Afzal (Migration)

[2019] AATA 1625

Afzal (Migration) [2019] AATA 1625 (15 January 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Waseem Afzal

CASE NUMBER:  1719455

DIBP REFERENCE(S):  BBC2017/2033136

MEMBER:John Cipolla

DATE OF DECISION:  15 January 2019

DATE CORRIGENDUM

SIGNED:19 June 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision: The ‘Date’ on the covering page should read 15 January 2019.

John Cipolla
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Waseem Afzal

CASE NUMBER:  1719455

HOME AFFAIRS REFERENCE(S):           BBC2017/2033136

MEMBER:John Cipolla

DATE:15 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 15 January 2019 at 9:29am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Transport Company Manager – applicant performed tasks outside position definition – tasks akin to Truck or Delivery Driver – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116
Migration Regulations 1994 (Cth), Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 August 2017 made by a delegate of the Minister for Immigration and Border Protection 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(b) on the basis that the applicant was not performing the tasks of a Transport Company Manager which was the position that he was nominated to work in for the sponsoring business. 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 14 January 2019 to give evidence and present arguments.

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

   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(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?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(a)(i) attached to the applicant’s visa. This condition requires that an applicant must work only in the occupation listed in the most recently approved nomination.

7. The evidence before the Tribunal indicates that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa which was dated 1 August 2017. The NOICC indicates that the applicant was granted a Subclass 457 visa on 21 March 2015 and had been sponsored by MFL Transport Pty Ltd to work in the position of Transport Company Manager. The NOICC notes that the sponsoring business when submitting the nomination application provided a list of the role and responsibilities of the position. The NOICC also makes reference to the ANZSCO occupational dictionary which outlines the tasks attributed to this position.  The NOICC states that on 25 January 2017 and again on 7 March 2017 Departmental officers conducted a telephone interview with the sponsor and the applicant. During the telephone interviews the applicant and sponsor are recorded as saying that the applicant drove a vehicle/truck between 3 to 6 hours per day as there were not sufficient tasks for him to perform in the current nominated position. The Departmental officers concluded on the basis of this interview that the applicant was not performing the work in the occupation listed in the most recently approved nomination. The Departmental delegate concluded that the applicant had not complied with paragraph 8107(3)(a)(i) of condition 8107 attached to his visa. The applicant was invited to comment on whether he believed that the ground for cancellation existed and having regard to the relevant considerations whether or not the visa should be cancelled.

8. The applicant responded to the NOICC in an email dated 7 August 2017. The applicant notes that he was granted a visa on 13 March 2015 to work in the position of Transport Company Manager. The applicant notes in his response that “I commenced working with MFL Transport Pty Ltd where my duties included being in charge of the day-to-day operations of the company, managing the team of MFL Transport employees, making sure deliveries are dispatched appropriately, arranging trainings(sic) and to check that everyone is compliant. Although, I was managing my duties but along with that I commenced driving the truck with the same employer as well when required. This additional duty assisted me in sustaining my current job and helped me to manage my expenses. I have been supporting my family with my earnings. After the death of my father I had to take all the responsibility of our household with my mother. I am the oldest among my siblings. I have 4 younger siblings who I am supporting with the assistance of my mother. My mother sent me to Australia utilising our family assets in 2012”.  The applicant goes on to state that given his circumstances he requested the Department to give him further time to find suitable employment where he could utilise his skills as a Transport Company Manager and that he believed at that point in time that he would be able to find suitable employment within 8 to 12 weeks.

9. The Departmental delegate considered the applicant’s response and the relevant considerations as to whether or not the visa should be cancelled. On 24 August 2017 the delegate proceeded to cancel the applicant’s visa finding that the applicant had not complied with condition 8107 attached to his visa and that having regard to the factors as to whether or not the visa should be cancelled, that the factors for cancellation outweighed those not to cancel.

10. The applicant lodged an application for review with the Tribunal on 25 August 2017.

11. The Tribunal conducted a hearing on 14 January 2019 and the applicant attended the hearing. At the outset of the review hearing the Tribunal went into detail about the issues in review and explained the process of merits review.

12. The applicant provided his personal details. The Tribunal noted that the applicant had been granted a subclass 457 Visa on 21 March 2015 to work in the position of transport company manager, a visa that was valid for a period of 4 years until March 2019. The applicant confirmed that this was correct.

13. The Tribunal asked the applicant when he first came to Australia and he advised in December 2012 as the holder of a subclass 572 student visa. The Tribunal asked the applicant about his study history. The applicant advised that he completed a one-year diploma of business which he completed successfully. The applicant then enrolled in a Bachelor of Accounting at Holmes College a course of 3 years duration. The Tribunal asked the applicant whether he completed this course and the applicant stated that he studied for around 12 months but failed subjects and ceased studying after one year. The applicant advised that he then applied to work for an Australian business as a Transport Company Manager and was sponsored for a Subclass 457 Visa which was duly issued to him in March 2015.

14. The Tribunal asked the applicant when he commenced working for the sponsoring business MFL Transport Pty Ltd and he advised around December 2014 at which time he held a Bridging visa with work rights until the time of the cancellation of his visa in August 2017. The applicant stated that at the time of the cancellation of his 457 Visa he was issued with a Bridging E visa that did not have work rights attached to it. However the applicant stated that in September 2017, he was given work rights by the Department and continued to work for the sponsoring business.

