Yao (Migration)

[2020] AATA 1365

Yao (Migration) [2020] AATA 1365 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhongfei Yao
Mrs Linlin He

CASE NUMBER:  1822903

HOME AFFAIRS REFERENCE(S):          BCC2018/1554260

MEMBER:Nicola Findson

DATE:17 April 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay) visa.

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

Statement made on 17 April 2020 at 9:59am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – breach of condition to work only for sponsor or associated entity – work for another business during unpaid leave – discretion to cancel visa – inconsistent evidence – stress-related health problems or downturn in work available – wife’s health, daughter’s education and support for parents in China – employment and health consequences of returning to China – daughter can apply for student visa – decision under review affirmed for first applicant, no jurisdiction for second applicant

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348

Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(a)(ii)(B)

CASES

Rani v MIMA (1997) 80 FCR 379

Tien 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 3 August 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) 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 the applicant did not comply with a condition of his Subclass 457 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. 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 second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the 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 the second named applicant.

4. The applicants appeared before the Tribunal on 16 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the grounds 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?

7. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(a)(ii)(B) attached to the applicant’s visa. This condition requires that the visa holder must only work in a position in the business of the sponsor or an associated entity of the sponsor.

8. The delegate’s notification of cancellation, a copy of which was provided to the Tribunal by the applicant for the purposes of the review, records that on 26 July 2018 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa.  In summary, that NOICC set out the statutory basis for the consideration of the cancellation of the applicant’s visa.  It indicated that on 10 March 2016, the applicant was granted a Subclass 457 visa, having been sponsored by Metwest Steel Pty Ltd to work in a nominated position.  However, during a period of unpaid leave from 21 July to 3 November 2016, the applicant was working in a position outside the business of is sponsor or an associated entity of theirs, as evidenced by him being paid a wage during this period by Quantum International, which Australian Securities and Investments Commission confirm has no association with Metwest Steel Pty Ltd. 

9. The applicant responded to the NOICC on 1 August 2018.  He did not dispute that the ground for cancellation existed and the following is a summary of the information he provided:

   ·Not long after commencing with MetWest Steel Pty Ltd he started to suffer health-related problems as a result of excessive stress at his new workplace.

   ·In July 2016, he took a leave of absence from his role to recover from his ailment.

   ·His wife also suffers poor health – rheumatoid arthritis – and during this time was unable to work.

   ·The financial situation of his family became extremely tight due to the expenses of his wife’s medical treatment as well as his daughter’s education.  He had no choice, during his period of leave from MetWest Steel Pty Ltd, to find an easy job which was close to where he was living, to cover his family’s expenses.

   ·Because of his limited English, his understanding of the conditions attaching to his Subclass 457 visa was also limited.  He did not know that working for an employer who was not is sponsor constituted a violation of the conditions of his visa.  Since he returned to work at MetWest Steel Pty Ltd, he has abided by the visa requirements.

   ·His family has been living in Australia for many years and they have adapted to working and living in this country.  He would find it very difficult to return to China and obtain work because of his age.  His wife’s rheumatoid arthritis would be negatively impacted by exposure to pollution.  Returning to China would also hamper his daughter’s further education and future.

10. At his hearing, the applicant confirmed to the Tribunal that during a period of leave from Metwest Steel Pty Ltd between 21 July and 3 November 2016, he did work for another company – Quantum International – which is a company not associated in any way with his sponsoring employer.

11. On the evidence before it, the Tribunal finds that the applicant was not working only in the business of his sponsor or an entity associated with his sponsor, but was also working for another company not associated in any way with his sponsoring employer.

12. 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

13. 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’.

14. At the hearing the applicant told the Tribunal that he came to Australia with his wife in February 2012 as the holder of a Subclass 457 visa.  He said his now 20 year-old daughter  joined him and his wife in Australia in 2014 to complete her high school studies, and then  returned to China to live with his parents at the end of 2017. The applicant told the Tribunal he worked as a welder for his sponsor – Howard Porter, in Bibra Lake, Western Australia – for the duration of his first Subclass 457 visa.  He said that he was granted another Subclass 457 visa in March 2016 to work as a welder for MetWest Steel Pty Ltd.     

15. The applicant told the Tribunal that he that he stopped working for his sponsor between July and November 2016, because there was a downturn in his workplace and there was not enough work for him to do.  He claims he was told by his sponsor not to come to work, and he was not paid, during this period.  The Tribunal discussed with the applicant that MetWest Steel Pty Ltd had sponsored him and so was obliged to provide him with work under the terms of the Subclass 457 visa. When asked by the Tribunal if he had complained to anyone about being made to stop work, he responded that he did not because he was a new employee and there was a language barrier.  When the Tribunal indicated to the applicant that it was concerned that there had been no contact with the Department to inform them of a change in his circumstances, he said he did not do this because he did not know he needed to and also because of his limited English.    

