ZHANG (Migration)

[2017] AATA 112

ZHANG (Migration) [2017] AATA 112 (16 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr XIN ZHANG

CASE NUMBER:  1601363

DIBP REFERENCE(S):  BCC2015/3724935

MEMBER:Adrian Ho

DATE:16 January 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 16 January 2017 at 3:49pm

CATCHWORDS

Migration – Cancellation – (Temporary Work (Skilled)) visa – Subclass 457 – Ceased employment exceeding 90 consecutive days – Unlawful dismissal – No approved nomination – Remained unlawfully in Australia

LEGISLATION

Migration Act 1958, ss 116, 48

Migration Regulations 1994, Condition 8107, PIC 4014

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 February 2016 made by a delegate of the Minister for Immigration 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 for breach of condition 8107. 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 appeared before the Tribunal on 12 January 2017 to give evidence and present arguments.

4. 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

5. 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. This condition applies specifically to the holders or former holders of Subclass 457 work visas. It requires, among other things, that if the applicant ceases employment – the period during which the applicant ceases employment does not exceed 90 consecutive days.

6. In his written submission to the tribunal (f.25), the applicant indicates and the tribunal accepts that:

   a.The applicant held a 457 visa and was sponsored by Altius Mining Ltd (the sponsor) in the position of project coordinator (f.81);

   b.The sponsor advised the Department that the employment was terminated effective 21 May 2015 (f.25);

   c.The date of the termination letter was 28 May 2015 (f.25);

   d.The applicant disputes that he has been lawfully terminated, and argues that his dismissal was unfair and unlawful and has complained to Fair Work Australia;

   e.The applicant argues that the contract of employment has not properly been terminated and therefore he should not be regarded as having ceased employment under condition 8107 (f.25);

   f.The applicant has been seeking a new sponsor and new employment, as well as exploring points-tested migration.

7. At hearing the applicant said the sponsor had financial problems and told him and numerous other employees to take their leave.  He said, along with himself, a number of employees were let off and the company had more than ten 457 visa-holders working for it.

8. At hearing the applicant said he missed a deadline in the Fair Work Australia unfair dismissal process and the applicant’s complaint was closed around mid-2016.

9. At hearing it was suggested to the applicant that whether or not the termination of his employment was lawful or otherwise, the actions of the employer in seeking to end his employment, and effectively end its sponsorship of him, led to a cessation of employment around 28 May 2015, and that cessation might be sufficient to engage Condition 8107(3)(b).

10. The applicant responded by saying the sponsor was a public company and the termination was not properly executed – which was also the thrust of his written submission (f.25).

11. As suggested, a reading of condition 8107 does not reveal that the condition requires an enquiry into whether a cessation of employment leading from termination, was as a result of a termination lawfully executed or otherwise.

12. As suggested, if the applicant’s termination were unlawful, he may or may not have some redress under laws outside of the migration context; however, the focus of condition 8107 within the context of the 457 visa program is to ask whether the employment which is the subject of the approved nomination is in place, or whether it has ceased for more than 90 consecutive days. 

13. If it has ceased for more than 90 consecutive days for any reason, the basis of the approval of the nomination and the grant of the visa is absented, and the ground for cancellation is made out. 

14. Condition 8107 does not direct overt attention to why the employment ceased.

15. As suggested, the applicant’s employment with the sponsor ceased in mid-2015.

16. By the time the Department cancelled the visa in Feburary 2016, that employment had ceased for far more than 90 consecutive days.

17. For these reasons, the Tribunal is satisfied that the applicant has breached condition 8107 and 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

18. 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’.

19. The applicant said he stopped going to work when the termination attempt was made by his sponsor.

20. He said since that time in mid-2015, he has been focused on skilled migration by studying to sit English tests. 

21. He said he had no particular issue with returning to Guangzhou, China, but felt his work experience was more suited to the Australian market.

