Zhou (Migration) - [2017] AATA 559

Zhou (Migration) [2017] AATA 559 (3 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Siyuan Zhou
CASE NUMBER:  1603187
DIBP REFERENCE(S):  BCC2015/2395357
MEMBER:L. Hawas
DATE:3 April 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 03 April 2017 at 11:49am
CATCHWORDS
Migration – Cancellation – Temporary work (skilled)) visa – Subclass 457 – Ceased employment exceeding 90 consecutive days – Transferred sponsorship to second company – Allegation of unscrupulous conduct – Termination – Exercise of discretion

LEGISLATION

Convention on the Rights of the Child
International Covenant on Civil and Political Rights
Migration Act 1958, s 116,

Migration Regulations 1994, Condition 8107, Public Interest Criteria 4013, Public Interest Criteria 4014
Refugees Convention
Refugees Protocol
CASES

Re Drake (No. 2) (1979) 2 ALD 634
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459

STATEMENT OF DECISION AND REASONS
Introduction

By this application, the applicant seeks the review of a decision made by a delegate of the Minister for Immigration on 26 February 2016 to cancel the applicant’s subclass 457 (temporary work (skilled)) visa under s.116 of the Migration Act 1958 (Act).
The applicant’s visa was subject to condition 8107(3)(b), which provided that if he ceases employment with his nominated employer, the period during which he ceases employment must not exceed 90 consecutive days. The delegate cancelled the applicant’s visa under s.116(1)(b) of the Act because he breached condition 8107(3)(b) by ceasing employment with his nominated employer for more than 90 consecutive days. In this review, the Tribunal must determine whether that ground for cancellation is made out, and if so, whether as a matter of discretion the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
The evidence before the Tribunal
The delegate’s decision record, which the applicant gave to the Tribunal in the review, recorded the following:
(a)On 26 March 2012, the applicant was granted a temporary business entry (class UC), temporary work (skilled) (subclass 457) visa, which was to remain current for four years until 26 March 2016;
(b)The standard business sponsor who initially sponsored the applicant for his 457 visa was ‘Gold Leaf Restaurant’ (Gold Leaf). The applicant ceased employment with Gold Leaf on 11 August 2013. On 14 November 2013, an application by Golden Fire Charm Pty Ltd (Golden Fire) to sponsor the applicant for a 457 visa was approved;
(c)By notice of intention to cancel the applicant’s visa dated 14 September 2015, the department notified the applicant that on 21 July 2014 Golden Fire informed it that the applicant had ceased employment with Golden Fire. The notice stated that the applicant had apparently breached condition 8107(3)(b) of his visa, and it invited the applicant to respond;
(d)The applicant responded to the notice by an undated letter, which the department received on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zhou (Migration)

Details

AGLC: Zhou (Migration) [2017] AATA 559
Case: [2017] AATA 559
Decision Date: 3 April 2017

CaseChat Overview and Summary

This matter concerned the review of a decision by the Department of Immigration and Border Protection to cancel the applicant's subclass 457 (temporary work (skilled)) visa. The applicant, Mr. Zhou, had been granted the visa on 26 March 2012, sponsored by Gold Leaf Restaurant. He ceased employment with Gold Leaf on 11 August 2013 and subsequently transferred his sponsorship to Golden Fire Pty Ltd. The Department notified Mr. Zhou of its intention to cancel his visa on 14 September 2015, after Golden Fire informed it that he had ceased employment on 21 July 2014, thereby allegedly breaching visa condition 8107(3)(b). Mr. Zhou responded to the notice, detailing allegations of unscrupulous conduct by Golden Fire, including underpayment, demands for money, and termination of employment. The Department ultimately cancelled his visa on 26 February 2016.

The Tribunal was required to determine whether the grounds for cancellation were established and, if so, whether it should exercise its discretion to set aside the cancellation decision. The legal issues included whether Mr. Zhou had breached his visa conditions by ceasing employment for more than 90 consecutive days, and whether the circumstances surrounding his cessation of employment and subsequent unemployment warranted a discretionary decision to affirm the cancellation. The Tribunal also considered the potential hardship to Mr. Zhou and any international obligations Australia might have.

