1607552 (Migration)

[2016] AATA 4709

1607552 (Migration) [2016] AATA 4709 (25 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr AMAN MARWAH
Mrs AMANDEEP BEDI

CASE NUMBER:  1607552

DIBP REFERENCE(S):  BCC2015/1961033

MEMBER:Antonio Dronjic

DATE:25 November 2016

PLACE OF DECISION:  Melbourne

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

The tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 25 November 2016 at 2:31pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 May 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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 (b) on the basis that the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, namely as a Graphic Pre Press Trades Worker, but has also carried out work as Web Designer and performed other duties not associated with the role of a Graphic Pre Press Trades Worker. The delegate therefore found that the applicant had breached condition 8107 which is attached to the applicant’s visa by specifically breaching paragraph 8107(3)(a)(i).

   Background to the cancellation of the applicant’s visa

3. The primary decision record of 19 May 2016 sets out the reasons for the delegates’ decision to cancel the applicant’s visa. The tribunal summarises those reasons and findings as follows:

   ·On 6 November 2013, the applicant was granted a subclass 457 Business (Long Stay) visa;

   ·The standard business sponsor who nominated the applicant in the most recently approved nomination (approved on 17 October 2013) for the visa is Indsoft Pty Ltd (Indsoft) ;

   ·The occupation listed for the applicant in the most recently approved nomination is Graphic Pre Press Trades Worker;

   ·Between October 2014 and May 2015, the department monitored and assessed the applicant’s role at Indsoft by conducting site visit, interviews and obtaining written responses from the sponsoring business. As a result, the department established that the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, but has also carried out work as  Web Designer and performed other duties not associated with the role of a Graphic Pre Press Trades Worker. The delegate noted in the decision record that the sponsor admitted this to be the case;

   ·A notice of intention to consider cancellation (‘NOICC’) was issued 26 February 2016;

   ·On 11 March 2016 the applicant’s representative responded in writing to NOICC disputing that the ground for cancellation was made up;

   ·The delegate proceeded to cancel the visa applicant’s visa on 19 May 2016.

4. The applicant applied to the tribunal on 26 May 2016for review of the visa cancellation and with his application submitted a copy of the primary decision record.

5. On 8 September 2016, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 10 November 2016.

6. On 25 October 2016, the applicant’s representative wrote to the tribunal advising that on 9 July 2015, the sponsorship bar of 2 years was imposed on Indsoft and that and the sponsoring business lodged a review application with this tribunal. The representative sought to have both review application listed for the hearing at the same time. This request was refused by the presiding member.

7. On 8 November 2016, the applicant’s representative submitted:

   ·The applicant’s statement dated 5 November 2016, claiming that despite the views formed by the department, he has been employed as Graphic Pre Press Trades worker; listing the tasks and duties performed at the work place; disputing that his employer admitted that he has been working as a web designer; stating that during the interview he had with the officers of the department, he indicated that he was learning certain aspects of web design as part of his employer’s desire to increase his skills; stating that he is not a web designer and has no qualifications nor any experience in web design; that his exposure to web design has been confined to graphic design of images that are designed for client’s web sites; that he had completed a certificate III in Graphic Pre Press as well as a Diploma in Multimedia and Graphic Arts which are complimentary qualifications and skills associated with Graphic Pre Press skills; that in order to succeed in the Graphic Pre Press industry he needs to be multi skilled and able to service all clients’ needs; that he is not a web designer but rather a designer of images and graphics that are used for web designing; that his role is confined to image and graphic design that may be used in web site creation and design; that his employer applied for a nomination under subclass 186 visa stream on 23 December 2015; that nomination was refused on 16 September 2016 because his employer was barred from sponsoring; that his employer has applied to the AAT to review the decision to refuse the nomination under the 186 visa stream and that he also applied for subclass 186 visa on 5 March 2016.This application was refused on 26 October 2016.

