Zhu (Migration)

[2017] AATA 492

Zhu (Migration) [2017] AATA 492 (24 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Haimei Zhu

CASE NUMBER:  1611420

DIBP REFERENCE(S):  BCC2015/3745819 BCC2016/3219223

MEMBER:Rania Skaros

DATE:24 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 March 2017 at 1:19pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Massage therapist – Applicant’s employment with sponsor terminated – Applicant not advised of termination – Approved sponsorship with new employer – Visa duration complete – Left Australia – Option to apply offshore further visa

LEGISLATION

Migration Act 1958, ss 48, 116(1)(b)

Migration Regulation 1994, Schedule 2 cl 457.223, Condition 8107, Public Interest Criterion (PIC) 4013, 4014

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 January 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(1)(b) on the basis that the applicant did not comply with condition 8107.

3. The applicant applied for review of this decision. A copy of the delegate’s decision record was provided to the Tribunal. The Tribunal, differently constituted, affirmed the delegate’s decision to cancel the applicant’s Subclass 457 visa. The applicant applied for judicial review of that decision and the matter was remitted by consent for reconsideration by the Tribunal.

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

5. The applicant appeared before the Tribunal by telephone on 20 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.]

6. The applicant was represented in relation to the review by her registered migration agent. The agent also attended the hearing by telephone.

7. 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

8. 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)(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?

9. 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), which states:

   (3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

   (a)      the holder:

   (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

   (ii)      unless the circumstances in subclause (3A) apply

   (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

   (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor…

   ……..

   (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days

10. The Tribunal is satisfied that 8107(3A) does not apply in this case.

11. The applicant was granted a Subclass 457 Visa on 22 June 2013 on the basis of an approved nomination by Australia Fenglong Pty Ltd (Fenglong). The applicant confirmed at the hearing that this visa was valid for three years, i.e. until 22 June 2016.

12. On 29 August 2015 the Department received information from the nominating employer that the applicant’s employment with Fenglong Pty Ltd ceased on 28 August 2015.

13. In her written response to the notice of intention to consider cancellation (the notice), the applicant stated that she had always worked hard for her employer and had not taken any leave in the time she worked there. She asked her employer for leave of two months so she can travel to China to seek treatment for her daughter who has a skin condition. She stated that she thought her employer may approve the leave but the employer told her they were too busy. She stated that she understood an employer can reject leave so she withdrew her request. As her daughter’s condition worsened she again asked her employer for leave but the employer again said no and indicated that she would report the applicant to the Department if she did not turn up for work.  On 27 August 2015 the applicant’s daughter was not well, she did not turn up to work and called her employer to advise that her daughter is sick and that she needed to take her back to China for treatment and that she would be back in October and will resume work then. She told her employer that she had to do this whether they approved or not. At the hearing the applicant reiterated this evidence and indicated that she did not turn up to work after speaking to her employer on 27 August 2015. She stated that while she was on leave her employer had not notified her about the termination and that she was reported to the Department. She stated that she only found out about the termination after she returned from China in October 2015.

14. The Tribunal asked the applicant when the last day she worked for her employer was, she stated 27 August 2015. The Tribunal explained to the applicant the requirements in 8107(3) and noted that as the period during which she ceased employment exceeded 90 days she had not complied with 8107(3). The applicant stated that she was on leave believed that the 90 days started in October 2015 after she found out that her employment had been terminated. The applicant stated that she started to look for work straight away and found another job as a massage therapist with Yun Hai Health Care Pty Ltd (Yun Hai) and commenced working with them in November 2015.

15. The Tribunal has considered the applicant’s evidence. The Tribunal is prepared to accept that she did not become aware of the termination of her employment with Fenglong until after she returned from China in October 2015. However, on the applicant’s own evidence, the employer did not approve her leave and warned her that she would be reported to the Department if she did not turn up for work. The Tribunal considers that the applicant would have at least been aware that she was at risk of being terminated from her employment given her employer’s warnings. In any case, the Tribunal does not consider the applicant’s lack of knowledge about her termination to be determinative of when she actually ceased employment because, as in this case, termination of employment can be instigated by the employer.

16. The applicant indicated that the last day she worked for Fenglong was on 27 August 2015, the Tribunal notes that this was the same day the applicant contacted her employer to advise that her daughter was not well and that she would be taking her daughter to China whether they approved or not. Two days later, the employer notified the Department that the applicant’s employment had ceased with them on 28 August 2015. Having considered the evidence, the Tribunal is satisfied that the applicant’s employment with Fenglong was terminated on 28 August 2015. It follows that the applicant ceased employment with the Fenglong on 28 August 2015.

