Zeng (Migration)

[2021] AATA 560

Zeng (Migration) [2021] AATA 560 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Lin Zeng
Mr Heyong Xu
Master Jingyu Xu

CASE NUMBER:  2012132

HOME AFFAIRS REFERENCE(S):          BCC2020/605692

MEMBER:Michael Cooke

DATE:3 March 2021

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 other applicants.

Statement made on 03 March 2021 at 12:15pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Baker – ground for cancellation – ceased employment with sponsor – consideration of discretion – unable to secure a new nomination – underpayment of wages – pending complaint with Fair Work Australia (FWA) – best interest of the child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
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 24 July 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107 attached to her visa. The applicant had ceased working with her approved nominator and this appeared to indicate the visa holder had not complied with condition 8107(3)(b) because the period during which the visa holder 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. 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.

4. The primary applicant appeared before the Tribunal on 9 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Pi Lin Zhou, who is the applicant’s work colleague. 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 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.

   The Hearing

7. The applicant alleged in oral evidence that her previous nominator employer was underpaying her in breach of the employer’s obligations. She provided evidence of this to the Tribunal. The Tribunal informed her it had received various pictures of what appeared to be handwritten pay slips from her which were not very informative without further explanation. She said was so disgusted with her employer’s behaviour that she decided to quit. She then lodged a formal complaint with Fair Work Australia (FWA) regarding her employer. She had been in communication with FWA and had sent the Tribunal a document to that effect.

8. The Tribunal asked her why she had not progressed a new Temporary Skill Shortage or Labour Agreement nomination application approval in relation to any other sponsor with the Department. She seemed gobsmacked by the question. In response said she has spent all the time progressing her claim with Fair Work Australia. It appeared to the Tribunal from her response that she was totally unaware of the need to find a new approved nominator and to be the subject of an approved nomination. The Tribunal asked her who had facilitated her initial visa application. She said it had all been done by an agent in China with probably the involvement of an Australian based agent - she opined.

9. The Tribunal suggested to her that, with the complexity of her case, she should have engaged the services of a registered migration agent. Instead it seemed that, somehow, she had convinced herself that her complaint to Fair Work Australia would result in the overturning of her cancellation. The Tribunal suggested she was ignorant of the migration law and it might be advisable in such circumstances to avail herself of professional migration advice.

10. The Tribunal suggested that her allegations regarding her former employer and her formal Fair Work complaint could indicate that her breach of condition was “beyond her control” but the Tribunal required more evidence including information from Fair Work Australia. The Tribunal noted that, for instance, she had not responded to the delegate’s NOICC. She had not issued the Tribunal with any submission in response to the cancellation decision by the delegate.

11. The Tribunal asked her if she had a Bridging visa E and permission to work. She said that she did. She was working at a restaurant in Castle Hill and lived at Epping.

12. The Tribunal asked the applicant whether her employer was willing to sponsor/nominate her for a new visa. She indicated that she did not know. She observed that due to COVID19 the business had not been trading as robustly as previously.

13. Her witness Mr Zhou concurred with her claim. Her wished to see her win her case.

14. The Tribunal explained that making a new visa application was something an employer had to contemplate. As there would be attached expense, they would probably have to employ a registered migration agent to assist with the application. Not every employer wished to go down that path. The applicant would also possibly require migration assistance herself.

15. The Tribunal, in view of her allegations and FWA complaint decided to allow the applicant further time to speak to her employer regarding the potential lodgement of a new sponsorship and nomination. The Tribunal requested her to then inform it of the outcome of her enquiries.

    Does the ground for cancellation exist?

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

    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) was attached to the applicant’s visa. This condition requires

    (3)

    If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):

    (b)

    if the holder ceases employment - the period during which the holder ceases employment must not exceed 60 consecutive days.

16. The Tribunal has carefully considered the relevant information available before it (from the written and oral evidence) and is satisfied that the applicant has not been employed since January 2020.

17. Therefore, as the period of cessation of employment has exceeded 60 days and the applicant has not had an approved nomination in place, the Tribunal is satisfied grounds exist under s116(1)(b) of the Act for cancellation as she has not complied with condition 8107(3)(b) attached to her visa. 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

18. 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:

19. The applicant was granted the Temporary Work (Skilled) (subclass 457) visa on 6 December 2016 for the purpose of undertaking employment in the nominated occupation - Baker (ANZSCO - 351111) and with the approved sponsor being MACARTH HOLDINGS PTY LTD. The Department was notified of her cessation of employment with the sponsor which was effective from 13 January 2020. Since then, and despite a further opportunity, there has been no new nomination lodged on her behalf. As such, the applicant has not had a new approved nomination in place and has not worked in the nominated occupation for a period of over 12 months.

20. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

    ·the extent of compliance with visa conditions

21. The applicant’s visa was granted subject to condition 8107. She has not had an approved nomination since her employment ceased with her sponsor on 13 January 2020, a period of over 12 months. There is no information to indicate that she has been non-compliant with any other visa condition on her Bridging visa E.

22. The Tribunal gives this consideration some weight in favour of cancelling the visa.

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

23. The applicant did not respond to the Departmental NOICC to provide any information relevant to this consideration. She indicated to the Tribunal that she is not represented by a migration agent. In oral evidence she indicated that she did not wish to return to China and wished to continue working in Australia.

24. The Tribunal acknowledges the cancellation of the applicant’s visa may result in her and her family experiencing a degree of psychological, emotional, financial and/or other hardship. Furthermore, she and her family may have difficulty returning to their home country or a third country due to the current COVID19 situation. However, she has successfully applied for a Bridging Visa E to enable them to remain in Australia until the conclusion of the Tribunal review. The applicant has been eligible to work for any employer, whether the employer is an approved sponsor or not, in any occupation, in order to alleviate her financial hardship. She has secured employment in the interim. Furthermore, several other contingency options for applicants impacted by COVID-19 have been put in place by the Government.

25. Therefore, the Tribunal gives this consideration some weight against cancelling the applicant’s visa.

    ·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

26. The circumstances which led to the grounds for cancellation were (in January 2020) the applicant’s deliberate cessation of employment with her nominated sponsor. She has indicated her decision was forced on her by her nominating employer’s failure to pay her the agreed wages. She has appealed to FWA and they have opened an investigation of her claim - which is yet to be resolved.

27. The Tribunal finds that she has not had a new nomination approved in relation to an alternative sponsor within 60 consecutive days. The Tribunal has given the applicant a further opportunity to approach her employer or others to seek a new sponsorship. This opportunity has proved fruitless. The applicant claims that COVID19 is the reason. The Tribunal acknowledges that COVID19 has impacted on temporary employment and gives this consideration some weight under these circumstances

28. The Tribunal gives this consideration significanbt weight in favour of cancelling the visa.

    ·past and present behaviour of the applicant towards the Department

29. There is no evidence to suggest the applicant has been uncooperative with the Department or with Departmental staff.

30. The Tribunal gives this consideration some weight against cancelling the visa holder’s visa.

    ·whether there would be consequential cancellations under s.140

31. Information available to the Department indicated that the applicant has two dependant applicants whose visas would be cancelled as a consequence of the visa cancellation:

    ·    XU, Heyong (18/01/1978, M) – CID 76258446517

    ·    XU, Jingyu (26/10/2006, F) – CID 84618447584

32. The Tribunal gives this consideration some weight against cancelling the applicant’s visa.

    ·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

33. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if the visa holder does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which would cause her to have limited options when applying for further visas while in Australia. However, the Tribunal is aware that cancellation under these grounds does not cause the applicant to be affected by the Public Interest Criterion 4013 risk factor and, therefore, she will not face an exclusion period as a result of this cancellation.

34. The Tribunal gives this consideration some weight against cancelling the visa.

    ·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].)

35. The Tribunal finds that as a signatory of the UN’s Convention of the Rights of the Child (CRC), Australia has an obligation to put the best interest of the child into consideration while making a decision related to the family unit. Regarding this cancellation, this obligation does not preclude cancellation of a visa but requires the Tribunal to turn their mind to the consequences of the cancellation and specifically whether a child will be separated from the family unit.

36. There is no information before the Tribunal to suggest that the visa cancellation will lead to a breach of Australia’s obligations as the primary applicant’s child’s visa would be cancelled as a consequence of the primary applicant’s visa cancellation. The family would, therefore, be required to depart Australia together.

37. The Tribunal finds that the circumstances of this case would not engage Australia’s international obligations and the cancellation of the visa would not lead to a breach of Australia’s international obligations.

38. The Tribunal gives this consideration some weight in favour of cancellation.

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

39. Not applicable.

    ·any other relevant matters

40. The Tribunal became aware from oral evidence that another relevant matter, which is the applicant’s Fair Work Australia complaint. Further evidence presented by the applicant has indicated that the complaint is now subject of a full (uncompleted) investigation. Nevertheless, irrespective of any claimed breach of sponsorship obligations by the sponsor, the Tribunal has provided the applicant with additional time to find a new sponsor. Her existing employer appears unwilling to sponsor her. She had not indicated a proposed sponsor when allowed further time to find one. She says she requires additional time due to the impact of COVID19 on employment. However, over 12 months have passed since she quit her job with her nominating employer. The Tribunal is satisfied that she has had ample time to find a new sponsor. Several other contingency options for applicants impacted by COVID-19 have been put in place by the Government.

41. The Tribunal gives this consideration significant weight in favour of cancellation.

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

    DECISION

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

44. The Tribunal has no jurisdiction with respect to the other applicants.

    Michael Cooke
    Senior Member