ZHAN (Migration)

[2019] AATA 1602

ZHAN (Migration) [2019] AATA 1602 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shiwei ZHAN
Ms Minxi LIU
Ms Jie ZHAN

CASE NUMBER:  1729345

HOME AFFAIRS REFERENCE(S):           BCC2017/2812444

MEMBER:John Cipolla

DATE:16 January 2019

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 16 January 2019 at 1:02pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 – failed to commence employment with new sponsor within 90 days of arrival in Australia – failed to appear at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 348
Migration Regulations 1994 (Cth), 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 November 2017 made by a delegate of the Minister for Immigration and Border Protection 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(b) on the basis that the applicant failed to commence working for his sponsoring employer Quickway Constructions Pty Ltd. 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 applicant was invited appear before the Tribunal on 9 January 2019.  The day before the hearing on 8 January 2019 the Tribunal received a medical certificate from Dr Steven Zhang advising that the applicant was not able to ‘work’ from 8 January 2019 until 10 January 2019.  After receiving this certificate a Registry Officer contacted the applicant to ascertain whether he was able to participate in a hearing by telephone. The applicant e-mailed the Tribunal on 8 January to advise he was sick and that he was unable to attend the hearing and this was followed up in a telephone call on 9 January 2019.

5. In order to accommodate the applicant the hearing was re-scheduled for 16 January 2019 and the applicant was duly notified of the new hearing date.  The applicant failed to attend the re-scheduled hearing and no reason was provided by the applicant for his non-attendance. In these circumstances the Tribunal is able to proceed to decision

6. 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

7. 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(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?

8. 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 it is condition 8107(3)(aa) attached to the applicant’s visa. This condition requires that the applicant commence working with the sponsor, Quickway Constructions Pty Ltd within 90 days of his arrival in Australia.

9. The evidence before the Tribunal indicates that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa on 7 November 2017. Recourse to the NOICC indicates that the delegate had information before them that the applicant had not commenced working with his sponsor within 90 days of his arrival in Australia.

10. The applicant failed to respond to the NOICC.

11. On 16 November 2017 the Department of Immigration proceeded to cancel the applicant’s visa. As a consequence the secondary visa applicants’ visas were cancelled under Section 140 of the Migration Act.

12. 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)(aa) applies as the applicant did not commence work with his sponsoring employer within 90 days of his arrival in Australia.

13. There is no evidence before the Tribunal which would rebut the finding of the delegate that the applicant was in breach of condition 8107(3)(aa).  The evidence before the delegate, provided by the sponsoring employer, Quickway Constructions Pty Ltd, was that the applicant never commenced employment with them.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(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

15. 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’.

16. As has been noted above the applicant was issued with a NOICC dated 7 November 2017.  The NOICC indicated that the applicant entered Australia on 16 December 2015 and had been granted a Subclass 457 visa on 11 November 2015 to work for Quickway Constructions Pty Ltd.  The NOICC, as has been noted, indicates that the Department received written notification from the sponsoring employer that the applicant never commenced employment with the sponsor since their entry into Australia and indeed the evidence indicated that the applicant failed to commence work with the sponsoring employer within 90 consecutive days of his arrival in Australia. As has been noted the applicant failed to respond to the NOICC and the Department proceeded to cancel the applicant’s 457 visa in a decision made on 16 November 2017.

17. No additional information has been provided to the Tribunal at review.

    FINDINGS AND REASONS

18. The Tribunal has considered the evidence before it.  The Tribunal finds on the evidence before it that the applicant failed to commence work with his sponsoring employer within 90 days of his arrival in Australia.

19. The Tribunal finds that the applicant did not comply with condition 8107(3)(aa) that was imposed on his 457 visa. 

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 power to cancel the visa should be exercised.

    Consideration of discretion

21. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

22. The applicant was granted a Subclass 457 visa to work for his approved sponsor and this employment ceased on 11 November 2015.  The applicant arrived in Australia on 16 December 2015 and failed to commence work for his sponsoring employer within 90 days of his arrival.

23. The evidence before the Tribunal indicates that the applicant has not worked for an approved sponsor since his arrival in Australia. There is no evidence before the Tribunal that the applicant is the subject of an approved nomination.

24. The Tribunal gives weight to the above considerations in favour of cancelling the visa.

25. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. For the reasons discussed above, the Tribunal has found that the applicant breached condition 8107(3)(aa) of his visa as he failed to commence work for his sponsoring employer within 90 days of his arrival in Australia.

26. In relation to the applicant’s past and present conduct towards the Department, there is no evidence before the Tribunal to indicate that the applicant has not been cooperative in his dealings with the Department apart from his failure to notify the Department of his failure to commence work with his sponsoring employer.

27. The Tribunal finds that the applicant’s non-compliance with visa conditions weighs in favour of cancelling the visa. 

28. The Tribunal does not consider it the responsibility of the Department or any other authority to notify the applicant about his visa conditions, including the 90 days requirement. Indeed the notification of the grant of a 457 visa letter would have set out the conditions attached to the 457 visa, including condition 8107. Furthermore the Department provides an online facility (Visa Entitlement Verification Online – VEVO) for visa holders to check the status and conditions of their visas. The Tribunal considers it the applicant’s responsibility to be aware of his visa conditions and to comply with them.

29. The evidence indicates that the applicant failed to commence work for his sponsoring employer Quickway Constructions Pty Ltd.

30. The Tribunal gives little weight to the circumstances in which the ground of cancellation arose in favour of not cancelling the visa.

31. No evidence has been adduced which establishes the hardship that may be experienced if the applicant’s visa is cancelled.

32. The Tribunal has also had regard to the mandatory legal consequences of cancellation.  The Tribunal accepts that if the visa is cancelled the applicant will be affected by s.48 of the Act. He will not be able to apply for another Temporary Work Skilled visa (now the TSS visa) onshore, and will have limited options for applying for a valid visa in Australia, without the intervention of the Minister.

33. The Tribunal gives limited weight to the mandatory legal consequences of cancellation as they are the intended consequences of legislation.

34. In relation to consideration regarding international obligations, there is no evidence before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.

35. The Tribunal has weighed up all of the relevant circumstances in this case and considers that the circumstances in favour of cancelling the 457 visa outweigh those in favour of not cancelling the visa.

    CONCLUSION

36. In considering the circumstances as a whole, the Tribunal concludes that the applicant’s 457 visa should be cancelled.

    DECISION

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

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

    John Cipolla
    Senior Member