the position of ‘Florist’ (signed by Yuan Xing on 31/4/2020, and signed by Molly Lambert on 1/5/2020)

·Complete Variable Home Loan Statement from Bank West (for the period 19/06/2019 – 18/12/2019)

·Statement of RAMS Home Loan (for the period 1 July 2019 – 31/12/2019)

·Photographs of a florist shop

·Cover letter from Chua Tan Associates to the Administrative Appeals Tribunal (5/5/2020)

Attachment C

·Photographs of a florist shop, flowers in a vehicle and a price list (undated)

·Westpac Business Once Activity Statement (transactions between 18/2/2020 – 11/5/2020)

·Passport of Molly Charlotte Lambert

·Quotation for Mr Jie Zhang (7/5/2020)

·Submissions from Chua Tan Associates to the Tribunal (12/5/2020)

·Real estate contract listing property with Shelter Real Estate (signed on 4/5/2020)