Yang (Migration)

[2022] AATA 1806

Yang (Migration) [2022] AATA 1806 (14 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huachang Yang

CASE NUMBER:  2103679

HOME AFFAIRS REFERENCE(S):          BCC2020/1589033

MEMBER:Michael Cooke

DATE:14 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 14 March 2022 at 4:38pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa –breached condition 8107– applicant ceased employment for more than 60 consecutive days – applicant’s approved nominator employer changed company ownership – applicant continued employment –beyond his control –decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116

CASES
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 March 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that he has not complied with condition 8107(3)(b) because the period during which he has ceased employment has exceeded 60 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant forwarded a personal submission and a job offer as follows:

   Dear Officer,

   Thank you for your letter.

   I am confirming that I am currently stood down due to lockdown. My employer GH Digital Holdings Trust T/As TWMG has indicated that I will resume my position once the health related restrictions are lifted.

   At present my TSS nomination application lodged on the 26th June 2020 (TRN: EGOPZQRWEU and my TRT Sub Class 186 nomination lodged on the 27th October 2020 (TRN: EGOQF57HOI) are pending for assessment and decision by the Department of Home Affairs. And, my Sub Class 186 visa application was lodged on the 5th November 2020 (TRN: EGOQFPAILE)

   I find it surprising that my visa was cancelled at the same time of pending two nomination and one visa application. I am also sending you herewith my most recent employment contract for your reference.

   Please kindly consider my situation and reinstitute my visa.

   Kind Regards

   Huachang YANG

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

6. 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) attached to the applicant’s visa. This condition requires that if the holder ceases employment - the period during which the holder ceases employment must not exceed 60 consecutive days.

7. However, it appears that there was a ‘back story’ to the applicant’s situation. The applicant submitted the following information to the delegate:

8. The delegate’s decision (submitted by the applicant and found on the Tribunal file) discloses that the standard business sponsor who nominated the applicant in the most recently approved nomination for the visa (The Website Marketing Group Pty Ltd - TWMG) (‘the sponsor’), had its nomination approved on 27 March 2017. It subsequently advised the Department that The Website Marketing Group Pty Ltd (the sponsor) was sold in April 2019. Therefore, the applicant was taken to have ceased employment with them effective April 2019.

9. The Tribunal understands that the problem for the applicant is that he continued working for what he thought was the same company (The Website Marketing Group Pty Ltd) since April 2019. Essentially, it was the same company - but due to a management buyout it was not the company which was the approved standard business sponsor which originally nominated him. His present employer, he informs is essentially the same organization with different management. On 15 June 2020 he received a job offer from the rejigged company (GH Digital Holding Trust t/a TWMG) inviting him to to work for them.

10. The applicant fully explained the situation to the Department as follows:

    RE: RESPONSE TO NOTICE TO CONSIDER CANCELLATION OF TEMPORARY BUSINESS ENTRY (Class UC) Temporary Work (Skilled) (Subclass 457) visa under section s 116 (General Power) of the Migration Act 1958

    This is Huachang YANG. I am writing this Letter with respect to the above mentioned Notice of Cancellation.

    I am currently employed by The Website Marketing Group (TWMG). I have always been working for TWMG since my arrival in Australia. Between 2017 and to current date TWMG had many changes in the Directorship.

    So, when there was a change in Directorship back in April 2019, I was under the impression that a new director has been appointed in the business. All staff including me was told that TWMG have a new owner and we believed that a new Director will continue to operate TWMG. From April 2019 to current date, I have worked for TWMG and my payslips still carries the name of The Website Marketing Group Pty Ltd. I was therefore under the impression that I am working for the company which sponsored me without knowing more than that.

    After receiving this Notice, I asked a clarification from my current owner and been advised that the current Director Mr Kirby have taken over the business and been appointed as a Director only few months back. Mr Kirby advised me that he had no prior knowledge of the Company activities in relation to the requirement for my nomination to be transferred to the new company.