   ·Statement of applicant’s employer, Mr Mohammed Abdul Mateen dated 5 November 2016; stating that the business operate a printing and graphic design business; listing the services provided by the business as general graphic design work, the design and printing of posters, flyers, business cards, invitations and promotional material, design and printing of stationary for clients (letterhead and envelopes, note pads, etc), logo design; web site design; design and printing of stickers, labels and other promotional material; printing of real estate brochures and flyers and design and printing of invoice books. The business acquired Indian community newspapers ‘India at Melbourne’ in May 2015. He further stated that before employing the nominee, the business was paying contractors to undertake the graphic design work which was expensive for the business; that during the telephone interview he had with the department on 7 January 2015, he stated that the nominee was responsible for the graphic design work for clients and assisting in the printing production process; that the business already employs a web designer and this person is not the nominee; that the web designer and nominee must work in collaboration with each other; that logo’s, artwork and other graphic images must be designed in a manner which is consistent with the web design brief received from clients and in a manner which is suitable for visual media such as web sites; that the nominee’s exposure to web design has been confined to graphic design of images that are designed for client’s web sites; that he accepts that the nominee has some knowledge and skills in 2D and 3D animation, digital imaging and multimedia design, his primary duties are confined to graphic pre-press design and that the fact that he designs images for web sites and multimedia, does not make him a web designer.

   ·Bundle of photographs depicting equipment used by the applicant;

   ·Examples of work performed by Graphic Pre Press Trades Worker;

   ·Indsoft’s financial statements for 2014 and 2015;

   ·Copy applicant’s educational qualifications;

   ·Copy employment agreement between the applicant and the sponsoring business dated 14 February 2016;

   ·Copy letter from Indsoft dated 14 February 2016 outlining the history of the applicant’s employment with the company;

   ·PAYG payment summaries for the applicant for 2014; 2015 and 2016 financial years;

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

9. For the purposes of the tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the tribunal has no jurisdiction with respect to the second named applicant.

10. The applicant appeared before the tribunal on 10 November 2016 to give evidence and present arguments. The tribunal also received oral evidence from Mohammed Abdul Mateen, who is the applicants’ Employer. The applicant was represented in relation to the review by his registered migration agent who attended the tribunal hearing.

11. The tribunal began the hearing by explaining the role of the tribunal and the purpose of the hearing. The tribunal explained why it does not have jurisdiction in respect of the secondary applicant. The tribunal further explained that the review applicant’s visa was cancelled under s.116 (b) of the Act as the delegate concluded that he had not complied with the condition of his visa. Specifically, the 8107 condition to which his visa was subject, prescribes in 8107(3)(a)(i) that the visa holder must work only in the occupation that was listed in the most recently approved nomination.

12. The tribunal raised additional issue with the applicant. In his submissions of 25 October 2015, his representative submitted that on 9 July 2015, the sponsorship bar of 2 years was imposed on the sponsoring business, Indsoft Pty Ltd. The tribunal informed the applicant that another ground for cancellation may be applicable in this case as prescribed by s.116(1)(g). The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43 (1)(l)(IV) is relevant. (the sponsor has been cancelled or barred under section 140M of the Act).

13. The tribunal further explained to the applicant that, if satisfied that the ground or grounds  for cancellation is made it out, the tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy, as set out in the departmental guidelines.

14. The applicant is 32 years of age, married national of India. Prior to arriving in Australia as a holder of a student visa in June 2005, he had completed a Diploma in Electronic Communications and was not employed in India. His sister and parents live in India and he has no relatives in Australia. His wife completed a Bachelor of Arts Degree in India. Her brother and parents also live in India. The applicant and his wife met in Australia and married in July 2014.

15. In Australia, the applicant completed a Diploma in Network Engineering between September 2005 and September 2007. After this, he completed a Diploma in Printing and Graphic Arts (multimedia) course in 2009. In December 2011, he was granted a subclass 485 visa that remained valid until June 2013.

16. In his evidence, the applicant confirmed that he provided his written statement dated 5 November 2016 to the tribunal. The representative handed a signed version of this written statement to the tribunal. The applicant stated that everything stated is true and correct and that he does not want to add anything to or change any part of his written statement.

17. He confirmed that his subclass 457 visa was granted in November 2013; that he received a visa grant notification letter from the Department and that he read and understood that his visa was subject to 8107 condition.

18. He gave evidence that he commenced his full time employment at Indsoft on 25 November 2013 and that his nominated occupation was Graphic Pre Press Trades Worker. At that time the sponsoring business was located at Dandenong Road, Clayton, had one office with two computers and one small ‘Brother’ desktop printer. The business employed two full time employees (managing director and the applicant) and two subcontractors. One of the subcontractors was Syed Hussaini and his was engaged as a web page developer and designer.

