Xu (Migration)

[2020] AATA 4549

Xu (Migration) [2020] AATA 4549 (6 August 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zongxiu Xu
Ms Xiaofang He

CASE NUMBER:  1931986

DIBP REFERENCE(S): BCC2019/2876715 BCC20192876715

MEMBER:John Cipolla

DATE OF DECISION:  6 August 2020

DATE CORRIGENDUM

SIGNED:10 November 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The decision date on the covering page of the decision should read ‘6 August 2020’ not ’6 July 2020’.

John Cipolla
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zongxiu Xu
Ms Xiaofang He

CASE NUMBER:  1931986

HOME AFFAIRS REFERENCE(S):          BCC2019/2876715 BCC20192876715

MEMBER:John Cipolla

DATE:6 July 2020      

PLACE OF DECISION:  Sydney

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 6 August 2020 at 3:48pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – commence work within 90 days of arrival in Australia – work with the nominated employer never commenced – applicant worked in different occupation – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80           

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 16 October 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. On4 January 2017 the applicant was granted a 457 (Temporary Work (Skilled)) visa for the nominated profession of Bricklayer (ANZSCO 331111). The delegate cancelled the visa under s.116(1)(b) on the grounds that the applicant had not complied with the conditions of the visa, namely condition 8107 (3)(aa)(i) which stipulates that the visa holder must commence work within 90 days of arrival in Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The delegate contacted the applicant’s former employer on 06 August 2019 prior to dispatching the Notice of Intention to Consider Cancellation (NOICC) to confirm the applicant’s current contact information, to which the employer could provide no assistance. The Department contacted the applicant on the last known email address of service on 21 August 2019 to obtain their current contact information and no response was received. The NOICC and Decision subsequently was dispatched by registered post, on 04 September 2019 and 16 October 2019 respectively, to the last known postal service address on record for the applicant, in Fujian Province, China, and the last email address provided by the applicant.

4. The delegate set out the prospective grounds for cancellation of the visa in the NOICC. The delegate explained that one of the conditions required to be met by the applicant was 8107(3)(aa)(i) which stipulates that he commence work within 90 days of arriving in Australia with his nominating employer, Rock Build Developments. The delegate noted that the applicant had arrived in Australia on 07 February 2017, and that according to a letter received from the former employer by the Department on 01 February 2018, the applicant had never actually commenced work with the nominated employer. The applicant was invited to comment on this information and no response was received.

5. On 19 October 2019 the delegate proceeded to decision with recourse to the information at hand. The delegate stated, that on this basis, it appeared grounds for cancellation existed under s116(1)(b) and proceeded to weigh discretionary factors for and against cancellation of the visa. With regard to the purpose of the visa holder’s travel to and stay in Australia, the delegate noted that the applicant had been granted a temporary work visa, that they had resided in Australia for 33 months without commencing work with their nominated employer, and placed significant weight on this consideration in favour of cancellation. The delegate noted that the applicant had not commenced work with their employer within 90 days of entering the country, as required by condition 8107, and that this failure to comply with visa conditions warranted significant weight being given to this consideration in favour of cancellation. When assessing the degree of hardship that may result from cancellation, the delegate noted that the applicant had not responded to the NOICC, but speculated that some hardship may result for the primary and secondary applicants, who may be forced to depart the country, and gave a some weight to this consideration in favour of cancellation. In considering the circumstances in which the ground for cancellation arose, the delegate noted the applicant would have had some degree of control in communicating with his employer to come to an arrangement, should difficulties have arisen with regard to a start date, and that this had not appeared to have occurred in 33 months that the applicant had been in Australia and gave some weight to this consideration in favour of cancellation of the visa. The delegate identified no adverse behaviour toward the Department, and gave a little weight in their favour in not cancelling the visa on this account, and identified the secondary visa holder, whose visa would be consequentially cancelled in the event of the applicant’s visa cancellation, giving this some weight in favour of not cancelling the applicant’s visa. When looking at the legal consequences of cancellation of the visa, the delegate noted the applicant would be liable for detention and removal, and may also have some restriction placed upon their capacity to apply for visas in the future, and gave this consideration a little weight against cancellation. Finally, the delegate considered international obligations, specifically the UN’s Convention on the Rights of the Child and noted that the applicant’s child is presently situated offshore and the cancellation would facilitate their reunion in their home country – however gave a little weight to this consideration in favour of the applicant. The delegate determined, having regard to all factors cumulatively, that the visa should be cancelled and the delegate proceeded to cancel the applicant’s visa under s116(1)(b).

6. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

7. The applicant appeared before the Tribunal on 5 August 2020 via teleconferencing facilities to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. At the outset of the review hearing the Tribunal went into significant detail about the respective issues in review and about the review process. For the benefit of the applicant the Tribunal also explained how the now obsolete Subclass 457 visa operated and that it existed to serve Australian employers and businesses to meet skills shortages in defined occupational groups by enabling Australian businesses to employ an overseas worker for a finite period.

9. The applicant provided his personal details. The Tribunal asked the applicant when he first arrived in Australia and he advised in February 2017. The Tribunal asked the applicant what sort of visa he travelled to Australia on and he advised a Subclass 457 visa that he had applied for from overseas in China.

10. The Tribunal asked the applicant whether he had ever worked as a bricklayer in Australia and the applicant stated that when he arrived in Australia the agent that arranged the 457 visa never took him to the company that sponsored him and that he had to look for work elsewhere.  The Tribunal once again asked the applicant whether he had ever worked in Australia as a bricklayer and the applicant advised he had not. The Tribunal asked the applicant whether he had ever worked for Rock Build Developments Pty Ltd and he advised he had not as he could not find them.

11. The Tribunal asked the applicant whether he agreed with the Departmental findings that he had failed to commence work with Rock Build Developments Pty Ltd within 90 days of arriving in Australia and the applicant advised that he did agree with this finding.

12. The Tribunal asked the applicant whether he ever attended the Department when the agent failed to take him to the business or when he could not find the sponsoring business to advise of these problems and the fact that he could not commence work with his sponsoring employer. The applicant advised that he did not. The Tribunal asked the applicant why he did not attend the Department and he advised he started working as a tiler for another business.

13. The Tribunal noted that the applicant had been granted a 457 visa to meet an identified skills shortage in Australia and that he was expected to commence work for his sponsoring business as a bricklayer and that the visa had not been granted to enable him to obtain any work in Australia. Once again, the Tribunal asked the applicant why he did not go to the Department to advise them of the problems he had upon arriving in Australia.  The applicant stated the first issue was the language barrier, as he did not speak English.  The second factor was that is family in China had supported him to meet the costs associated with him coming to Australia. The applicant stated that he needed money to support himself and his wife in Australia and that is why he obtained work as a tiler and did not report the issues to the Department. The applicant advised that he has been supporting himself in Australia as a tiler since his arrival in February 2017 and that he was paying rent for premises in Riverwood NSW.  He advised his wife was also working in a laundry factory.

14. The Tribunal asked the applicant whether he had children and he advised he had a son who was now 13 years old and was residing with his parents in China.

15. The Tribunal invited the applicant to provide any further evidence as to why his visa should not be cancelled.  The applicant advised that he wanted the Tribunal to re-instate his visa and that he would not to be able to find work if he returned to China.

16. 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

17. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

18. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(b) which says that if the visa holder ceases employment the period during which the holder ceases employment must not exceed 60 days.

19. The applicant’s employer notified the Department that the applicant never commenced employment with them after he arrived in Australia.  At hearing the applicant confirmed that he arrived in Australia in February 2017 and that he never commenced work for his sponsoring employer.

20. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

21. 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.

22. The Tribunal discussed with the applicant at hearing the purpose for his travel to and stay in Australia. With regard to his travel history to Australia the applicant advised the Tribunal that he and his wife relocated to Australia from China in February 2017 with the applicant holding a Subclass 457 visa and expecting to work for four years as a bricklayer with a business called Rock Build Developments Pty Ltd.  The applicant gave evidence at the review hearing that he never commenced work with any employer after his arrival in Australia and the applicant claims to have worked in Australia as a tiler since his arrival in February 2017.  The evidence of the applicant is that he engaged an agent, to secure him a Subclass 457 visa with his wife travelling to Australia as a secondary visa applicant. As noted, the evidence indicates that since the time of the applicant’s arrival in Australia in February 2017, he has not undertaken work for his sponsoring employer as a bricklayer and has found ongoing work as a tiler. The applicant has never approached the Department to query his circumstances after no work was made available to him with the sponsoring employer after his arrival in Australia. The Tribunal gives this consideration significant weight in favour of the visa cancellation.