The Tribunal found that Mr. Zhou accepted that he had breached condition 8107(3)(b) by remaining unemployed for more than 90 consecutive days, and therefore the delegate had proper grounds to cancel the visa. However, the Tribunal considered Mr. Zhou's account of mistreatment by Golden Fire, including allegations of underpayment and demands for money, which he presented as a polite and articulate witness. While the Tribunal could not make definitive findings on these allegations, it placed weight on the circumstances leading to the cancellation being, at least in part, out of Mr. Zhou's control. The Tribunal also noted Mr. Zhou's prompt response to the notice of intention to cancel and the absence of other breaches or lack of cooperation. Regarding hardship, the Tribunal accepted that Mr. Zhou might face some difficulty re-integrating into China but found that his fears of prejudicing future visa applications were largely unfounded, as the cancellation would not attract certain public interest criteria preventing future applications.

Ultimately, the Tribunal concluded that the correct and preferable exercise of its discretion favoured affirming the delegate's decision. The Tribunal noted that Mr. Zhou had left Australia and did not wish to remain in Australia to await the outcome of further visa applications. It found that the cancellation was unlikely to prejudice future visa applications and that the hardship arguments carried limited weight. Therefore, the Tribunal affirmed the decision to cancel Mr. Zhou's subclass 457 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. The evidence before the Tribunal The delegate’s decision record, which the applicant gave to the Tribunal in the review, recorded the following:(a)On 26 March 2012, the applicant was granted a temporary business entry (class UC), temporary work (skilled) (subclass 457) visa, which was to remain current for four years until 26 March 2016; (b)The standard business sponsor who initially sponsored the applicant for his 457 visa was ‘Gold Leaf Restaurant’ (Gold Leaf). The applicant ceased employment with Gold Leaf on 11 August 2013. On 14 November 2013, an application by Golden Fire Charm Pty Ltd (Golden Fire) to sponsor the applicant for a 457 visa was approved;(c)By notice of intention to cancel the applicant’s visa dated 14 September 2015, the department notified the applicant that on 21 July 2014 Golden Fire informed it that the applicant had ceased employment with Golden Fire. The notice stated that the applicant had apparently breached condition 8107(3)(b) of his visa, and it invited the applicant to respond;(d)The applicant responded to the notice by an undated letter, which the department received on 29 October 2015. In that letter, the applicant stated (amongst other things):(i)The principal of Golden Fire, who operated a Cantonese cuisine restaurant, offered to pay him a salary of $55,000 per year if he left Gold Leaf and came to work for Golden Fire as a pastry chef. He agreed to transfer his sponsorship to Golden Fire and take up employment with that company;(ii)He paid $13,000 to an ‘agent’ of Golden Fire. He did not know whether Golden Fire’s principal took some of that money;(iii)Despite Golden Fire’s promise to pay him $55,000 per year, it only paid him $350 per week cash for a six-day working week (a total of 65 hours a week). Golden Fire did not ever give him an employment contract or payslips;(iv)Despite Golden Fire promising repeatedly to pay him his legal wages, that never materialised;(v)In mid June 2014, Golden Fire’s principal demanded that he pay $10,000 to the principal for Golden Fire to continue sponsoring him. If he did not pay, Golden Fire would terminate his employment and have his visa cancelled;(vi)Out of fear of having his visa cancelled, he paid Golden Fire $3,000 and asked for more time to pay the rest of the $10,000. Golden Fire allowed him one week to find the rest of the money;(vii)Because he could not pay the rest of the money within the week, Golden Fire terminated his employment and notified the department that it had done so;(viii)He reported his mistreatment at the hands of Golden Fire to the Fair Work Ombudsman but he has not had any response to his complaint; and(ix)‘Xiang Club’ has since offered to employ him as a pastry chef, and he has signed an employment contract with that employer under which it would pay him $58,000 per annum. Xiang Club has also applied to sponsor him for a 457 visa.(e)The delegate was not able to obtain any corroboration from the Fair Work Ombudsman supporting the applicant’s claim that he had made a complaint about Golden Fire’s conduct; (f)Information on the department’s systems revealed that Xiang Club Pty Ltd (as trustee for the Xiang Club Unit Trust) (Xiang Club) had applied to sponsor the applicant on 19 December 2014 but that application was refused on 6 May 2015. A fresh application by Xiang Club lodged on 28 September 2015 was being considered by the department; and(g)The department cancelled the applicant’s visa on 26 February 2016.