19. The applicant stated that in January 2014, the departmental officers came to the business premises and conducted interview with him. He stated that during the interview, he was unable to present any of his art work because his computer ‘crashed’. He informed the officers that his work is combination of tasks undertaken by Graphic Designer and Graphic Pre Press Trades Worker and include graphic design, logo design and printing. He explained that printing work was outsourced by the sponsoring business. In April or May 2015, the business acquired two large printers, one small printer and wide format printer for posters.

20. When ask about the sponsoring business’ web page, the applicant stated that it is currently under construction but that he had no part in creating that website.

21. He stated that he currently holds a bridging visa E and that he applied for and was granted work rights approximately one month after his visa was cancelled. He recommenced his employment at Indsoft in June 2016, after he was granted work rights by the department.

22. The business relocated to Springvale Road in April 2015. It has one office and one warehouse where new printers are located. Only the applicant and his employer are employed by the business. The applicant is still doing graphic pre-press printing and graphic and logo design. Syed Hussaini is still engaged by the business as a subcontractor to undertake web page design and development.

23. I asked if he is aware of any change in the ownership of the business. He stated that to the best of his knowledge the business owner and the Managing Director is still Mr Mateen.

24. I asked the applicant if he knows who Mr Sampangi Satish is. The applicant stated that he does not know who this person is.

    The tribunal’s Oral Invitation to Comment on or Respond to Information:  

25. In accordance with s.359AA of the Act, the tribunal informed the applicant that there was information before the tribunal that would be the reason or part of a reason for affirming the decision that is under review. The information was:

    ·During the telephone interview conducted by the officers of the department with your employer, Mr Mateen in January 2015 he stated that the business did not do much printing at the time and outsourced most of the printing. He further stated that you do the art work and upload it, that you design pictures on the website but not the content and that you scan the artwork and use photo shop.

    ·The tribunal accessed the Indsoft website the day before the hearing. According to the web site, this business specialise in website design, logo design, flyers brochures. The business has links with printing services. I gave a printed copy of the relevant web pages to the applicant.

    ·The tribunal has obtained ASIC’s historical company records for Indsoft Pty Ltd, Mr Mateen ceased to be the director and the shareholder of Indsoft Pty Ltd on 20 May 2016. You have provided his statement of 5 November 2015 in which Mr Mateen stated that he is the director of Indsoft Pty Ltd.

26. The tribunal explained why the above information is relevant to the current review application and consequences if the tribunal relies on the above information. The review applicant confirmed that he understood the information, its relevance to the tribunal’s decision and consequences of the tribunal relying on the information.  The tribunal then invited the applicant to comment on or respond to the information and informed him that he could request additional time to do so.

27. Upon the applicant’s request, the hearing was adjourned for 10 minutes.

28. In his comments on or response to the above information, the applicant stated a Graphic Pre Press Trades Worker does his work before printing. He has to design things for printing. I acknowledge that tasks of Graphic Pre Press Trades Worker and Graphic Designer are interrelated. However, I noted that according to ANZSCO, there is different level of education required for these two occupations; that those two occupations have different skill levels and involve different tasks.

29. The applicant confirmed in his evidence that in November 2013, when he commenced his employment at Indsoft, he did not operate graphic cameras or plate making equipment to reproduce images from film to printing plates as the business did not have this equipment. He confirmed that he did not carry out digital and chemical proofing from digital systems. He did not undertake preparing and exposing carbon tissue for cylinders.

30. I gave the applicant printed copies of the ANZSCO job descriptions for both Graphic Pre Press Trades Worker and Graphic Designer.

31. I noted that it was not possible for the applicant to undertake most of the duties of a Graphic Pre Press Trades Worker simply because the business did not have the equipment that was necessary to undertake these tasks. The applicant conceded this to be the case and stated that he was only doing designing work. He reiterated that the sponsoring business purchased printing machinery in April or May 2015.

32. I explained to the applicant that I am not bound by ANZSCO description but that ANZSCO provides useful guidance as to what are the duties of a Graphic Pre Press Trades Worker.

33. The applicant stated that he was told that the company’s website will be updated and for that reason he did not have a look at it at all. He added that he only design flyers brochures and advertisements for the pre-press work.

34. The applicant further stated that he had no knowledge that Mr Mateen is no longer the director and the shareholder of Indsoft. He stated that his annual salary at Indsoft is $52,000 per annum and is still paid those wages. He stated that Mr Mateen comes to work every day and looks after the printing work.

