1510623 (Migration)

[2016] AATA 3720

1510623 (Migration) [2016] AATA 3720 (8 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adnan Nasim

CASE NUMBER:  1510623

DIBP REFERENCE(S):  BCC2015/1515895

MEMBER:Denise Connolly

DATE:8 April 2016

PLACE OF DECISION:  Sydney

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 08 April 2016 at 4:19pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 July 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 applicant was granted a Subclass 457 visa on 16 January 2012, valid until 16 January 2016, having initially been sponsored by Pathan Pty Ltd, which operated a Cheesecake Shop store in Bonnyrigg, NSW. Subsequently a nomination application lodged by another sponsor, Secure Trend Pty Ltd was approved on 15 July 2013. The nomination was approved for the applicant to work in the nominated occupation pastry cook. Secure Trend operated a Cheesecake Shop store in Casula NSW where the applicant worked as a pastry cook. Secure Trend acquired another Cheesecake Shop store in Casuarina, NT. The applicant went to work in that store and remained employed there until that store closed in June 2015.

3. On 20 May 2015 the Department received advice from the Northern Territory Department of Transport indicating the applicant had been working for himself as a taxi driver. The delegate cancelled his Subclass 457 visa under s.116(1)(b) on the basis that the applicant had breached condition 8107 which attached to the Subclass 457 visa. It requires the visa holder, among other things, to work only in the nominated occupation, and that if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

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 on 23 November 2015 and 21 January 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

7. 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

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. This condition requires that the visa holder must work only in the occupation listed in the most recently approved nomination for the holder, and must work only in a position in the business of the sponsor or an associated entity of the sponsor.

10. The applicant provided to the Tribunal a copy of the delegate’s decision record. It sets out condition 8107 and notes that it was attached to the applicant’s Subclass 457 visa. It notes that on 20 May 2015 the Department was advised by the Northern Territory Department of Transport that the applicant had been working for himself as a taxi driver. The delegate noted in the notice of intention to consider cancellation that any new sponsor must lodge a new nomination application. The delegate formed the preliminary view the applicant had ceased employment with the sponsor and had done so for more than 90 consecutive days. In the decision record the delegate found that a ground for cancellation arose because the applicant had been working for an employer other than the sponsor.

11. The applicant does not dispute that he worked as a taxi driver in Darwin, NT. In written submissions to the Tribunal and in oral evidence at his hearings, the applicant has acknowledged that he worked as a taxi driver in Darwin on weekends and that he started doing this work in January 2015. However he has submitted that he drove taxis while he was working full-time for the sponsor as a pastry cook. It was not until June 2015 that he stopped working for the sponsor and this occurred because the shop closed. He confirmed that the sponsor Secure Trend had no involvement in his work as a taxi driver.

12. On the basis the information contained in the delegate’s decision record, and the applicant’s own written and oral evidence, the Tribunal finds the applicant was working as a taxi driver while holding the Subclass 457 visa which was subject to condition 8107. This employment was not a position of the business of the sponsor. The applicant has provided a copy of the nomination approval for the sponsor Secure Trend, the most recently approved nomination for the applicant. The occupation listed is pastry cook. 

13. Accordingly the Tribunal finds the applicant did not comply with condition 8107(3)(a)(i) as the he worked in an occupation other than pastry cook while holding the Subclass 457 visa.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act 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’.

16. There is no dispute that the applicant was working as a taxi driver in the NT from about January 2015 to May 2015. The Tribunal considers that this employment is not consistent with the purpose of the Subclass 457 program, that is, to work for an approved sponsor filling a labour shortage in a skilled occupation, for which a nomination has been approved. The Tribunal notes however that the applicant has provided evidence from Secure Trend confirming that he continued to work for Secure Trend as a pastry cook on a full-time basis, in Casuarina NT from June 2013 to June 2015. He provided bank statements showing that his wages were deposited by the Cheesecake Shop in the period he was driving a taxi. The Tribunal accepts that he ceased working for Secure Trend in June 2015 because the Casuarina Cheesecake Shop closed down. He was paid by Secure Trend until July 2015, around the time the delegate cancelled the visa. The Tribunal has also examined the driver shift records from NT Department of Transport and the applicant’s timesheets from the Cheesecake Shop. While there are some minor anomalies which were put to the applicant under s.359A and discussed at a second hearing, the Tribunal is satisfied that overall those records demonstrate that the applicant worked full-time for the sponsor in the nominated occupation of pastry cook and this work was undertaken from Mondays to Thursdays. The driver shift records show that the applicant drove taxis, in the main, on Fridays and weekends.  

17. The Tribunal has discussed with the applicant his purpose for travelling to and staying in Australia, and why he needs to remain in Australia. The applicant has given his migration history. He came to Australia in 2007 to study and started working as a pastry cook in 2009 at the Cheesecake Shop. He was granted the Subclass 457 visa to work as a pastry cook and he has done this for 2 sponsors. His employment with Secure Trend ended in June 2015 when the Casuarina Cheesecake Shop closed. However he now has employment with Plantagenet Bakery Pty Ltd, t/a Mt Barker Country Bakery, Mt Barker, WA where he commenced working on 10 February 2016. The applicant provided evidence that Plantagenet was approved as a standard business sponsor on 6 May 2015 and that the business has made an application for nomination approval of which the applicant is the subject. The applicant has provided a statement and told the Tribunal at the hearing that he wishes to remain in Australia to work as a pastry cook. He has provided evidence from the NT Department of Transport that he has surrendered his taxi identity card and is no longer authorised to drive a commercial passenger vehicle in the NT. (He has however transferred his driver licence to another jurisdiction). The Tribunal is satisfied the applicant will not drive taxis in the future. He has indicated that he wishes to work as a pastry cook in Australia and ultimately migrate to Australia permanently. While the Tribunal accepts that the applicant wishes to permanently migrate to Australia this is not the purpose of the Subclass 457 program. However it appears to the Tribunal that he is working for an approved sponsor in a skilled occupation that is in demand, and he is doing this in regional WA where there may be some difficulties in filling skilled positions.

18. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The applicant has told the Tribunal that there has been no other breach of conditions. The Department’s records do not indicate that there have been other breaches.

19. The applicant has submitted that he undertook the taxi driving because of financial hardship his family has suffered because of his father’s illnesses, and his commitment to supporting his wife who he married in May 2014.  Also he claims he felt depressed because his wife remains in Pakistan and he has not been able to arrange for her migration to Australia. He was also using the income from driving to establish a home for his wife in Australia in the event that she is able to secure a visa. The applicant is providing financial support to his family in Pakistan and claims a visa cancellation will cause the family financial hardship. The Tribunal accepts this, however it is of the view this is not the purpose of the Subclass 457 visa, it is merely a decision the applicant has taken with respect to the management of his own financial resources. The Tribunal does accept however that if he were required to go offshore and leave his employment as a pastry cook he would suffer some financial hardship, particularly in circumstances where he has travelled to regional WA to work for the sponsor, Plantagenet. The Tribunal also notes his new sponsor has now lodged a nomination application of which the applicant is the subject and it may suffer some hardship if the visa is cancelled and the applicant has to go offshore.

20. The Tribunal has considered the circumstances in which the cancellation ground arose. The applicant is emphatic that he did not know that he could not do other work after he had worked his full-time hours for the sponsor. The Tribunal is not satisfied his evidence on this issue is entirely honest. The Tribunal is also of the view it would have been reasonable for the applicant to have made enquiries with the Department about his visa conditions and whether he had permission to undertake such secondary employment while the holder of a Subclass 457 visa. The Tribunal accepts however that the applicant was undertaking this work because of his commitment to support his parents and his wife, which is his customary duty in Pakistan. While this does not excuse his non-compliance it does explain it.

21. The delegate notes there is no evidence that the applicant has been uncooperative with the Department. He has also been cooperative with the Tribunal and provided the information sought.

22. There is no evidence that there would be consequential cancellations under s.140.

23. There is no evidence that any international obligations would be breached as a result of the cancellation.

24. The Tribunal asked the applicant if there were any other matters he wished to have taken into account. The applicant said that he came to Australia as a student of business studies but he found a job in a cake shop and he really enjoyed it. He studied hospitality and has pastry cook qualifications. He has worked here for 7 years. Ultimately he wishes to be granted permanent residence and made an application for permanent residence in October 2014. That application has not been finalised and he is concerned that a visa cancellation may jeopardise other visa applications. He said he was having trouble sleeping and felt depressed so working as a taxi driver gave him something to do and provided more income for supporting his family. He claims that while he worked long shifts on the weekends he actually did not make a lot of money because he would go long periods without a passenger. He provided a letter of support from Darwin Radio Taxi confirming that in a 12 hour shift, drives might only take 15 fares, averaging about 15 minutes per fare. Consequently he did not make much money from driving.

25. The applicant has worked hard to find another sponsor since Secure Trend closed the Casuarina shop. He originally found a sponsor in Peakhurst, NSW, Cake Palace. However he told the Tribunal that Cake Palace was not an approved SBS. He was told that if he lived in regional Australia permanent visa applications are approved more quickly. He has now found employment in a skilled occupation in regional WA. He is emphatic he will not work as a taxi driver again as he has now learned his lesson. He has surrendered his taxi identity card in the NT.

26. The Tribunal has considered the evidence overall and it is satisfied that, by virtue of his employment with Plantagenet in a skilled occupation, the applicant is currently meeting a demand for a pastry cook, which is the purpose of the Subclass 457 visa program. The Tribunal is satisfied that this is the mean reason the applicant seeks to remain in Australia, although he is clear about his ultimate intention to migrate to Australia permanently. The Tribunal notes that Plantagenet is an approved SBS and that it has made an application for nomination approval, of which the applicant is the subject. The Tribunal is mindful that Plantagenet has demonstrated its commitment to sponsoring the applicant and that it may be adversely affected if the applicant is required to go offshore to lodge his Subclass 457 visa. It notes the Subclass 457 visa the subject of this review would have ceased on 16 January 2016 had the delegate not made the decision to cancel the visa. The Tribunal accepts the applicant’s explanation for the breach. It notes he continued to work for the sponsor on a full-time basis and that, while he was on duty for several long shifts during the period January to May 2015, he was probably not earning much income from the secondary employment. It considers it would have been prudent for the applicant to enquire with the Department as to whether he had permission to undertake secondary employment. It is not satisfied he was completely unaware of condition 8107 as he indicates. However it is satisfied that he and his family may suffer some hardship if the visa is cancelled, along with his new sponsor. Overall the Tribunal is satisfied that the applicant has complied with other visa conditions over the several years he has been in Australia. It is satisfied his past and present behaviour towards the Department has been appropriate. There are no concerns regarding consequential cancellations under s.140 or that any international obligations would be breached as a result of the cancellation.

27. Having considered the applicant’s evidence and the circumstances overall the Tribunal is of the view in this case that it is appropriate for the applicant, a qualified pastry cook working for an approved SBS in regional Australia, to remain in Australia in order to fill a skills shortage.  Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

28. The Tribunal notes the applicant’s Subclass 457 visa would have ceased on 16 January 2016 had it not been cancelled by the delegate. In these circumstances the applicant may need to consider making another visa application.

    DECISION

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

    Denise Connolly
    Member