Zhang (Migration)

[2020] AATA 5725

Zhang (Migration) [2020] AATA 5725 (8 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Qiyang Zhang

CASE NUMBER:  2013934

HOME AFFAIRS REFERENCE(S):          BCC2020/1138091

MEMBER:Andrew McLean Williams

DATE:8 December 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 08 December 2020 at 1:42pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 60 days – sponsoring business de-registered – no termination notice – purpose of employment in the nominated position no longer exists – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 September 2020 made by a delegate of the Minister for Home Affairs 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 had not complied with subclause 3(b) of condition 8107 attached to her visa, which requires that the visa holder not cease employment with her nominated employer for any period exceeding 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. The matter was scheduled for hearing before the Tribunal on 8 December 2020.  However the applicant did not respond to the Tribunal’s hearing invitation, and did not otherwise appear before the Tribunal at the time and date of the scheduled hearing.  Accordingly, this matter has proceeded as a hearing on-the-papers.

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. Under s.116 of the Act, the Minister may cancel a visa if 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.

   Does the ground for cancellation exist?

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

6. 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 3(b) of condition 8107 attaches to the applicant’s Temporary Work (Skilled) (subclass 457) visa. This condition requires that the applicant not cease employment with her nominated employer for any period exceeding 60 consecutive days.

7. On 4 March 2020, the applicant’s employer ‘Successful Administration Services Pty Ltd’ contacted the Department and informed that the applicant had ceased employment on 24 February 2020.  That company has since been de-registered. 

8. On 24 June 2020 the Department sent the applicant notice of an intention to consider cancellation of her visa (NOICC).  In a response received by the Department on 29 June 2020 the applicant contended that:

   -She had not ceased her employment, but rather that she had been stood down;

   -She had not submitted a letter of resignation; and

   -She had not received proper termination notice from her employer.

9. Ultimately, the Tribunal is unpersuaded by the applicant’s contention that her employment has not ceased, but rather has only been temporarily suspended, at the instigation of her employer.  Those arguments hold no persuasive force in circumstances wherein the sponsoring employer has informed the Department that the applicant is no longer employed by them, and in circumstances wherein the employing company has altogether ceased to exist as a legal entity.

10. 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

11. 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’.

12. In relation to these discretionary matters the Tribunal observes:

    -the sole purpose of the applicant’s travel and stay in Australia was in order to take up employment in the nominated position.  That purpose no longer exists, such that the purpose of the visa is no longer an operative consideration.  This is a factor in favour of visa cancellation.

    -Although there is no suggestion of the applicant having failed to comply with her other visa conditions, the applicant has failed to comply with condition 8107(3)(b).  This is a factor in favour of visa cancellation.

    -The applicant has not identified any specific factors of hardship that will arise if her visa is now cancelled.

    -Although the circumstances in which the ground for cancellation arose were beyond the visa holder’s control, the available information reveals that the applicant was aware that her employment was ceasing, and no efforts have been made by her to find an alternate nominating sponsor within 60 days.

    -There is no evidence to suggest that the applicant has been uncooperative with the department.

    -There is no evidence before the Tribunal in relation to consequential cancellations under s.140.

    -Cancellation of the visa will result in the applicant becoming an unlawful non-citizen who may become liable to detention and removal, however no future exclusion period will arise under public interest criterion 4013.

    -The circumstances of this case do not engage any international obligations, that would be breached as a result of the visa cancellation

    -There are no other discernible relevant matters.

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

    DECISION

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

    Andrew McLean Williams
    Member