Zhang (Migration)

[2019] AATA 6632

Zhang (Migration) [2019] AATA 6632 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yuanmou Zhang
Mrs Shanhong Tan
Ms Qiao Zhang
Ms Shanshan Zhang

CASE NUMBER:  1714264

HOME AFFAIRS REFERENCE(S):          BCC2015/2765161

MEMBER:Michelle East

DATE:12 December 2019

PLACE OF DECISION:  Perth

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 12 December 2019 at 10:40am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – sponsor cancelled or barred under s 140M – consideration of discretion – unable to secure new nomination – intended only to fill shortages in the Australian labour market – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, 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 29 June 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(1)(g). The prescribed ground for cancellation is defined in Regulation 2.43(1)(l)(iv) of the Migration Regulations which states that the ‘sponsor has been cancelled or barred under section 140M of the Act. 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. A copy of the delegate’s decision was provided to the Tribunal together with the application for review.

5. The applicant appeared before the Tribunal on 10 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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(1)(g). 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)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(l)(iv) is relevant.

9. As outlined in the delegate’s decision, on 10 August 2015, a decision was made under section 140M(1)(a) of the Act to cancel the approval of the sponsor as a standard business sponsor. This nomination was approved on 29 August 2014 for the applicant’s sponsor, Global Fabricating Pty Ltd in respect of the applicant.

10. The Tribunal is satisfied that the prescribed ground for cancellation defined at Regulation 2.43(1)(i)(iv) exists because the sponsor has been barred or cancelled under section 140M of the Act. Therefore the ground for cancellation of the applicant’s visa is made out under section 116(1)(g).

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

12. 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 Procedural Instructions (previously known as PAM3) ‘General visa cancellation powers’.

13. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.  Specifically, the Courts have held that the Procedural Instructions constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.  Indeed, there is judicial authority to the effect that the policy guidelines in the Procedural Instructions cannot go beyond the wording of the legislation, even where they are favourable to an applicant.

14. Nevertheless, the Tribunal considers that the policy guidelines in the Procedural Instructions provide a useful starting point in respect of the exercise of its discretion.  In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    Purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia

15. As discussed with the applicant at the hearing, the subclass 457 ((Temporary Work) Skilled) visa is a temporary visa, the purpose of which is to work for a standard business sponsor in a position approved through the nomination process.  There is no other permitted purpose for holding a 457 visa.

16. The applicant was granted his 457 visa on 1 October 2014 on the basis of his sponsorship by Global Fabricating Pty Ltd. On 10 August 2015, the standard business sponsorship of his sponsor was cancelled under s140M of the Act.

17. On 20 April 2016, Sunrise Engineering Pty Ltd lodged a new nomination for sponsorship of the applicant.  On 18 May 2016, the applicant lodged a fresh application for a further 457 visa.  On 19 April 2017, Sunrise Engineering Pty Ltd was refused a sponsorship agreement and the nomination application was therefore refused.

18. The applicant’s evidence at the hearing was that he had not secured a new nomination since the application lodged by Sunrise Engineering Pty Ltd was unsuccessful.

19. The Tribunal asked the applicant how he had supported himself since ceasing work with his sponsor.  The applicant said he had borrowed money from some people who had worked with him as apprentices and he was lodging with a friend.  He said his wife was still here, however, his younger daughter who originally came to Australia with them returned to China after his visa was cancelled.  Both his daughters are living there with his mother and his brother supports them financially.

20. The applicant said he was led to believe by his sponsor that he could secure permanent residency after working in Australia for a few years.

21. The Tribunal acknowledges the evidence which indicates that the applicant’s employment ceased through no fault of his own.  The Tribunal also accepts based on the evidence provided to the delegate that he worked until January 2016.  Nearly 4 years has elapsed since that time.  The Tribunal notes that the applicant attempted to obtain a new sponsor shortly after ceasing work but was unsuccessful.

22. In the Tribunal’s view, the subclass 457 visa was a temporary visa the purpose of which is to enable Australian employers to fill skills shortages, and it is not a guaranteed pathway to permanent residence or long term temporary residence.  The Tribunal does not consider the wish of the applicant to remain here for a longer time or maybe permanently, to be a compelling reason not to cancel the applicant’s subclass 457 visa, given that it is a temporary visa at best, and is linked to him being successfully sponsored and nominated for employment by an Australian employer.

23. The applicant said it would be very difficult to him to return to China.  He said prior to moving to Australia he was working for a joint venture in China as a boilermaker.  He said he is trained in that work and has over 20 years’ experience working in the industry.  He said when the opportunity to move to Australia happened he borrowed $70,000 from friends in China.  He said he would be very embarrassed to return to China as he feels he would have let his friends down.

24. Even though the Tribunal acknowledges the applicant may face some social difficulty in relocating back to China, the Tribunal does not consider this to be a compelling reason not to cancel the applicant’s subclass 457 visa.