16. The Tribunal raised its concern with the applicant that his evidence of being asked by his sponsor not to come to work was inconsistent with the reason he had given the Department, as set out in the delegate’s notification of cancellation.  The applicant told the Tribunal that he was unsure why he did not disclose to the Department that his employer had told him not to come to work. He went on to say that the reason he gave to the Department was also true.  He said he was new to the company and its procedures.  He said MetWest Steel Pty Ltd was a fast-paced environment and he was responsible for assembling as well as welding.  He said his work was stressful to him and he became unwell.  He said he did not report his health problems to MetWest Steel Pty Ltd, because he was concerned the large contingency of Chinese workers there would learn about his health issue and he would be teased. 

17. The applicant told the Tribunal he started working at Quantum International, which was an easier job for him, one or two weeks after he took leave from MetWest Steel Pty Ltd.  He said he worked as a welder and he was paid slightly more for his services by this company.  He said he secured the job through friends.  He indicated to the Tribunal that he did not appreciate he was breaching a condition of his visa by working for Quantum International.  He said he needed an income to pay for his family’s living expenses, and also to financially support his parents in China, who at the time were also facing significant medical issues.  He said his logic was that he was working, so it was not the wrong thing to do.  He said if he knew then what he knows now, “no one could push me to breach”.

18. The Tribunal discussed with the applicant that there are strict requirements that attach to Subclass 457 visas, which are clearly set out in visa grant notifications. The Tribunal discussed with the applicant that the visa conditions would have been clearly set out in the visa grant notification the subject of this review as well as his previous Subclass 457 visa notification. The applicant told the Tribunal: “All I knew was that my visa was granted”.  He said he now understood that the onus was on him to familiarise himself with his visa conditions and that he had done the wrong thing.  He told the Tribunal that this was an oversight and that he had learned from this mistake.

19. The applicant told the Tribunal he recommenced working at MetWest Steel Pty Ltd in November 2016. He said he received a telephone call from his sponsor and was told he needed to return to work because the work load had started to increase.  He said he remained working full-time for MetWest Steel Pty Ltd from this time until his visa was cancelled in July 2018. He confirmed that if his visa was not cancelled, it would have ceased in March 2020.

20. The applicant told the Tribunal that he and his wife are not currently working.  He said he has not worked since his visa was cancelled in July 2018.  When asked how he was supporting himself, he told the Tribunal that he lives a very basic life and relies on loans from family and friends.  He said he has also relied upon the support of his brother, who is an Australian permanent resident.    

21. The applicant told the Tribunal that there had been implications for MetWest Steel Pty Ltd as a result of him taking leave and undertaking work for another employer.  He indicated to the Tribunal that he had heard that the Department had imposed a sponsorship bar on the company.

22. The applicant told the Tribunal that he wanted to remain in Australia to work, so that he can support his family and send money back to China.  He said his parents are ill with cancer and require money for treatment.  The Tribunal raised with the applicant its concern about the applicant’s stay in Australia not being consistent with the purpose of the Subclass 457 visa scheme.  The Tribunal discussed with the applicant that a Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal noted that the applicant had ceased working for his sponsor (and at all) in mid-2018, and had spent a significant amount of time living in Australia outside of the subclass 457 scheme, without the protections and obligations that it places on visa holders and sponsors. The applicant indicated he understood the purpose of the visa. He told the Tribunal that if his visa is reinstated, he will find another employer to work for.

23. The Tribunal asked the applicant if he or any of his family members would suffer hardship if the visa remained cancelled.  The applicant reiterated to the Tribunal that he is responsible for supporting his family, including his ailing parents.  He said he is concerned he will not be able to find work and make money in China, given that there is a lot of competition for jobs and because of his age.  The applicant also said that he is now used to living in Australia and unfamiliar with living in China, where it is fast-paced and polluted. He told the Tribunal that his wife’s rheumatoid arthritis would worsen if she returned to China.  He also told the Tribunal that he would like his daughter to return to Australia to complete further study.

24. The Tribunal explored with the applicant whether there was any reason why he and his wife could not return to China.  No matters not already mentioned were raised.  The applicant told the Tribunal that if he and his wife returned to China, they would live with his parents.