    After the ease of this lockdown Mr Kirby signed a new employment contract with me which is similar to my previous employment contract. And, as soon as I brought this to his attention a new nomination application has been lodged.

    I have enclosed the following documents for your kind consideration:

    1. Payslips from May 2019 till now (My last salary payment was received on 26/03/2020 and the salary payment was stopped because of the COVID-19. We are now back to work and my salary will restart from early July 2020)

    2. Salary Bank statements from May 2019 till now

    3. My new employment contract

    4. The acknowledgement of the new nomination application letter

    My understanding is that my sponsor company changed director last year. And I keep working for my sponsor company till now. Please kindly consider about the above Information and evidences and not to cancel my 457 visa. And if there are any further enquiries, please feel free contact me.

    Huachang YANG

11. It is apparent that the applicant’s approved nominator employer changed company ownership - through a management buyout. The company correctly informed the Department and also informed the applicant – he informs. However, due to a communication breakdown, and lack of professional advice, the applicant did not fully understand the significance of this event on his own visa situation. His employer did not help matters by continuing to employ him (seamlessly) and doubling down on the misconception by issuing him wage slips which indicated he was still working for the same company. The situation got worse when the employer (he thought was his approved nominator but was not) laid him off during the COVID 19 pandemic.

12. He had a lengthy layoff and thus breached the requirement in condition 8107(3)(b) attached to his visa. This condition requires that if the holder ceases employment - the period during which the holder ceases employment must not exceed 60 consecutive days. Even though, initially, he thought he was working for the employer who sponsored him - he was not. Furthermore, because of his (pandemic induced) layoff, he also breached the 60 consecutive days stipulation found in in condition 8107(3)(b). Despite all this confusion he has signed a new contract and a new nomination application has been lodged with the Department.

13. 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

14. 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’.

    Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:

    ·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

15. The applicant was granted a Temporary Work (Skilled) (Subclass 457) visa on 31 March 2017 for the purpose of employment with an approved sponsor in his occupation as a Marketing Specialist. The Department received notification that the sponsor’s business, The Website Marketing Group (TWMG) was sold in April 2019 to new owners with a new ABN. Since April 2019, he has been nominated by another approved sponsor (GH DIGITAL HOLDINGS PTY LTD), which indicates to be the new ABN holder of TWMG - essentially the same but rejigged company - to work in his occupation.

16. The Tribunal gives this consideration significant weight against cancellation.

    ·the extent of compliance with visa conditions

17. The applicant does not appear to have breached any other condition than 8107(3)(b).

18. The Tribunal gives this consideration significant weight against cancellation.

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

19. The Tribunal is satisfied that the history of the applicant’s matter indicates he would suffer significant hardship - were the cancellation to be affirmed.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

20. Essentially, the circumstances in which the ground for cancellation arose were beyond the applicant’s control (see above).

21. The Tribunal gives this consideration significant weight against cancellation.

    ·past and present behaviour of the applicant towards the department

22. The Tribunal finds no evidence of adverse behaviour towards the Department.

23. The Tribunal gives this consideration some weight against cancellation.

    ·whether there would be consequential cancellations under s.140

24. Not applicable

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

25. The applicant has a pending ENS Temporary Residence Transition (Web)(EN 186) visa application pending before the Department. He was granted an associated Bridging A visa upon lodgement of this application. If the applicant were not to resolve his visa status or voluntarily depart Australia, he would become an unlawful non-citizen and may be liable for detention under s189 and removal under s198 of the Act.

26. If his visa were cancelled, the applicant might be eligible to apply for a Bridging E visa to remain in Australia while awaiting the outcome of his pending visa application.

27. The applicant would also be affected by s.48 of the Act, which would cause him to have limited options if applying for further visas while in Australia.

28. The Tribunal gives this consideration significant weight against cancellation.

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

29. There is no information before the Tribunal to suggest that the visa cancellation will lead to a breach of Australia’s international obligations.

30. The Tribunal gives this consideration neutral weight.

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

31. Not applicable

    ·any other relevant matters

32. None

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

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Michael Cooke
    Senior Member