1511968 (Migration)

[2016] AATA 3632

1511968 (Migration) [2016] AATA 3632 (29 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nguyen Anh Duy To

CASE NUMBER:  1511968

DIBP REFERENCE(S):  BCC2015/2145618

MEMBER:Lesley Hunt

DATE:29 March 2016

PLACE OF DECISION:  Brisbane

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 29 March 2016 at 11:08am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 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 was found to have not complied with a condition of the visa – condition 8107. Condition 8107 states that the holder must work only in the occupation listed in the most recently approved nomination for the visa holder.

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

4. The applicant appeared before the Tribunal on 17 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Hien Thi Nguyen, the human resources manager and legal adviser at the sponsoring business, and Ms Phan Thi Dieu Thuy, the accountant at the sponsoring business. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

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)(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?

   Section 116(1)(b) - non-compliance with conditions

8. 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 was 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 visa holder.

9. The sponsor for the visa is FW Viva 9 Pty Ltd., a company which operates retail food and groceries stores in Redbank, Canungra and Burpengary in Queensland.  On 16 August 2013 FW Viva 9 Pty Ltd was approved to employ a person in the position of Finance Manager.  According to the Australian and New Zealand Standard for Classification of Occupations (ANZSCO) the role of a finance manager is to plan, organise, direct, control and coordinate the financial and accounting activities within the organisation.  The required skill level is commensurate with a Bachelor Degree or higher qualification; or at least 5 years relevant experience.  The tasks of the finance manager are listed at ANZSCO code 132211 as follows: 

   ·Determining, implementing, monitoring, review and evaluating budgetary and accounting strategies, policies and plans in consultation with other Managers;

   ·Providing financial information and interpreting the implications for business performance and funding needs;

   ·Coordinating the development, implementation and monitoring of accounting systems;

   ·Directing the preparation of financial reports summarising and forecasting the organisation’s financial position such as income statements, balance sheets and analyses of future earnings and income;

   ·Assessing capital finance proposals and the financial status of operational projects

   ·Advising on investment strategies, sources of funds and the distribution of earnings;

   ·Delivering long range profit forecasts, budgeting and financial reporting; and

   ·Ensuring compliance with financial legislation and standards.

10. On 6 February 2014 and 26 May 2014 departmental officers conducted site visits at the Redbank Plains store of FW Viva 9 Pty Ltd.  The officers determined that the duties of the applicant were more in line with those of a supervisor, products buyer or investment marketer rather than a finance manager, and the decision was made to cancel the sponsorship of the sponsoring business and the applicant’s subclass 457 visa.

11. The nominating business appealed the decision to cancel the business sponsorship to the Migration Review Tribunal (differently constituted).  On 12 May 2015 the Tribunal set aside the decision and substituted a decision barring the business until 25 October 2015 from sponsoring more people for subclass 457 Business (Long Stay) visas and barring the sponsoring business until 27 April 2016 from making future applications for sponsorship approval as a standard business sponsor. 

12. The review applicant, Mr To, appeared at the hearing in relation to his visa cancellation and provided the following information in response to questions from the Tribunal.  He clarified that he had been in Australia since July 2007 and first came to Australia as an overseas student.  He successfully completed a Bachelor of Business at the Queensland University of Technology without any difficulty and was always compliant with conditions on his student visa.  He was granted a subclass 457 visa in 2013 and it was due to cease on 30 August 2017.  However it was cancelled on 28 August 2015.

13. The applicant confirmed that he is currently on a Bridging E (Class WE) subclass 050 visa and has permission to work.   He stated that he first started working with FW Viva 9 Pty Ltd at Redbank Plains in 2012 when he was a student.  It was casual work and he was mainly in the fruit and vegetable section of the store.  After he completed his tertiary studies he applied for, and was successful in being appointed to the position of finance manager with FW Viva 9 Pty Ltd.  He stated that the business employs about 70 staff at the Redbank Plains store and has two other stores.  He described the function of the various staff members and stated that there are five managers – the human resources manager, marketing manager, retail manager and assistant manager and himself as finance manager. 