25. The Tribunal finds that the purpose of the applicant’s travel to and stay in Australia was to work in Australia.  However, the Tribunal finds that the purpose of working as a welder for the sponsor, MetWest Steel Pty Ltd, no longer exists as the applicant ceased working for the sponsor when his visa was cancelled in July 2018.  The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that the purpose of that visa is no longer being served by the applicant’s presence in Australia, and indeed has not been served for some time.  The Tribunal considers that this factor weighs in favour of cancelling the visa.

26. The Tribunal has had regard to the evidence before it as to the hardship that may be caused if the visa is cancelled.  On the evidence, the Tribunal has difficulty accepting that the applicant and his wife will face hardship outweighing their current circumstances if the visa remains cancelled.  In the Tribunal’s view, the applicant does have employment prospects in China given that he is a skilled worker, with significant experience as a welder in both China as well as Australia. The Tribunal does not accept that he will be unable to find work in China because of his age.  The Tribunal accepts that the applicant has obligations to his family, but it is unable to reconcile the hardship described in this regard against his evidence that he has not worked in Australia for well over 12 months, living on loans and support from family and friends.  

27. As to the applicant’s claim that the rheumatoid arthritis of his wife will worsen if she returns to China, the Tribunal, as discussed with the applicant at the hearing, observes that there is no medical evidence before it as to Mrs He’s condition, any ongoing care she requires, or the effect on her illness of returning to China.  

28. The Tribunal has considered the applicant’s evidence that he would have liked his daughter to return to Australia to study. It is the Tribunal’s view that there is nothing to prevent the applicant’s daughter, who has not been present in Australia for over two years, from making an application for a visa to enable her to study in Australia in the future, if that is what she would like to do.

29. The Tribunal accepts that the applicant and his wife have adapted to living in Australia and would prefer to stay here.  However, the Tribunal finds that the applicant held a temporary visa and therefore would not have had a real expectation that he would be able to remain in Australia on a permanent basis. 

30. The Tribunal does acknowledge that the cancellation of the applicant’s visa would be disappointing, and that there may be some financial and emotional consequences.  Accordingly, the Tribunal is willing to attribute some limited weight to this factor, which would weigh against the cancellation of the visa.  

31. The Tribunal has considered the circumstances in which the ground for cancellation arose. The Tribunal has found above that the applicant was not working only in the business of his sponsor or an entity associated with his sponsor between July and November 2016.  The Tribunal has considered the applicant’s oral evidence that he was told by his sponsor not to come to work because there was not enough work for him to do.  It has also had regard to his claims, outlined in the delegate’s decision, that he took leave from his sponsor because he started to suffer health-related problems as a result of excessive stress at this new work place, but because he still needed to earn an income to pay for medical and education expenses and to support his family, he worked for another company during this period. The Tribunal has concerns about the genuineness of the applicant’s claims, given the inconsistencies in his evidence to both the Department and the Tribunal.  It also has concerns, as discussed with the applicant during the hearing, that he did not complain about or seek advice or assistance in relation to the circumstances which led to him not complying with a condition of his visa.  The applicant told the Tribunal that he was unaware of the conditions attaching to his visa and he has ‘limited English’. However, the Tribunal is not persuaded by this response.  In the Tribunal’s view, the applicant, as the holder of the visa, had the responsibility to familiarise himself with the conditions of his visa and what these required him to do.  Ultimately, the responsibility for compliance with visa conditions lies with the visa holder.

32. Having regard to the applicant’s explanations and responses at hearing and the evidence provided, the Tribunal is not persuaded that the circumstances of the breach were beyond his control or that the circumstances indicate reasonable explanations for him working in a position, also as a welder, outside the business of his sponsor. The Tribunal gives this factor significant weight in favour of the cancellation of the visa.

33. The Tribunal considers that, other than the breach of visa condition 8107, there is no information before the Department which suggests that he has not complied with other conditions, and there is no information about his past and present behaviour towards the Department which would weigh against him.  However, the Tribunal does not find that either of these matters weigh against, or in favour, of the cancellation of the visa. 

1. The delegate’s decision records that Ms He will be subject to cancellation pursuant to s.140 of the Act if the applicant’s visa is cancelled.  The Tribunal notes that the visa of the applicant’s wife was granted on the basis of her being a member of his family unit and it is the intended consequence of the legislation that members of the same family have the same visa status. For these reasons, the Tribunal gives this consideration limited weight against the cancellation of the visa.

2. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.  The Tribunal gives these consequences some limited weight against the cancellation of the visa.

3. The Tribunal has carefully considered and weighed all of the relevant circumstances of the applicant in this case. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.

   DECISION

4. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

   Nicola Findson
   Member