25. The Tribunal gives this factor weight in favour of its discretion to cancel the visa.

    Extent of the applicant’s compliance with visa conditions

26. There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of his 457 visa or current bridging visa.  The Tribunal considers this factor weighs in favour of its discretion to not cancel the visa.

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

27. The applicant indicated he would suffer some hardship if he had to leave Australia and return to China.

28. The applicant conceded in his oral evidence that he was trained as a boilermaker and should be able to find work in China in his industry.  He also stated that his two daughters live there with his mother.  He said he doesn’t own a house in China, however, he would live with his mother.  He said his wife is not working here and would return to China with him.

29. The applicant further said he took this opportunity to work in Australia because he thought he would be able to give his daughters a better education.  The Tribunal notes that his elder daughter is now at university and his younger daughter is still in primary school

30. The applicant said he would suffer some emotional hardship due to being unable to repay his debts to his friends in China from whom he borrowed prior to moving to Australia.  He said if he worked for ‘twenty years’ he would be unable to repay the money.

31. The Tribunal noted with the applicant that his oral evidence was that he owed approximately $50,000 to people here, money he’d borrowed to live whilst not working for the last 4 years.  The applicant agreed he owed money ‘everywhere’.

32. The Tribunal acknowledges that the applicant may suffer some emotional hardship if he had to depart Australia but does not consider that the degree of hardship that he would face would be insurmountable and is not satisfied that the applicant would not be able to find any employment or business opportunities in China.  The applicant agreed with this in his own oral evidence.

33. The Tribunal accepts the applicant’s younger daughter may benefit from an Australian education and that this may cause some hardship to her, the applicant and his wife.

34. Overall however, the Tribunal finds there is minimal hardship which may be caused by the cancellation of the visa.

35. The Tribunal finds this weighs in favour of its discretion to cancel the visa.

    Circumstances in which the cancellation arose.

36. The Tribunal acknowledges that the circumstances in which the grounds for cancellation arose were beyond the applicant’s control.

37. The Tribunal gives this some weight in favour of not cancelling the visa.

38. However, the Tribunal also notes that the applicant was able to secure a new sponsorship application fairly quickly (which was unfortunately unsuccessful) but from that time has not secured a new one.  Nearly 4 years have elapsed since he ceased working for his approved sponsor.  The Tribunal therefore considers that the applicant has had ample time within which to obtain a new sponsorship.

39. The Tribunal gives greater weight to this in considering its discretion to cancel the visa.

    Past and present conduct by the applicant towards the Department

40. The Tribunal acknowledges that the applicant has been co-operative in his dealings with the Department and gives this some weight in favour of its discretion to not cancel the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the applicant becoming unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

41. The Tribunal accepts that cancellation of a visa would normally result in a person becoming unlawful and subject to detention however the Tribunal is satisfied that the applicant has applied for, and been granted, a bridging visa which is valid until the outcome of the Tribunal’s review.  Accordingly, the Tribunal notes that a bridging visa would continue to be available to the applicant if he needs to make arrangements to depart or to lodge a judicial review application in the event that this review is unsuccessful.

42. The Tribunal accepts that if the visa cancellation is affirmed, the applicant will be subject to s.48 of the Act which may limit future onshore applications.  However, these are the intended legislative consequences of cancellation and they are consistent with the objectives of the migration program.

43. Accordingly the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

44. The Tribunal gives this some weight in favour of its discretion to cancel the visa.

    Whether there would be consequential cancellations under s.140 of the Act

45. The Tribunal accepts that the cancellation will result in the cancellation of his wife’s and children’s visa. 

    The Tribunal notes however that the children currently reside in China.  The older daughter remained in China with the applicant’s mother and the younger daughter lived here for approximately one year before also returning to China to live with the applicant’s mother.  The applicant confirmed that his wife would also return to China with him.

46. The Tribunal notes the consequential cancellations, however, finds this would be of minimal impact to the secondary visa applicants.  The Tribunal gives this some weight in favour of its discretion to cancel the visa.

    Whether any international obligations would be breached as a result of the cancellation

47. The applicant did not raise any international obligations that he believed would be breached as the result of the cancellation and there is nothing before the Tribunal to indicate that cancellation would result in Australia breaching any of its international obligations.

    Any other relevant matter

48. The Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is a temporary stay and as such, comes to an end.  The natural consequence of a temporary stay is departure from Australia.

49. The Tribunal notes from the delegate’s decision that the applicants’ 457 visa would have expired already without the cancellation.  Re-instating the visa would not serve any practical purpose as the applicant is without a nomination for a new sub-class 482 visa (which replaced the old 457 visa).  These visas are intended only to fill shortages in the Australian labour market, for which approved sponsorship and nomination by an Australian employer is required.  The Tribunal gives this significant weight in favour of exercising its discretion to cancel the visa.

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

    DECISION

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

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

    Michelle East
    Member