1510557 (Migration)

[2016] AATA 3160

1510557 (Migration) [2016] AATA 3160 (1 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mandhir Singh Brar

CASE NUMBER:  1510557

DIBP REFERENCE(S):  BCC2013/1859672 CLF2015/44122

MEMBER:Mary-Ann Cooper

DATE:1 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 01 February 2016 at 5:00pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 August 2015 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 had, in addition to his working for his nominating employer, also worked as a taxi driver for another business, in breach of paragraph 8107(3)(a)(i) of his visa 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 13 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s nominating employer.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

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

6. 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 requires that the applicant must work only in the occupation listed in the most recently approved nomination in respect of him or her.

7. The most recently approved nomination in relation to the applicant was approved on 17 January 2013, for him to work in the occupation of Motor Mechanic for standard business sponsor, Mr. Tune Up Pty Ltd.

8. In the present case the delegate, in cancelling the visa, was satisfied that s.116(1)(b) grounds existed. The delegate found that condition 8107(3)(a)(i) applied to the applicant’s visa and this condition required that if the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Business (Long Stay)) visa granted on the basis of meeting the requirements of subclause 457.223(2) or (4), he must work only in the occupation listed in that most recently approved nomination.

9. On 25 July 2015 the applicant had been intercepted by the Taxi Services Commission while driving a taxi and issued with an infringement notice for a failure under Part VI of Division 6 of the Transport Act 1983 (Vic) to comply with the conditions of his accreditation. He was fined $379.00. Department of Immigration officers were also present and, as confirmed by the applicant at the hearing, spoke to him regarding his immigration status and his employment as a taxi driver. He was consequently issued with a Notice of Intention to Consider Cancellation on the basis of his alleged breach of his visa condition 8107. An interview was scheduled for 30 July 2015 in which the applicant was given an opportunity to respond however, according to the applicant, that interview was rescheduled to 3 August 2015.

10. In the record of decision following that interview, the applicant’s reasons why his visa should not be cancelled are recorded. The applicant acknowledged his additional, part-time employment as a taxi driver and claimed that he had been unaware of the relevant visa condition. He had claimed that he was required to work a second job to support his family in India and had misunderstood the conditions attached to his visa. The record of decision also records the delegate’s considerations and reasons for deciding to cancel the visa.

11. Prior to the hearing the Tribunal received a submission from the applicant’s representative in which the breach of the visa condition is acknowledged and is expressly not challenged. Each of the discretionary factors is addressed and the submissions in this regard are further discussed below.

12. At the hearing the applicant confirmed that the notice of decision was handed to him at the conclusion of the interview. He also confirmed that he had worked as a taxi driver, on and off, since soon after the grant of his visa. He said he had understood his visa conditions to require him to remain with his nominating employer for the duration of his visa but he had not appreciated that the condition required him to only work for his employer.

13. The applicant conceded he was in breach of paragraph 8107(3)(a)(i) by performing work in a business other than in that which the standard business sponsor nominated him, and requested the Tribunal to nonetheless consider its discretion favourably and give him a “second chance”.

14. On the basis of the evidence before the Department, and the concessions made in submissions and at the hearing, 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

15. 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’.

    The purpose of the visa holder’s travel to and stay in Australia

16. The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The purpose of the visa is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The occupation of Motor Mechanic is one of a limited number of occupations listed by the Minister as an occupation that can form the basis of an approved nomination.

17. The applicant’s representative had submitted that the employment relationship between the applicant and his nominating employer continues and is intended to continue should the visa cancellation be set aside.

18. At the hearing the applicant confirmed that he originally came to Australia for the purpose of studying. His completed courses included, among others, Certificates III and IV and a Diploma of Automotive Technology. His current sponsor is the employer for whom he worked part-time while studying. When he applied for his subclass 457 visa his stay was for the purpose of working as a mechanic for nominator, Tune Up Pty. Ltd. The applicant is still working for his nominating employer, who, as discussed further below, told the Tribunal that he highly values the applicant’s skills, work capacity and honesty.

19. As noted above, however, the applicant has acknowledged that he had a second job working as a taxi driver. This employment was not the purpose for which the visa was granted to the review applicant. Condition 8107 is in place to ensure the integrity of the subclass 457 temporary business program, the purpose of which is to meet Australia’s short-term needs for skilled workers whilst maintaining important public policy safeguards against displacement of Australians from employment opportunities in lower skilled occupations. The Tribunal gives some weight to this factor as it is a breach of an important and fundamental condition of a subclass 457 visa.

    The reason for and extent of the breach

20. The applicant acknowledged at the hearing that, as well as continuing to work fulltime for his nominating employer, he had worked as a taxi driver on an ad hoc basis from April 2014, soon after the grant of his subclass 457 visa. The Tribunal noted that there were many pieces of information that should have made the applicant aware of the conditions attached to his subclass 457 visa. Such sources of information are available on the form itself and in publicly available information on the Department’s website. The applicant responded that he had been ‘stupid’ and had not properly understood the condition of his visa that he work exclusively in the nominated position and not engage in any further employment. He said he had read his visa grant notice but had not done so thoroughly. He now realised the mistake he had made, said he had not worked as a taxi driver since, and apologised for his error. On the evidence provided, he has experienced significant financial difficulty since the cancellation of his visa however he has complied with his conditions since he discovered his error. While the Tribunal considers that the breach is serious, it has attached some weight to the applicant’s frank concessions in this regard and his actions in ceasing the non-compliant conduct.