22. He said he had also been seeking a new sponsor but did not have work rights and sponsors ordinarily wanted him to work on a probationary basis before deciding whether to sponsor him and no sponsor has applied for a nomination for him.

23. While he indicated in writing he was negotiating with a new employer (f.24) he conceded at hearing that he had not secured a new sponsor and no nomination application had been made identifying him.

24. As suggested to the applicant at hearing, and based on the evidence before the tribunal, the tribunal finds:

    a.That the purpose of the applicant’s stay in Australia on a Subclass 457 visa was to work for the applicant’s sponsor or another standard business sponsor in a position approved through the nomination process for which the applicant had the necessary acumen;

    b.There is no other permitted purpose in holding a 457 visa;

    c.That employment has ceased, and there is no position approved through the nomination process for the applicant based on which the applicant would now meet the criteria for a Subclass 457 visa;

    d.As the applicant is not the subject of a relevant approved nomination, were the visa reinstated, the applicant would be in breach of condition 8107 and the applicant’s visa would in short time again be rendered subject to cancellation under s.116(1)(b);

    e.The past conduct of the applicant with the Department has been cooperative;

    f.The tribunal acknowledges that after living in Australia the applicant may find it difficult in the event that departure from Australia is the result of cancellation;

    g.The tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end.  The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa, and by other family members of that person;

    h.In this case the applicant, and other members of the applicant’s family, have had a long duration in which to prepare for the potential of departure from Australia;

    i.Alternatively, the applicant has had ample time in which to seek an alternative lawful basis for further stay in Australia;

    j.Permanent residence or prolonged further stay should not be expected by a holder of a temporary visa;

    k.On the evidence, the applicant has had sufficient time to make arrangements to depart Australia, or alternatively, the applicant has had sufficient time to seek a new sponsor and an approved nomination, or an alternative basis for lawful stay in Australia;

    l.The holder of a temporary visa should anticipate a return to their home country, along with all of the various attendant consequences of such a return anticipated by the applicant; for example, the greater difficulty in earning an income outside Australia;

    m.The applicant does not hold a bridging visa A or B and, if he departs Australia, will likely be caught by PIC 4014 which will effectively impose a ‘3-year ban’ on the applicant being granted a further 457 visa;

    n.As was put at hearing, PIC 4014 is engaged principally because when the Department notified the applicant it was considering cancellation, the applicant, instead of departing on the substantive 457 visa, decided to remain in Australia, despite being in breach of condition 8107;

    o.The applicant had a choice when the Department’s intention to cancel the visa was notified: the applicant, if agreeing that continued stay onshore on the visa was in breach of a visa condition, could elect to depart on the substantive visa, in which case PIC 4014 would not be engaged;

    p.Or the applicant could remain in Australia and risk that the visa would be cancelled, after which it would be highly likely that PIC 4014 would be engaged;

    q.A choice to remain onshore while being in breach of a visa condition is a choice to accept the consequences of potential cancellation while onshore, notwithstanding that the applicant might be ignorant of the law;

    r.The law provides for robust consequences if a visa is lawfully cancelled to reflect that remaining onshore in persistent breach of a visa condition is not to be encouraged and the tribunal considers that the avoidance of those robust consequences, provided for by the law, is not a reason to decide that the visa should not be cancelled;

    s.While the applicant may be barred by s.48 from seeking a further 457 visa while remaining onshore, if the applicant leaves Australia as a result of cancellation of the visa, and a relevant nomination is in fact approved, the applicant may apply for and be granted another 457 visa offshore, after any period engaged under PIC 4014 has transpired;

    t.Similarly, the applicant can apply for the 189 visa offshore in the event that he had to depart (his evidence was that he did not yet have sufficient points on the ‘point test’ to qualify for the 189 visa); and

    u.cancellation of the visa will not result in Australia being in breach of its international obligations.

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

    DECISION

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

    Adrian Ho
    Member