17. The Tribunal has considered the applicant’s evidence that she commenced employment with Yun Hai in November 2015, the Tribunal notes that even if this employment commenced within the 90 days of the applicant having ceased employment with Fenglong, Yun Hai was not the approved sponsor at that time and was not an associated entity of Fenglong.

18. Given the above, the Tribunal finds that the applicant ceased employment on 28 August 2015 and that the period during which she ceased the relevant employment, as required by 8107(3)(a), exceeded 90 consecutive days. The Tribunal accordingly finds that there was non-compliance with 8107(3)(b).

19. 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

20. 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’.

21. The Tribunal has first considered the purpose of the applicant’s travel and stay in Australia. The applicant travelled to Australia as the holder of a 457 visa to work as a massage therapist for Fenglong. The Tribunal considers that the purpose of the applicant’s visa is to work for an approved sponsor in an approved occupation. The Tribunal considers that the purpose of the applicant’s 457 visa ended when the applicant’s employment with Fenglong ceased. When this was discussed with the applicant at the hearing, she stated that she has an approved nomination from another employer.

22. The Tribunal acknowledges that the applicant is currently the subject of an approved nomination by an approved sponsor, Yun Hai, however, as explained to the applicant at the hearing, she is now outside Australia and the 457 visa which is the subject of this review has already ceased, and in these circumstances the applicant would still have to apply for another 457 visa, which she could do from outside Australia, if she wished to return to work for Yun Hai. The applicant stated that she departed Australia on 18 June 2016 and that she is not entitled to lodge a new visa application. She stated that when she was in Australia she applied for a bridging visa on two occasions. The first bridging visa was granted to her with permission to work but the second visa did not have permission to work and this is why she departed Australia as she could not wait in Australia without work during the review and judicial review process. The Tribunal acknowledges the reasons for why the applicant departed Australia, however, it is open for the applicant to apply for a 457 visa while she is outside Australia on the basis of the nomination by Yun Hai which was approved on 5 May 2016 and is valid for 12 months. When this was discussed with the applicant at the hearing, she stated that when she was travelling back to China an officer told her that she would not be able to apply for another visa within three years unless the AAT said her application was successful. She said that since her visa was cancelled onshore, it is impossible for her to lodge new application.

23. The Tribunal considers that the applicant is incorrect in her understanding that she cannot lodge another visa application. As the applicant is outside Australia she is not affected by s.48 of the Act and is not prevented from applying for a Subclass 457 visa from outside Australia. Whether she qualifies for the grant of the visa will of course depend on whether she meets all of the requirements for the grant of the visa. It is also not necessarily the case that the applicant will be affected by the three-year restriction in public interest criterion (PIC) 4013 and 4014, which the Tribunal acknowledges must be satisfied for the 457 visa to be granted. Firstly, the Tribunal considers that PIC 4013 would not apply to the applicant because although her 457 visa was cancelled under s.116 because she did not comply with a condition of that visa, the visa is not of a subclass specified in Part 2 of Schedule 4. In relation to PIC 4014, this may not apply if the bridging visa she held at the time of departure was granted within 28 days after a substantive visa held by her ceased to be in effect or while she held another bridging visa that was granted within 28 days after the substantive visa ceased to be in effect. And even if the applicant is affected by PIC 4014, the restrictions can be waived if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

24. The Tribunal gives weight to the above considerations in favour of cancelling the visa.

25. The Tribunal has next considered the extent of the applicant’s compliance with visa conditions. The applicant’s evidence is that she commenced work for another employer, Yun Hai, as a massage therapist, in November 2015 and that she continued to work there until June 2016 when she returned to China.  The Tribunal notes that from November 2015 until 15 January 2016, when the applicant’s visa was cancelled, she was a holder of the 457 visa on the basis of the nomination by Fenglong and at that time the nomination by Yun Hai in relation to her had not yet been approved. When this was discussed with the applicant at the hearing, she stated that it was a trial and that if she did not do that the new employer would not have sponsored her. She stated that she tried to talk to them but they insisted that she work before they would sponsor her. The Tribunal has considered the applicant’s explanation however it is not satisfied that this justifies the applicant’s failure to comply with condition 8107(3)(a). The Tribunal considers the applicant’s decision to work for another employer without an approved nomination from that employer demonstrates her disregard for the conditions imposed on her 457 visa. The Tribunal gives weight to these considerations in favour of cancelling the visa.

