ZHANG (Migration)

[2018] AATA 4995

ZHANG (Migration) [2018] AATA 4995 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhenggui ZHANG

CASE NUMBER:  1715427

HOME AFFAIRS REFERENCE(S):           BCC2017/1520939

MEMBER:John Cipolla

DATE:25 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 25 October 2018 at 9:54am

CATCHWORDS

MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased working in nominated occupation – compelling circumstances – age of parents – child in college – sole income earner of family – intention to make fair work claim – inability to secure new nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 June 2017 made by a delegate of the Minister for Immigration and Border Protection 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 the applicant did not comply with condition 8107(3) of his Subclass 457 visa because the applicant ceased to work in his nominated occupation in his most recently approved nomination. The delegate noted that the standard business sponsor who nominated the applicant in his most recently approved nomination for the visa was Max Construction (Australia) Pty Ltd. The Department had information before them that indicated that the applicant ceased work with the sponsoring business on or before 31 March 2016. The delegate based on this concluded that the applicant ceased employment with the sponsoring business and that the period during which the holder ceased employment exceeded 90 consecutive days.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. Recourse to the Departmental file indicates as follows. 

5. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 6 June 2017.  The NOICC indicated that the applicant had ceased working for his sponsoring employer effective 31 March 2016 and consequently he was in breach of condition 8107 attached to his Subclass 457 visa.

6. The applicant was invited to respond to the NOICC.  The applicant was invited to provide evidence to the Department as to whether or not he agreed that the ground for cancellation existed and whether or not his visa should be cancelled.

7. The Department of Immigration proceeded to cancel the applicant’s subclass 457 visa in a decision made on 28 June 2017. The delegate in the decision record noted that the ground for cancellation appeared to exist on the basis that the applicant had ceased employment with his sponsoring employer Max Construction (Australia) Pty Ltd with effect from 31 March 2016 and that the period during which the applicant ceased employment exceeded 90 consecutive days. The delegate concluded the reasons for not cancelling the visa were not outweighed by the grounds for cancelling the visa.

8. The applicant made an application for merits review with the Tribunal on 17 July 2017. The applicant annexed a copy of the Departmental cancellation decision to the application for review.

9. On 26 June 2018 the Tribunal wrote to the applicant inviting the applicant to comment on information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. The letter noted that the applicant was granted a Subclass 457 visa on 1 October 2014 which was valid to 1 October 2018 to work for a sponsoring employer, Max Construction (Australia) Pty Ltd.  The letter noted that the applicant ceased working for the sponsor on 31 March 2016 and that as at the date of the cancellation of his visa, 28 June 2017, he had not worked for his sponsor for more than 90 consecutive days. The letter invited the applicant to provide evidence as to whether or not he agreed that the grounds for cancellation of his visa existed and to provide any evidence as to whether or not his visa should be cancelled. A response to this letter was due on 10 July 2018.

10. On 10 July 2018 the applicant’s representative wrote to the Tribunal seeking a request for an extension of time to respond to the Tribunal’s letter of 26 June 2018. The Tribunal agreed to the extension of time for the provision of information to 24 July 2018.

11. On 24 July 2018 the Tribunal received a response from the applicant’s migration agent. The response noted that the applicant did not deliberately breach condition 8107. The response noted that the applicant commenced employment with Max Construction (Australia) Pty Ltd after he arrived in Australia but that in October 2015 the applicant and other colleagues were advised by the Director of the business that they needed to attend a number of worksites in Sydney. The applicant provided a bank statement showing various payments from the employer during for the period April to October 2016. The submission notes that the applicant, upon cessation of employment with Max Construction (Australia) Pty Ltd, started to look for a new sponsor and notify the Department about the cessation of his employment on 21 April 2017. The submission noted that the applicant became the subject of a new sponsorship but the associated nomination was not approved. The submission noted that there were compelling reasons for not cancelling the visa. The submission noted that the applicant’s parents were both over the age of 70, that he had a child starting in college and that his family relied on him for living support.

12. The Tribunal scheduled a hearing for 9 October 2018. The applicant was duly notified of the review hearing. On 25 September 2018 the Tribunal was advised by the applicant’s representative that they would be travelling overseas in early October and would return to Sydney on 11 October 2018. The applicant’s representative sought the postponement of the hearing to 12 October or later. On 2 October 2018 the Tribunal wrote to the applicant’s representative advising that it had considered the request to postpone the hearing of 9 October 2018 but had decided that the hearing would proceed as planned and that the applicant’s representative would have until close of business on Monday, 15 October to provide any post hearing submissions.