14. The applicant outlined the tasks he undertakes in a typical days work and these included monitoring current sales and cash flow; checking the accounts; planning the budget; developing and providing investment advice.  He referred to the net profit of the business in the years 2013, 2014 and 2015; described the reasons for fluctuations in profit and loss; and outlined his ideas for different sources of funding and ways of cost cutting.  The applicant submitted copies of reports on profit and loss forecasts for 2016, 2017 and 2018; reports on the impact of re-opening the delicatessen section and other matters.  The applicant spoke about the reasons for the loss suffered by the business in 2013 and 2014 and the way in which the business was able to improve financially in 2015 and 2016.  He also spoke about impending threats to the business – namely the opening of other supermarkets nearby – and his ideas for minimising the financial risk to the business arising from the competition.  He stated that he met with other managers at least once or twice a week and provided the financial information for their meetings.  This information was usually provided verbally because it was compiled and stored on the computer data base and was easily accessible to the other managers.

15. The applicant stated that he did not decide on the product mix for the store; however he made suggestions regarding possible sources of funds through the purchasing and selling of various products. This advice included when to buy the products as through his research he knew when products were available at a low price and when it was not wise to buy them because the price was too high.  He stated that all his advice regarding product purchasing was based on financial implications and sourcing of funds.

16. The Tribunal put information to the applicant that it had obtained from the Tribunal’s decision record dated 12 May 2015 in relation to the cancellation of the business sponsorship.  The Tribunal put this information to the applicant under the provision of section 359A of the Act, and told the applicant that if the Tribunal relied on the information it would be the reason or part of the reason for affirming the delegate’s decision to cancel his visa.  The Tribunal advised the applicant about the relevance of the information and that he could ask for additional time in which to respond to the information.  

17. The information is in the findings outlined in the previous Tribunal’s decision record. The information is the Tribunal’s finding that: “Mr To does some work related to the finances of the business, but the majority of his work is finding and negotiating with suppliers.  The actual duties of Mr To are more related to the duties of a retail manager determining product mix and formulating purchasing and marketing policies”.  The Tribunal concluded that Mr To had worked in an occupation other than the nominated occupation of finance manager and  was not satisfied that Mr To only worked for the business in the nominated occupation of finance manager. 

18. The applicant responded stating this was a misunderstanding of his role.  He worked with the retail manager, not as a retail manager.  Any work about determining product mix and purchasing and marketing policies was done from the perspective of providing financial information and advice. 

19. A statutory declaration from Sien Van Nguyen, a Director of the business and the employer of the applicant, was submitted in support of the review application.  Mr Nguyen states in part: “Since the MRT decision of 12 May 2015 my company has been vigilant in making sure Andy’s work has been solely that of a “finance manager” and that the management team has ensured that Andy concentrates on financial analysis, budgeting and risk analysis.  The business has suffered a down-turn and it is even more imperative that Andy stays on given current economic conditions and the threat to the business of not having someone that understands business and finance.  Andy is the finance manager and there may have been some overlapping of duties and tasks but since the last Tribunal hearing last May, the management team continually reminds Andy that his role is that of a finance manager and he has followed that direction.”

20. Ms Nguyen, the Human Resources Manager, appeared as a witness at the hearing.  She stated she is one of the Directors and owners of the business.  She clarified her role, stated that she works full-time and started work with the business in 2010 when the Directors purchased the business.  As a lawyer she handled the purchase contract.  She outlined when she first met the applicant in 2012 when he started as a casual employee working on the floor in various sections of the food store.  She stated that the Directors treat their staff well as they want them to continue with the business.  She outlined the tasks and responsibilities undertaken by the applicant in his role as financial manager.  She stated that they were making a loss when they first took over the business and she identified the ways in which they were able to turn the business around so that it is now achieving a profit.  She stated that the applicant was instrumental in achieving that turnaround and they now have a significant improvement in the finances of the business. 

21. Ms Nguyen identified the advice provided by the applicant, the risks he was able to identify, and his strategies for managing the risks.  She stated that he is only involved in determining product mix and stock levels in relation to budget control and financial management and he works closely with the retail manager in this regard.  Ms Nguyen stated that the business relies on the applicant a lot and if he did not continue with the business they would have to hire and train another person and this would affect the business significantly. 

22. Ms Phan, the accountant, told the Tribunal how she and the applicant work closely together, that part of his role is to identify any mistakes in the accounts, ensure compliance with Australian Taxation Office requirements, any identify financial risk areas.  She confirmed that the applicant’s knowledge and expertise would be missed if he was not able to continue to work with the company, and this could put the company at risk, and this would in turn lead to job losses in the local area. 

