1600502 (Migration)

[2016] AATA 3941

1600502 (Migration) [2016] AATA 3941 (2 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HARWINDER SINGH

CASE NUMBER:  1600502

DIBP REFERENCE(S):  BCC2015/1352415

MEMBER:Jennifer Ciantar

DATE:2 June 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 02 June 2016 at 3:05pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 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. On 24 December 2015 the applicant was notified of the intention to consider cancellation of his visa. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8107 of his visa. 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 12 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

5. 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

6. 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.

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

   Does the ground for cancellation exist?

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 holder, and must work only in a position in the business of the sponsor or an associated entity of the sponsor, and that if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

9. 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. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa is Sukhbir Kaur trading as Budget Auto Repairs and the nomination was approved on 6 November 2013. The delegate found that on 30 April 2015 the Department was advised by the Northern Territory Department of Transport that the applicant had been working for Alice Springs taxis as a taxi driver between 21 April 2015 and 28 April 2015. The delegate found that the applicant had been working for an employer other than the sponsor or an associated entity of sponsor.

10. As discussed with the applicant, he confirmed to the Tribunal that he was granted the subclass 457 visa to work as a mechanic for Budget Auto Repairs. In addition, he had covered some shifts for a friend who was employed as a taxi driver. He only worked for about one week while his friend was overseas, as his friend had been at risk of losing his job if his shifts were not covered while he was out of the country. The applicant claimed that he had not been paid for his work as a taxi driver. His friend leases the taxi from Alice Springs taxis but the applicant does not know who owns the taxi. The applicant stated he was not paid for driving the taxi and the income earned from the taxi was deposited into his friend’s account. The Tribunal put to the applicant that even if he was not paid, as the definition of the term ‘work’ means an activity that, in Australia, normally attracts remuneration, the Tribunal was likely to take the view that driving a taxi is an activity that normally attracts remuneration and therefore can be classified as work even if the applicant was not paid. The applicant stated that he had continued to be employed full-time as a motor mechanic.

11. The applicant confirmed that he had held a taxi licence from 2002 and had provided the license information to Alice Springs taxis so that he could be registered. Later he had the licence cancelled. The applicant stated that he had not been aware that he was doing anything wrong as his purpose had not been to earn money but simply to give his friend some help. His friend had gone overseas for three or four weeks and another driver had covered some shifts but there had been a few shifts for which his friend could not find a replacement and this was why the applicant had given him some help. The applicant stated that he had covered his friend’s shifts over six or seven days.

12. The Tribunal put to the applicant that information had been given to the Department on 15 April 2015 regarding the applicant driving a taxi. The applicant stated that he only started driving the taxi on 21 April 2015 and he had not registered his licence with the taxi company until that day or a day earlier, on 20 April 2015, so he does not understand how an allegation could have been made on 15 April 2015.  

13. The Tribunal obtained the records from the NT Department of Transport which indicate that the applicant had been working for Alice Springs taxis as a taxi driver between 21 April 2015 and 28 April 2015. Even if the applicant was not paid, the Tribunal is of the view that driving a taxi in these circumstances, which required the applicant to hold a taxi license and to register with Alice Springs Taxis, is an activity which, in Australia, would normally attract remuneration.

14. 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 in a position of the business of the sponsor. The applicant has provided evidence that the approved sponsor is Budget Auto repairs and the approved occupation was motor mechanic.  

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

16. 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

17. 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’.

18. The applicant stated that his subclass 457 visa had been in effect until November 2017. There is no dispute that the applicant was working as a taxi driver in the NT from 21 April to 28 April 2015 although the applicant claims he was not paid for his work. The Tribunal has also examined the driver shift records from NT Department of Transport, which state that the applicant was employed in this period. 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 the approved sponsor confirming that he continued to work for Budget Auto Repairs on a full-time basis, in Alice Springs NT until his visa was cancelled. He provided bank statements showing that his wages were deposited by Budget Auto Repairs in the period he was driving a taxi.

19. The Tribunal has also taken into account the oral evidence of the applicant, confirmed by the employer, in a letter dated 29 March 2016,  that the position of motor mechanic is still available to him, and after the visa was cancelled the Department granted him work rights and he continues to work as a motor mechanic for the approved sponsor. The Tribunal accepts that there would be a very negative impact on the business if the applicant’s visa remains cancelled. He has worked for the sponsor for two years and the sponsor is located in a regional area where it is very difficult to find motor mechanics. The sponsoring business also operates taxis and the applicant is employed to service and repair their taxis but he claims he has never driven the taxis of the sponsor and there is no evidence that he has done so. When the applicant’s visa was cancelled, the sponsor had to temporarily close down until the applicant’s work rights were restored. The applicant said that his visa had been cancelled on 12 January 2016 but his work rights were restored at the end of February and he resumed work in early March 2016. The Department had agreed to give him back his work rights because the workshop had had to close during the time that the applicant was not allowed to work, as he is the only employed motor mechanic in the business. The employer has previously advertised for motor mechanics but has found it difficult to retain mechanics for more than about six months. The sponsoring employer did have another mechanic but that person left and the employer relies on the applicant.

20. The Tribunal accepts that Alice Springs is a remote rural location where it can be expensive to live and where it can be difficult for employers to attract certain skills. The employer has written that the applicant has undergone extensive training and is now able to work independently and competently and it would be very difficult if not impossible for the employer to find someone with similar skills. The applicant states that he has made a commitment to stay working for the sponsoring employer for at least four years.

21. 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. The applicant said that he first came to Australia in 2009 on a student visa. He initially commenced a commercial cookery course but was not interested so he changed to a diploma course which enabled him to work as a motor mechanic and he completed his course in 2012. He first worked for tyre power and another employer on the Gold Coast and then moved to Alice Springs. He would suffer hardship if his visa remains cancelled because he has been in Australia for a long time and he has a good job. He last visited India in 2014 but he has never worked in that country and it would be difficult for him to find employment there.

22. 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. The Tribunal has taken into account that the breach was of one week’s duration and that the Department has acknowledged the negative impact on the sponsoring employer by restoring the applicant’s work rights.

23. The applicant also stated that he does some volunteer work for the local Sikh Temple which provides a free food service and the applicant helps out a few days each week. The applicant provided the Tribunal with a reference letter dated 6 May 2016 from the President of Central Australia Sikh cultural centre.

24. The delegate notes there is no evidence that the applicant has been uncooperative with the Department.

25. The applicant also stated that he is single. There is no evidence that there would be consequential cancellations under s.140.

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

27. The Tribunal has considered the evidence overall and it is satisfied that, by virtue of his employment with Budget Auto Repairs in a skilled occupation, the applicant is currently meeting a demand for a motor mechanic, 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 applicant stated that he had been intending to apply for permanent residence and his current employer had agreed to sponsor the applicant for a subclass 187 visa.

28. 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 motor mechanic 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.

    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.

    Jennifer Ciantar
    Member