21. In addition, as further discussed below, the Tribunal was supplied with documentation that confirmed his father’s illness and inability to work, as well as the applicant’s ongoing transfers of significant sums of money to his parents from 2014 to date. The Tribunal accepts that the applicant needed to financially support his parents and considers that this is a significant factor mitigating the breach.

22. On balance, the Tribunal, while not accepting that ignorance of his obligations or his  mistake excuses the applicant’s non-compliance with condition 8107, considers that his father’s illness and the needs of his parents placed significant pressure on him, as the only son, to provide for them. It gives this factor considerable weight in its assessment. In this context the Tribunal further notes that the guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. The Tribunal considers that his parents changed circumstances were, to a significant degree, beyond the applicant’s control.

    The degree of hardship that may be caused to the visa holder and any family members

23. As noted in the submissions provided, the applicant is now the primary provider for himself and his family and to return to India would cause him “a great deal of shame.” At the hearing the Tribunal suggested that the applicant could return to India and work as a motor mechanic. He responded that he would have to start over again, that it would be at least 12 months before he might be able to earn enough money to support his family. He said his parents had supported him while he studied for his qualification and he now needs to support them. He said his father’s medical expenses were quite high.

24. As noted above, prior to the hearing the applicant had forwarded evidence of the money he had transferred to his parents since 2014. It amounted to several thousands of dollars and the Tribunal accepts that the reduction or withdrawal of this support would cause significant hardship to the applicant’s family members. It also accepts the applicant’s oral evidence as supported by financial information provided, that he has incurred significant debt during his period of cancellation, before he was given work rights, and that cancellation of his visa might mean these debts are unable to be repaid. This information also indicated however that the applicant might return to or continue to undertake additional employment and the Tribunal queried the applicant concerning his ability to repay the debt. He responded that he had recently had a payrise and expected to be able to manage financially, having sold his car and moved to a share house where his rent is significantly reduced. He maintained that now he was fully aware of the conditions of his visa he would comply with them. In his oral evidence, his employer confirmed the applicant’s pay rise.

25. As previously stated, the applicant’s ignorance of his compliance requirements is no excuse for the breach of one of the conditions of his visa however the Tribunal also accepts that he has already suffered significant hardship as a result of the cancellation of his visa, as have his family insofar as he has been unable to send them any money for approximately 4 months until his work rights were restored. It also accepts that leaving Australia would also involve significant hardship to the applicant and his family. The Tribunal attributes significant weight to this consideration.

    The visa holder’s past and present behaviour towards the Department

26. The Tribunal accepts that the applicant has not previously breached visa conditions and has been wholly co-operative with the Department and the Tribunal on review.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

27. This factor is not relevant to the present case.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

28. There is no evidence before the Tribunal regarding this matter.

    Whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations

29. There is no evidence before the Tribunal that if the review applicant returns to India he will face persecution, death, torture, cruel, inhuman or degrading treatment or punishment.

    Other Matters

30. The applicant’s employer attended the Tribunal and provided evidence in his support. He said it was very hard to find good motor mechanics who are also smart, as is the applicant because of his study and formal qualifications. He said many mechanics are “hopeless” and he recently hired one who left after two days. He said the applicant is honest and a good worker and has assisted him to grow his business. He said that he was just about to open another business and needed to retain the applicant and that his business would suffer if the applicant had to leave. He claimed he did not know about the applicant’s second job but that the applicant had earlier approached him for a payrise. He said he refused it because at the time he could not afford to pay it. He said he later discovered that the applicant needed to send money to his family and had since been able to offer him a small payrise. He said he would like the applicant to remain with him permanently. He claimed that everyone makes a  mistake and asked the Tribunal to give the applicant another chance.

31. While the Tribunal is not persuaded that the sponsoring business will be unable to replace the applicant with another mechanic, it accepts that it may have difficulty replacing him. Given the imminent opening of the new business, and the evidence concerning the difficulties with persons recently hired, the Tribunal does accept that the loss of the applicant’s skills would cause a significant degree of hardship for his employer. In this context, the Tribunal regards the degree of hardship to the applicant’s sponsor as a significant factor in the favourable exercise of its discretion in this regard.

32. Following the hearing the Tribunal received a further submission from the  applicant’s representative and further documents as follows:

    ·     A copy of the applicant’s subclass 457 visa grant notice

    ·     Correspondence from the Sikh Cultural Society of Victoria Inc which states that the applicant is a ‘regular devotee’ and performs ‘selfless service’ undertaking many volunteer duties and that his services are appreciated.

    ·     A statutory declaration from his employer, declaring that the applicant is “reliable, honest and hard working” and that he needs people like him to take on a leadership role in the business as he reduces his workload due to ill health.

    ·     Details of further money transfers.

33. In a covering submission the applicant’s representative refers to the correspondence related to the applicant’s subclass 457 visa grant, noting the heading “Requirements if you stop working for your sponsor”,  and the reference to condition 8107. It is further noted that it does not specifically state that visa holders subject to this condition cannot undertake other work. In this context it is submitted that that the correspondence contains only partial information and it was reasonable for the visa holder to believe that it contained all the relevant information regarding visa conditions. The Tribunal notes however that this section of the correspondence also states that “More information on visa conditions and entitlements is available on and does not consider it unreasonable to have expected the applicant to make himself fully aware of the conditions attached to his visa.

    CONCLUSION

34. The Tribunal found the applicant to be an open and frank witness who responded spontaneously to its questions and to be convincing in his responses. It accepts that his family has needed his financial assistance and considers that this is a mitigating factor in his breach of condition 8107. In addition it has placed significant weight on his employer’s evidence that he will be greatly disadvantaged if the applicant’s visa is cancelled. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Mary-Ann Cooper
    Member