Decision

Reasons for decision

In his evidence, the applicant stated that he had been mistreated by Golden Fire. He said that Golden Fire did not pay him the salary agreed, and only paid him $350 a week in cash for a 65-hour working week. That is less than the current minimum wage in Australia of $672.70 for a 38 hour week.[4] [4] >The applicant said that when he did not comply with Golden Fire’s demand for $10,000, it terminated his employment and informed the department that he had ceased working for it.In the hearing, the applicant presented as a polite and articulate young man. The Tribunal was impressed with how the applicant presented himself and with his evidence. Further, as of June or July 2014, the applicant plainly did not want his visa imperilled and he would not have left Golden Fire voluntarily, which would only have threatened his visa. In those circumstances, the Tribunal is inclined to accept at least that the applicant did not leave employment with Golden Fire voluntarily, and that he was either terminated or forced to leave.The Tribunal is not in a position to make a finding about the applicant’s claims that Golden Fire paid him less than his agreed salary (and less than the minimum wage in Australia), and that it demanded money from the applicant to preserve his visa. The Tribunal considers though that there are sufficient grounds to warrant investigation of Golden Fire’s treatment of the applicant and other employees on 457 visas. The Tribunal places weight in the applicant’s favour on the circumstances leading to the applicant’s visa being cancelled being out of his control. Extent of compliance with visa conditions and co-operation with the departmentOn the evidence before the Tribunal, other than the breach of condition 8107(3)(b), the applicant has not breached any condition of his visa. Further, there is no evidence of a lack of co-operation with the department. For example, he did not ignore the notice of intention to cancel his visa. He responded to the notice fulsomely and promptly. Those matters stand to the applicant’s favour. Hardship caused by the cancellation to the applicant and his familyThe applicant pointed to two hardships following from the visa cancellation. First, he proposed to apply for another 457 visa on the nomination of Xiang Club or some other employer. He feared that the cancellation of his visa would constitute a ‘black mark’ on his migration history in Australia, which would prejudice his proposed application for another 457 visa in the future. He wanted the cancellation decision set aside to avoid such a ‘black mark’. He did not want to prejudice his chances of obtaining another 457 visa and risk losing the investment he has made in life in Australia over the last 11 years. Second, given his 11 years in Australia, he will struggle a little to integrate back into life in China. He will also struggle to find work in China because his Australian qualification in hospitality and his work in experience in that area is not easily transferable to China. Also, he has spent 11 years in Australia, and it will not be easy for him to re-integrate into Chinese life.The Tribunal does not accept that the visa cancellation will prejudice the applicant’s chances of obtaining another 457 visa on the nomination of Xiang Club or some other employer. The applicant’s fear about a ‘black mark’ against his migration history by reason of his visa being cancelled is unfounded. The circumstances in which the applicant’s visa was cancelled does not attract Public Interest Criteria 4013, which could have prevented him from applying for and being granted a new visa from offshore. The applicant will not be prevented from applying for another 457 visa from offshore on the nomination of Xiang Club or another employer, and his visa being cancelled will not, on its own, result in any new 457 visa application being refused. The Tribunal places substantial weight on that matter. Further, although the applicant left Australia while on a bridging visa E, the circumstances in which he left will not attract the application of Public Interest Criteria 4014. Under sub-clause (5) of those criteria, they will not apply to an applicant who leaves Australia while on say a bridging visa E that was granted within 28 days after a substantive visa held by the applicant ceased to have effect. Here, the applicant held a substantive 457 visa until 26 February 2016 when it was cancelled. He was granted a bridging visa E on 7 March 2016[5], being within 28 days of 26 February 2016, pending the outcome of this review. Accordingly, Public Interest Criteria 4014 will not apply to the applicant’s prejudice. In any event, any prejudice from the application of Public Interest Criteria 4014 to the applicant follows from his leaving Australia while on a bridging visa E, not from the delegate’s decision to cancel his 457 visa.