23. The Tribunal accepts that the applicant understands the role of financial manager and that he has the knowledge, qualifications and expertise required to fulfil the role of financial manager.  After assessing all the evidence, including the findings of the previous Tribunal that the applicant has not only worked in the role of financial manager, and the statutory declaration from Mr Nguyen, the employer, which indicates that there may have been some overlapping of duties and tasks, the Tribunal finds that the applicant has undertaken work outside the role of finance manager.  The Tribunal accepts that the applicant no longer works outside the role of finance manager and his work is solely focussed on the tasks of a finance manager at the present time and this has been the case since May 2015.  

24. The Tribunal finds therefore that the applicant has not complied with condition 8107 which requires that he work only in the occupation listed in the most recently approved nomination. 

25. 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

26. 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’.

27. The Tribunal considered the following matters.

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

28. In this regard the Tribunal notes that purpose of the visa is to fill a skill shortage.  The evidence indicates that the applicant is able to fulfil the role of finance manager.  The Tribunal is satisfied that he has the relevant qualifications and knowledge.  The witnesses were clear and definite in their opinion that the business needs the applicant’s expertise and that the business would suffer if the applicant was not able to continue as the finance manager in their employment.  The witnesses were clear, forthright and persuasive in giving their evidence.  While the Tribunal has formed the view that the witnesses may have overstated the importance of the applicant’s role in turning the business around financially, the Tribunal does accept that the witnesses believe that the applicant’s role as financial manager is important to the business and its future.  After assessing all the evidence the Tribunal is satisfied that there is a compelling need for the applicant to remain in the position.

    The extent of compliance with visa conditions

29. There is no evidence before the Tribunal to indicate that the applicant did not comply with conditions on visas he has previously held in Australia since first arriving in July 2007.  With regard to the subclass 457 visa related to this review, the Tribunal finds there has been non-compliance with condition 8107; however in the Tribunal’s view the non-compliance has not been substantial.  Whilst the applicant has worked outside the role of finance manager, he has also undertaken the tasks of the finance manager.  This was stated by the previous Tribunal in its decision of 13 May 2015 and confirmed by the applicant and the witnesses at the hearing on 17 March 2016 and in the support letters.  The Tribunal accepts that this is the case. 

30. The Tribunal is satisfied that the non-compliance with condition 8107 has not been extensive and that it has not continued past May 2015.

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

31. The Tribunal put to the applicant that cancellation of his visa would mean he would have to depart Australia but he could apply offshore for a new visa.  The applicant referred to the hardship that would be caused to the business if he was not able to continue in the role; particularly given the competition coming from other supermarkets which are about to open in the area.

32. The applicant stated that he has studied for 9 years in Australia and wants a career in the finance industry in Australia.  He has worked hard and has planned his future in Australia.

33. The applicant also stated that he recently married and his wife is an overseas student in Australia.  If he had to go offshore and she went with him her studies would be interrupted, or she might not be able to go with him.  Either way, this would cause them both a lot of hardship.  The applicant submitted a marriage certificate indicating that he married Thi Phuong Lan Phan on 7 July 2015 and the marriage was registered in Queensland on 10 July 2015. 

34. The Tribunal accepts that emotional hardship would be caused to the applicant and his wife if his visa remained cancelled and he had to depart Australia. The Tribunal also accepts that a level of hardship would be caused to the business if the applicant’s visa remained cancelled. 

    The past and present conduct of the visa holder towards the department

35. There is no evidence to indicate that the applicant has been uncooperative with the Department when he was the holder of a student visa in Australia.  It is noted that he did not reply to the Notice of Intention to Consider Cancelling his subclass 457 visa; however at the hearing the representative appeared to accept responsibility for that. 

36. There is no evidence before the Tribunal to indicate that cancellation of the applicant’s visa would result in his detention.  There are no dependent family members who would be subject to consequential cancellation under s.140 of the Act.  There is no evidence to indicate that Australia’s international obligations would be breached as a result of the applicant’s visa cancellation. 

37. In exercising its discretion the Tribunal notes that the non-compliance was not extensive, the applicant has no history of non-compliance with previous visas he has held, and hardship would be caused to the applicant, his wife and his employer if the visa was cancelled. 

38. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Lesley Hunt
    Member