35. I explained to the applicant that, based on the evidence before me, I am satisfied that the grounds for cancellation in s.116(1)(b) and 116(1)(g) are made up and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

36. I invited the applicant to state if there any other circumstances he wants me to consider, apart from those stated in submissions provided by his representative. The applicant stated that he did not read the representative’ submissions so I decided to read it to the applicant.

37. The applicant stated that he does not wish to raise any other circumstances with the tribunal.

38. Upon my invitation, the applicant’s representative submitted that the applicant may have performed complimentary work in addition to his primary duties at the sponsoring business. He submitted that there is a fine line between occupations of Graphic Pre Press Trades Worker and Graphic Designer and that duties listed in the ANZSO are not exhaustive but only indicative list of duties for these occupations.

39. He submitted that the applicant answered the tribunal questions frankly, that there was no deliberate breach of condition by the applicant; that he simply did what he was asked to do by his employer. I indicated that I accept that the applicant is a credible witness. I indicated that I accept that it was not deliberate breach of condition but it was the breach nevertheless.

40. The representative invited the tribunal to exercise its discretion and reinstate the applicant’s visa. He referred to other decisions made by this tribunal acknowledging that I am not bound to follow them.

    Oral Evidence of Mr Mateen

1. Mr Mateen stated in his evidence that there was a recent change in the business ownership and they he is planning to split up the business by separating newspapers from the printing press side of the business.

2. He stated that he is presently working as a Manager of Indsoft Pty Ltd. He commenced this job recently after the business changed business directors and shareholders. He stated that he is no longer a director or shareholder of the business.

3. He stated that he sold his business last month to Mr Sampangi Satish for $15,000. In addition, the new owner undertook to pay the witnesses’’ tax debt of $13,000 and business debt of $3,000. He only sold the newspaper (Indian View) part of the business to the new owner.

4. He gave evidence that he did not inform Mr Aman that he had sold the business. I asked him why. He stated that the intention is to set up the new company for printing press and separate that side of the business from newspapers. In the future, the witness stated that he will be looking after the printing press.

5. I note that according to the evidence before me, the change in business ownership happened in May 2016. He explained that he did not inform the applicant of sale of business because he has not registered the new company jet. The new business owner is still overseas and he is still running the company. He was planning to inform the applicant once the new owner arrives in Australia and take over the business.

6. He gave evidence that the business nominated Ms Patel in late 2013 for the position of a Graphic Pre Press Trades Worker at Indsoft but the nomination was refused by the department. He then stated that he is not sure if Ms Patel was nominated for the position of a Graphic Pre Press Trades Worker or Graphic Designer.

7. He gave evidence the business also nominated Ms Kaur in late 2013 or early 2014 for a position of a Graphic Pre Press Trades Worker and that the business decided to withdraw the nomination.

8. In his evidence, the applicant confirmed that he provided written, unsigned statement dated 5 November 2016 to the tribunal. I gave him a copy of the statement and after reading it the witness confirmed that he wrote it. He confirmed that everything stated is true and correct and that he wants to make one change to the first paragraph of his written statement by amending the word Director and replacing it with word Manager. He then adopted and signed the statement.

9. The witness stated that he did not sign any employment agreement with the new business owner for the position of a Manager but has a verbal agreement that he will be employed as a Manager until the new owner arrives in Australia (by the end of 2016) and will be paid around $60,000 per year. The witness is not certain if the new owner is an Australian citizen or permanent resident.

10. Mr Mateen stated that he intends to set out a new business. He gave evidence that the applicant will continue to work for Indsoft.

11. The witness confirmed that he was interviewed by the department in January 2015 and he stated during the interview that the business retains the services of a web designer (Syed Hussaini) and that the applicant designs the logos that are uploaded onto websites. He confirmed that this is graphic design type of work. He also stated that the applicant does not do any computer programming for the web sites.

12. He gave evidence that the business moved into new premises in October 2015. In June 2015 he invested approximately $30,000 of his own money in purchasing second hand printers. That equipment was not sold to the new business owners.

13. He explained that he stared the Indian View Magazine in August 2013; that Indsoft is not printing the magazine but is outsourcing printing to another company. The equipment he purchased in June 2015 is used to print flyers, brochures and posters but not the newspapers.