[5] According to the records on ICSE.The Tribunal accepts that the applicant is likely to encounter some difficulty re-integrating into life in China given his 11 years in Australia. The Tribunal also accepts that the applicant might encounter some difficulty transferring his qualifications and skills to China. However, he is a young man who is well qualified, intelligent, articulate, and polite. Further, the Tribunal considers that on balance, the applicant’s work experience in Australia will stand him in good stead in China. Those matters point to the likelihood that the applicant will be able to re-establish himself in China relatively quickly. Hardship following from life in China assumes that the applicant will remain there over the long term. As stated in paragraphs 35 and 36 above, on the evidence before the Tribunal, the applicant will likely be able to return to Australia on a new 457 visa on the successful nomination of another employer, or on some other visa assuming the applicant can satisfy the relevant requirements. Accordingly, the Tribunal places limited weight on the hardship matters the applicant raised.Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being 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 person from making a valid visa application without the Minister’s InterventionThe applicant will need to apply for any new 457 visa from China. As stated in paragraphs 35 and 36 above, the applicant will not be prevented from applying for and being granted a new 457 visa on the successful nomination of a standard business sponsor. Accordingly, this consideration does not apply. As the applicant will be applying for any fresh 457 visa from offshore, section 48 will not apply to prevent any such application.Whether there are others whose visas would or may be cancelled under s. 140This consideration does not apply. The applicant is single and does not have any children. There are no secondary visa holders whose authority to remain in Australia is affected by the cancellation decision.Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellationIn considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).Before the hearing, there was nothing in the documents before the Tribunal that would have supported an argument that Australia would offend its international obligations if the applicant returned to China. The applicant did not say anything at the hearing, and did not submit any written evidence, that would change that position.Other mattersThe applicant said he wanted to record his protest against some elements of Australia’s 457 visa-scheme. He said that it left employees exposed to unscrupulous employers who could mistreat employees and threaten their visa status if the employees complained. The Tribunal acknowledges the applicant’s complaint. Australia’s 457-visa scheme can lead to some regrettable outcomes. As stated in paragraph 28 above, and without making any finding on the issue, Golden Fire’s treatment of the applicant warrants further enquiry. ConclusionGiven that the applicant said in evidence that he did not want to stay in Australia to await the outcome of Xiang Club’s application to sponsor him (and the applicant has now left Australia), and that he would look for another sponsoring employer from China if necessary, the outcome of this review turns largely on whether the cancellation of the applicant’s visa would prejudice any application for a new 457 visa (or some other visa) from offshore. As stated in paragraphs 34-36 above, the decision to cancel the applicant’s visa is unlikely to prejudice the applicant in any future visa application.Otherwise, the evidence before the Tribunal favours affirming the delegate’s decision. The purpose of the applicant’s stay in Australia under his 457 visa no longer exists, the visa has expired through effluxion of time in any event, and the hardship matters in the applicant’s favour are limited. Accordingly, there remains little to support setting aside the delegate’s decision.Having regard to all the evidence before it, and balancing the matters both in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s 457 visa. DECISIONThe Tribunal affirms the decision to cancel the applicant’s subclass 457 (temporary work (skilled)) visa.L. HawasMember