13. The applicant failed to attend the scheduled hearing on 9 October 2018 and no reason for his non-attendance was provided to the Tribunal. In these circumstances the Tribunal is able to proceed to decision on the basis of the evidence before it. As the Tribunal had advised the applicant’s representative that it would await further submissions until close of business 15 October 2018 the Tribunal did not proceed to decision until after that date.

14. The Tribunal received a submission from the applicant’s representative on 16 October 2018. The applicant’s representative asked the Tribunal to consider the financial hardship component on the basis that the applicant had been unemployed since his 457 visa cancellation and this had impacted upon his family’s financial situation as he was the sole income earner for the family. The submission noted that the applicant was considering taking a fair work claim against his former employer and sponsor. The submission noted that the applicant had been approached by a number of prospective employers who were willing to sponsor him and that once he regularised his visa status he would sign a new employment contract and lodge a new sponsorship/nomination. No evidence to corroborate these assertions was provided to the Tribunal.

    Does the ground for cancellation exist?

15. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. Of relevance in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.

16. The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 1 October 2014 on the basis of a nomination by Max Construction (Australia) Pty Ltd (the sponsor). The sponsor advised the Department that the applicant ceased employment with them effective 31 March 2016. The applicant in a submission provided by his employer asserts that he continued to work for the sponsor until October 2016.

17. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment and has not done so since the cessation of his employment in March 2016 as claimed by the sponsor or October 2016 as claimed by the applicant.  On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b). 

18. 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

19. 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’.

20. The Tribunal has first considered the purpose of the applicant’s travel to and stay in Australia. The evidence before the Tribunal indicates that the purpose of the applicant’s travel to and stay in Australia was to engage in temporary employment for an Australian business Max Construction (Australia) Pty Ltd as a bricklayer from 1 October 2014 until 1 October 2018. The evidence indicates that the applicant worked for the sponsoring employer from October 2014 but that he ceased working for the sponsoring employer between March and October 2016 and that since that time he has not become the subject of an approved sponsorship/nomination.

21. The purpose of the 457 visa is for an applicant to work on a temporary basis (usually for 4 years) for an approved sponsor in an approved occupation and that since ceasing employment with Max Construction (Australia) Pty Ltd between March and October 2016, the applicant has not been able to secure another nomination.  The Tribunal notes that the objectives of the Temporary Skilled Migration program was to fill skills shortages as listed on the skilled occupation list and that if an applicant had been unable to secure an approved nomination then this meant the applicant was not able to fulfil the purpose of the 457 visa and this weighs strongly in favour of cancelling the visa.

22. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted his most recent 457 visa was to work in the occupation of Bricklayer for Max Construction (Australia) Pty Ltd, that purpose ended on 31 March 2016 (based on the sponsors notification) or October 2016 (based on the applicants assertions) when the applicant ceased working for that company. The evidence indicates that the applicant has not been able to find another sponsor.  It has now been over 2 years since the applicant ceased working for his approved sponsor and to date the applicant has not been able to secure another approved nomination under the 457 visa programme.

23. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for his approved sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa. 

24. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(b) the applicant has complied with visa conditions. The Tribunal notes that the applicant claims that he has not worked since his visa was cancelled in June 2017 and the applicant despite claiming financial insecurity has not provided evidence of how he has managed to survive since that cancellation took place.

25. The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose 90 days consecutive after the applicant ceased employment with the sponsor as he was unable to secure another nomination within the 90 day period. The Tribunal notes the applicant’s assertions that he has made efforts to secure another nomination, but no evidence corroborative of this has been provided to the Tribunal.  The Tribunal finds that these circumstances weigh in favour of cancelling the applicant’s visa.

26. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled.  The applicant claims that he is the sole income earner for his family unit but corroborative evidence pertaining to claimed financial hardship has not been provided.

27. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if he does not continue to hold visas to remain lawfully in Australia or refuse to depart voluntarily. The applicant will not have to immediately depart Australia if the visa is cancelled and can apply for further Bridging E visas. If the visa is cancelled the applicant will be affected by s.48 of the Act and will have limited options for applying for substantive visas onshore without the intervention of the Minister.

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

29. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant on the basis of the evidence before it has generally complied with visa conditions. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor 24 months ago. As indicated above, the applicant can, should he wish to do so, make an application offshore for a Subclass 482 visa should a nomination in relation to him be approved in future.

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

    DECISION

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

    John Cipolla
    Senior Member