26. In relation to the hardship that may be experienced if the visa is cancelled, the applicant stated that there would be hardship in relation to her daughter’s education as they had difficulty finding a school near where they live due to long waiting lists. She further stated that she and her daughter are currently in their hometown as she has to look after her daughter and that does not have a job. She stated that only her husband works. He has a job outside their hometown as a salesman and they have lots of financial pressure. She also stated that as massage therapist in China she experiences a lot of difficulty because they have low social status and that she is more respected in Australia and she can earn a higher wage than in China. She stated that she needs to return to Australia as soon as possible because her current employer needs staff.

27. The Tribunal has considered the applicant’s submissions however the Tribunal is not satisfied that the hardship experienced by the applicant, her family or the sponsoring employer would necessarily be alleviated if the visa is not cancelled. The applicant’s 457 visa has already ceased, she has been outside Australia since June 2016 and would need to apply for and be granted another visa to enable her to return to Australia to work for Yun Hai. The Tribunal also considers that the applicant could alleviate her stated hardship by moving to another area where she could find work, either in her field or another field of work, and enrol her daughter at school. The Tribunal gives limited weight to the stated hardship in its considerations.

28. The Tribunal has considered the circumstances in which the cancellation arose. The Tribunal considers that the ground of cancellation arose 90 days after 28 August 2015, which is when the Tribunal found that the applicant had ceased employment with Fenglong. When this was discussed with the applicant at the hearing, she stated that her previous employer had cheated her and did not tell her that he reported her to the Department. She only found out about the termination when she returned from China and she started looking for a new employer as soon as possible. She stated that had she known about the termination of her employment her new employer could have lodged the nomination sooner. The Tribunal is prepared to accept that the applicant may not have become aware of the termination of her employment until she returned from China in October 2015, and accepts that she had made efforts to find another employer to sponsor her soon as possible thereafter. The Tribunal gives some weight to these considerations in favour of the applicant. 

29. The Tribunal has considered the applicant’s past and present conduct of the visa holder towards the department and is satisfied that she has been cooperative with the Department and gives some weight to this in favour of the applicant.  

30. The Tribunal has also considered the mandatory legal consequences of cancellation. The applicant is currently outside Australia and the cancellation of the visa would not therefore result in the applicant being unlawful and subject to detention. As indicated above, the applicant will not be affected by s.48 of the Act as this provision only applies to onshore applications. As the applicant is outside Australia the cancellation will not prevent her from making a valid visa application offshore. The Tribunal gives weight to these considerations in favour of cancelling the visa.

31. The Tribunal has considered, and accepts that the cancellation of the applicant’s visa, lead to the consequential cancellation of the visas held by the applicant’s spouse and child. However, it is the intended consequences of the legislation that members of the same family have the same visa status.  The Tribunal gives limited weight to this factor in its considerations.

32. The applicant and her family members are all currently in China and there is limited evidence before the Tribunal to suggest that international obligations would be breached as a result of the cancellation in the circumstances of this case.  

33. The Tribunal has also had regard to the applicant’s evidence that the hearing that she was confused when she was giving evidence at the previous hearing before another member when she was asked about the transfer of money from her account. She stated that the amount the previous member was enquiring about related to the payment made by her spouse for 6 months’ rent at the property in Whyalla, which coincidently was also owned by the same person that operated Yun Hai Health Care Pty Ltd. While the Tribunal does consider it an unusual coincidence, it is plausible that the amount transferred was for rent and the Tribunal draws no adverse conclusions in that regard. The Tribunal does not consider these circumstances to be relevant in its considerations. 

34. The Tribunal has carefully considered and weighed up all of the evidence in this case. The Tribunal acknowledges that the applicant wants the Tribunal to set aside the cancellation as this would be more favourable to her immigration record and future visa applications she may make. The Tribunal also acknowledges that the applicant has been cooperative with the Department and that the circumstances in which the cancellation arose were in part due to the actions of her former employer who terminated her employment and had not promptly notified her. While these factors weigh in favour of not cancelling the visa, the Tribunal gives more weight to the other factors for cancelling the visa, as considered in detail above. 

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

   DECISION

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

   Rania Skaros
   Member