Ratio Decidendi

Legal Principle Established

During the hearing, the applicant gave the following further oral evidence:(a)He was born on 25 December 1988 (now 28 years old). He is single and does not have any children;(b)He came to Australia in October 2005 on a student visa. He completed his VCE at Whitefriars Catholic College in Donvale, a suburb in Melbourne’s east;(c)After graduating with his VCE, he commenced a Diploma course in hospitality management at the Australian National Institute of Business. He graduated with his Diploma in Hospitality Management in 2011;(d)In about early 2012, Gold Leaf, which operated a Cantonese cuisine restaurant, successfully nominated him as a chef, and consequently he was granted his 457 visa on 26 March 2012. Subsequently, he worked for Gold Leaf as a pastry chef;(e)In about the middle of 2013, the principal of Golden Fire approached him and suggested that he transfer his sponsorship to Golden Fire and work for that company in its Cantonese cuisine restaurant. Golden Fire’s principal promised that if he worked for Golden Fire, it would assist him to obtain permanent residency in Australia, and he would obtain that within two years;(f)On those grounds, he agreed to move across to Golden Fire and work for that company as a pastry chef;(g)Within a couple of weeks of commencing work for Golden Fire in about July 2013, the principal of the company told him that it would cost $13,000 AUD to have his sponsorship transferred from Gold Leaf to Golden Fire. The principal asked him to pay the $13,000 AUD to Golden Fire’s migration agent to arrange the transfer;(h)His father transferred $13,000 AUD to him and he paid that money to Golden Fire’s migration agent;(i)He worked six days a week (for a total of 65 hours a week). Golden Fire only paid him $350 per week in cash. He repeatedly asked Golden Fire’s principal to pay his proper wages but Golden Fire did not oblige;(j)In about June 2014, Golden Fire’s principal told him that if he wanted permanent residency in Australia, he would need to pay Golden Fire $10,000 AUD. If he did not pay the money, Golden Fire would terminate his employment and have his visa cancelled;(k)He did not pay Golden Fire the $10,000. Golden Fire reported to the department in late June 2015 that he had ceased employment with the company but it did not terminate him until late July 2015;(l)He looked for alternative work immediately upon ceasing work with Golden Fire;(m)In about mid August 2015, he reported his mistreatment at the hands of Golden Fire to the Fair Work Ombudsman. On following up his complaint, the Fair Work Ombudsman told him that it had not received any complaint from him. It did not investigate his complaint; (n)In about October 2014, Xiang Club offered him a job as a pastry chef, and it subsequently applied to nominate him for a 457 visa. That application was withdrawn or refused because Xiang Club was a new company and it did not have a business plan. Xiang Club has since applied again to nominate him. He was not sure what had happened with that application. He understood it had been refused but Xiang Club was now appealing that decision;(o)He accepted that by ceasing work with Golden Fire in June or July 2014, and subsequently remaining unemployed for more than 90 consecutive days, he breached the conditions of his visa, and the delegate had proper grounds to cancel the visa. He did not challenge the grounds for cancellation. However, the Tribunal should exercise its discretion to set aside the delegate’s decision for the following reasons:(i)He sought a review of the delegate’s decision for two reasons; (ii)First, he was concerned that the cancellation of his 457 visa would be a ‘black mark’ against his name, which would prejudice his chances of obtaining another 457 visa on the nomination of Xiang Club or some other employer. He did not want the cancelled visa to prejudice his chances of obtaining another 457 visa; (iii)Second, he wanted a hearing to say that Australia’s 457 visa system had some unfair consequences. People come to Australia on 457 visas but if they encounter an unscrupulous employer, like Golden Fire, the employee has little means to protect himself from the actions of the employer. In that event, the employee is left with few rights. In his case, Golden Fire underpaid him, tried to extract money from him unlawfully, and treated him badly. The result for him was that he was terminated and his visa was cancelled. The Fair Work Ombudsman did not investigate his complaint and he now has little recourse to Golden Fire;(iv)If he returns to China, he will suffer some hardship. He has been in Australia for 11 years and has invested a substantial proportion of his life in Australia. He has become accustomed to life here. If he returns to China, he will lose his investment in life in Australia. He will also struggle to find work in China because he does not have any employment history there. His experience in the hospitality industry in Australia is not easily transferable to China. That country has different health and safety laws and regulations. (p)At the conclusion of the hearing, the applicant said that he did not want to stay in Australia in the short term. He planned to return to China toward the end of 2016. He is engaged to be married to his fiancée in China, and he wanted to do that at the end of the year. If Xiang Club’s application to nominate him is ultimately approved and he is granted a 457 visa, he will return to Australia. If that application is not approved, he will look for another Australian employer from China who is prepared to sponsor him, and if he can obtain a 457 visa that way, he will return. But he does not want to stay in Australia just to look for another employer. He has only sought a review to ensure that any future application for a 457 visa is not prejudiced, and he wanted to express his dissatisfaction with some elements of Australia’s 457 visa scheme; and (q)The movement records maintained by the department reveal that he left Australia for China in December 2016.Consideration of claimsDoes the ground for cancellation exist?