14. I noted that it is uncertain what will happen with the applicant’s employment at Indsoft once the new owner takes over the business. The representative submitted that the business is still operating and that the applicant is still being paid his wages.

15. The representative requested and I granted the applicant additional time until 21 November 2016 to provide post hearing submissions.

16. On 21 November 2016, the applicant’s representative provided the following submissions in relation to the tribunals discretion:

    ·The review applicant is a long-time resident of Australia. He has lived in Australia for more than 11 years;

    ·The review applicant presented as a genuine applicant and employee and presented as a credible applicant who answered all questions asked of him in a frank and honest manner;

    ·He is not a Printer and is not required to print as part of the ANZSCO description of duties associated with the occupation of Graphic Pre-Press Trades person;

    ·He is not a Web Designer and is not qualified to design web sites. His evidence was, that even if asked to design a web site he would not know how to do so;

    ·He is not a Graphic Artist/Designer and does not hold a Bachelor’s degree in Graphic Arts as required by ANZSCO;

17. It was further submitted that:

    ·There is an obvious overlap between the two occupations. Both involve the design of images and texts for reproduction;

    ·The evidence of the employer and the review applicant is that he is the only person employed to perform the role of Graphic Pre Press Trades Worker. He has obviously performed this role in the absence of anyone else doing so. ANZSCO is merely a descriptive of broad job functions relevant to each occupational group;

    ·The review applicant has only worked for the same employer since being granted his 457 visa. He has not driven taxi’s or had a second job, he has not deliberately or wilfully breached any of his visa conditions, he has complied with the conditions of all previous visas granted to him and he has always been cooperative with the department;

    ·The decision which we have referred the tribunal to in our previous written submissions have dealt with several tribunal decisions where the tribunal was prepared to exercise its discretion not to cancel a 457 visa even where there was what may be called obvious and blatant and even deliberate breaches of condition 8107;

    ·If the review applicant visa was to remain cancelled, he would be forced to move back to India after having spent the last 11 years in Australia studying and trying to build a career. The review applicant is married and his wife would also be forced to leave Australia with him. The review applicant met his wife in Australia and they were married in Australia;

    ·If the review applicant was to retain his 457 visa, then he has access to a range of options. He could apply for another 457 visa after having secured a new employer who is willing to sponsor and nominate him given his current employer has a sponsorship ban. There are a range of options available to him that he could exercise;

    ·On a scale of 8107 breaches it is submitted that any breach of condition 8107 in the applicant’s case can properly be described as falling on the lower end of the scale; and

    ·On departing Australia on a BVE if his visa was to remain cancelled, the review applicant and his wife would be subject to public Interest criteria 4014 which would have the effect of barring him from lodging another off shore 457 visa for 3 years. Thus, the detriment and hardship that would ensue for the applicant would far outweigh the extent of any breach of condition 8107.

18. 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

19. 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 grounds set out in s.116(1)(b) and s.116(1)(g). If satisfied that the ground or grounds 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?

20. 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.

21. In this instance I am satisfied on the evidence that the condition 8107 was attached to the applicant’s visa. This condition in 8107(3)(a)(i) requires the visa holder to work only in the occupation listed in the most recently approved nomination.

22. Information in the delegate's decision record, which was submitted by the review applicant to the tribunal, indicates that the review applicant's sponsoring employer in the most recently approved nomination (19 June 2013) for the visa was Indsoft Pty Ltd. The occupation listed in the approved nomination was Graphic Pre Press Trades Worker.

23. The applicant gave evidence and conceded in his submissions that his work at the sponsoring business is combination of tasks undertaken by Graphic Designer and Graphic Pre Press Trades Worker and includes graphic design, logo design and printing. I am satisfied on the evidence before me that the applicant did not work only in the occupation listed in the most recently approved nomination but also performed some tasks of a Graphic Designer. Accordingly, I am satisfied that the ground for cancellation in s.116(1)(b) exists.

24. The applicant’s representative submitted that on 9 July 2015, the sponsorship bar of 2 years was imposed on Indsoft and that and the sponsoring business lodged a review application with this tribunal.

25. Accordingly, a ground prescribed in r.2.43(1)(l)(iv) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder. For these reasons, the tribunal is satisfied that the ground for cancellation in s.116(g) exists. As neither of the grounds stated above 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 acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

28. Nevertheless, the tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the tribunal has also taken into account the submissions and evidence it received from the applicant.