23. The Tribunal discussed with the applicant the extent of compliance with visa conditions. The evidence of the applicant was that he never commenced work with his sponsoring employer and as noted he never approached the Department to discuss his change of circumstances when no bricklaying job with his sponsoring employer was available to him in Australia. The Tribunal discussed with the applicant the operation of condition 8107 and that the evidence before the Tribunal indicated that the applicant did not comply with the requirements of that condition which stipulated that if he must commence work with his sponsoring employer within 90 days. This had clearly not transpired and the Tribunal gives this consideration significant weight in favour of visa cancellation.

24. The Tribunal discussed with the applicant at hearing the hardship that may be caused to he and his wife as a consequence of the cancellation of the his visa. The applicant stated that he and his wife had both secured work in Australia, the applicant as a tiler and his wife in a laundry factory. The applicant made a general assertion that he could not find work if he returned to China.  As has been noted the applicant applied for a Subclass 457 visa to enable him to work for an Australian business as a senior bricklayer in order to address a skills shortage in that occupation.  As has further been noted the applicant did not approach the Department when he learned that there was no work for him as a bricklayer in Australia to report his change of circumstances. The evidence is that the applicant has worked in Australia since his arrival as a tiler and his wife had undertaken work in a laundry factory. The Tribunal notes the evidence of the applicant that his son resides in China with his parents.

25. The Tribunal notes that the grant of a Subclass 457 visa is temporary in nature for a finite period of four years and that there may be a prospect beyond that visa of permanent residence, but this is not guaranteed. The Tribunal notes that the cancellation of the applicant’s visa for breach of condition 8107 as a consequence of never commencing work for his nominating business along with his assertion of no job prospects upon return to China are factors that lend weight against the cancellation of the applicant’s visa.

26. With regard to the circumstances in which the ground for cancellation arose the Departmental delegate noted that the evidence before them indicated that the sponsoring employer had notified the Department that the applicant never commenced employment with his sponsoring employer after arriving in Australia in February 2017.

27. The evidence before the Tribunal indicates that the applicant, despite not being engaged in work by his sponsoring employer, never approached the Department in an attempt to regularise his immigration status. The applicant failed to respond to the NOICC. Having regard to the applicant’s past and present behaviour towards the Department he has not been cooperative with the Department since his arrival in Australia and the Tribunal gives this consideration weight in favour of visa cancellation.

28. The Tribunal notes that the applicant has a wife who is a secondary visa holder. The evidence, as noted indicates that she is working in Australia in a laundry factory in Australia.  The applicant’s 13 year old son, has remained in China with the applicant’s parents.  Having regard to the consequential cancellation of the secondary visa applicants visa the Tribunal gives this consideration a little weight against cancelling the visa.

29. The Tribunal has had regard to the fact that the applicant may be liable to be detained under section 189 of the Migration Act or indeed removed under section 198 of the Migration Act and that he will be subject to section 48 of the Migration Act limiting his options to apply for further visas to Australia. The Tribunal gives this consideration little weight against visa cancellation.

30. There is no evidence before the Tribunal that would indicate that Australia would be in breach of its non- refoulement obligations if the applicant was removed from Australia. The Tribunal gives this consideration weight in favour of visa cancellation.

31. The Tribunal has considered all of the relevant discretionary considerations both singularly and cumulatively. The Tribunal notes that the grant of a Subclass 457 visa leads to temporary residence for a period of up to 4 years to work for a sponsoring employer in Australia. The evidence indicates that the applicant never commenced working for his sponsoring employer after he arrived in Australia in February 2017. The Tribunal having regard to the relevant discretionary considerations finds when those considerations are cumulatively considered that the applicant’s visa in the circumstances of this case should be cancelled.

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

    decision

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

34. The Tribunal has no jurisdiction with respect to the secondary visa applicants.

    John Cipolla
    Senior Member