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

29. The tribunal finds that the purpose of the applicant’s stay in Australia was to work as a Graphic Pre Press Trades Worker on a temporary basis. Soon after his visa was cancelled, the applicant recommenced his employment at Indsoft. He is still employed by the sponsoring business and according to Mr Mateen’s evidence he will continue to be employed at the business despite of change in business ownership.

30. I have taken into consideration the fact that the applicant’s visa would, but for the cancellation, ceased on 6 November 2017.

31. The purpose of granting a subclass 457 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 Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The tribunal finds that this purpose was not lost as the applicant is still needed and is working at Indsoft. This is the consideration that favours the reinstatement of the applicant’s visa.

32. If the new business owner decides not to retain the services of the applicant, the tribunal note that it will be open for the department to cancel the applicant’s visa again.

    The reason for and extent of the breach & Circumstances in which ground of cancellation arose.

33. The applicant’s visa was subject to 8107 condition and, based on his oral evidence, I am satisfied that he was aware of the visa conditions attached to his subclass 457 visas.

34. The ground for cancellation arose because the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, but has also carried out work as a Graphic Designer.

35. I accept the applicant’s claims that there is a fine line between occupations of Graphic Pre Press Trades Worker and Graphic Designer and that duties listed in the ANZSO are not exhaustive but only indicative list of duties for these occupations. I further accept that there is an obvious overlap between the two occupations as both involve the design of images and texts for reproduction.

36. I accept that the applicant performed complimentary work in addition to his primary duties at the sponsoring business. I accept that tasks of Graphic Pre Press Trades Worker and Graphic Designer are interrelated despite different level of education required for these two occupations.

37. I am satisfied on the evidence before me that the business retained the services of Mr. Syed Hussaini to undertake web design and that the visa holder was the only person employed to perform the role of Graphic Pre Press Trades Worker at the relevant time.

38. For this reason I am satisfied that in this instance, there was no significant or deliberate breach of condition 8107. This is the consideration that favours the reinstatement of the applicant’s visa.

    Past and present conduct of the visa holder towards the department

39. I accept that the applicant has not previously breached visa conditions and has been co-operative with the Department. I also accept that the applicant did not breach conditions of his bridging visa ‘E’ as he did not work from the time his subclass 457 visa was cancelled until he was granted bridging visa ‘E” with work rights by the department. This is the consideration that favours the reinstatement of the applicant’s visa.

    Degree of hardship that may be caused

40. The applicant claims that the visa cancellation would cause hardship to himself and his wife as she would also be forced to leave Australia with him. The review applicant met his wife in Australia and they were married in Australia. It was submitted that the applicant lived in Australia for more than 11 years.

41. I accept that leaving Australia may involve some hardship to the applicant and his wife but I am of the view that this hardship would not be significant. I do not accept that the applicant would not be able to re-establish himself in India, given his qualifications and work experience.

42. Balanced against any potential hardship to the applicant and his wife that may result from the visa cancellation, is the fact that the applicant was granted a temporary visa which creates no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis.

    Whether there are mandatory legal consequences, such as whether cancellation would
    result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the
    Act which prevent the person from making a valid visa application without the Minister’s
    Intervention

43. The applicant is currently holding a bridging visa ‘E”. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case, he and his wife have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

44. I do not accept the applicant’s representatives’ submissions that, on departing Australia on a BVE if his visa was to remain cancelled, the applicant and his wife would be subject to public Interest criteria 4014 which would have the effect of barring him from lodging another off shore 457 visa for 3 years.

45. I am satisfied that, if the applicant’s visa remains cancelled, he will not be affected by a ‘risk factor’ prescribed in Schedule 4013 or schedule 4014 and find that this consideration does not favours the reinstatement of the applicant’s visa.

    Whether there would be consequential cancellations under s.140

46. The tribunal notes that there are consequential cancellations of visas for the applicant’s wife. Whilst the applicant’s wife’s visa is also cancelled as a consequence of this cancellation, the tribunal notes that the consequence will not result in separation of the applicant from his wife.

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

47. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

48. There is little in the evidence before the tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

    The impact on any victims of family violence

49. There is no evidence before the tribunal regarding this matter.

50. Having regard to the findings above and the unique circumstances of the case as a whole, the tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa. The tribunal finds that not cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

52. The tribunal has no jurisdiction with respect to the second named applicant.

    Antonio Dronjic
    Member