15. The Tribunal asked the applicant about the location of the sponsoring business and he advised it was located in Abbotsbury in Sydney.  The Tribunal asked the applicant for details about the sponsoring business. He advised that it was a family business that ran 3 delivery trucks and that the owner manager of the business was William Benedict Moser. The Tribunal asked what sizes the delivery trucks were and the applicant advised they were medium rigid trucks. He advised the business had contracts to transport bread on behalf of Tip Top Bakeries and employed 3 truck drivers on a full-time basis: Ryan, Preet and Paul.

16. The Tribunal asked the applicant about his role in the business as a Transport Company Manager from December 2014 until the time of the cancellation of his visa in August 2017. The applicant stated that he attended Tip Top Bakeries and was involved in loading the trucks, that he would at times drive stock to supermarkets in small shops he was involved in invoicing, checking the vehicles for any repair needs and that he undertook a range of duties as instructed by his sponsoring employer.

17. The Tribunal made reference to the ANZSCO Occupational Dictionary and made reference to the definition of Transport Company Manager. The Tribunal noted that it appeared that some of the tasks of the nominated position conformed to this definition but some of the tasks were outside the definition. The applicant reiterated that he undertook work that he was instructed by his employer to undertake and that he admitted that as a consequence he did breach a condition of his subclass 457 visa.

18. The Tribunal asked the applicant about his long-term intention in Australia given that he had been in this country since December 2012. The applicant stated that his objectives when arriving on a student visa were to complete a Masters of Business Administration or another high level course of study. The applicant stated that he had worked for a number of years for his sponsoring business but he wanted to obtain actual experience as a Transport Company Manager. The applicant stated that he was married to his wife in Pakistan in October 2016 and he had not returned overseas in almost 2 and a half years. The applicant stated that he is in talks with some other prospective companies to sponsor him for a Subclass 482 visa in the event that the cancellation of his Subclass 457 visa is set aside and he is not subject to a Section 48 bar.

19. The Tribunal asked the applicant what he understood the attributes of the position of Transport Company Manager were. The applicant stated that it was the management of transport vehicles and equipment, overseeing the day-to-day operations of those vehicles, collating rosters, dealing with customers and deliveries, handling complaints, then responsible for the dispatch of goods, and quoting prices and higher rates and delivery fees.

20. The Tribunal asked the applicant whether he had worked in a Transport Company Manager role prior to arriving in Australia. The applicant stated that he had not and that he had worked predominantly in the hospitality sector including work in the United Kingdom and had qualifications in this sector.

21. The Tribunal asked the applicant what hardship he would experience as a result of the cancellation of his visa. The applicant stated that if he did not return to Pakistan his marriage was in jeopardy. The applicant stated that he needed to save his career and that he needed to obtain more work experience as a Transport Company Manager. The applicant advised that he had been in talks with a number of Australian businesses about the prospect of them sponsoring him for a Subclass 482 visa. The applicant advised these companies included Moser Transport in Chullora, Al Bana Transport in Greenacre and Kell Logistics in Botany.

22. The Tribunal asked the applicant whether there were any other matters that he wished the Tribunal to take into consideration. The applicant made reference to the financial ramifications if his visa was cancelled. The applicant advised that he provided financial support to his mother and 2 of his 3 siblings. The Tribunal asked the applicant whether he would make more money in this role in Australia as compared to Pakistan and the applicant advised that the salaries in Australia were much higher. 

23. The Tribunal noted that the applicant had now obtained a Diploma of Business Management in Australia and had worked for a transport company in Australia from December 2014 to date and thus he had acquired both Australian qualifications and Australian work experience. The Tribunal noted that this would potentially make the applicant more marketable upon his return to Pakistan. The applicant was invited to comment on this.  Once again the applicant stated that he needed to acquire further experience as a Transport Company Manager in Australia before he returned to Pakistan.

24. The evidence before the Tribunal and conceded to by the applicant is that he was employed by his nominating employer to work in the position of Transport Company Manager, however in the role he undertook driving of a truck for 3 to 6 hours per day as there were insufficient tasks to occupy the applicant in the nominated role.  The applicant advised at the review hearing that he was directed by his employer to engage in these tasks.  The evidence before the Tribunal indicates that the applicant breached condition 8107(3)(a)(i) of condition 8107 which was attached to his Subclass 457 visa as he did not work only in the occupation of Transport Company Manager listed in the most recently approved nomination and that he in fact undertook tasks that were more akin to that of Truck or Delivery Driver.

25. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

26. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

27. The visa applicant entered Australia in December 2012 as the holder of a Subclass 572 Student visa to enable him to undertake study in Australia. The applicant completed a Diploma of Business in his first year of study and then enrolled in a Bachelor of Accounting at Holmes College.  The applicant only completed one year of his accounting studies as he failed the subjects that he attempted. The applicant ceased studying at the end of 2014. The applicant then applied for the position of Transport Company Manager with the nominating company. The applicant stated that he obtained this position based on his completion of the Diploma of Business. The applicant stated that he has provided and continues to provide financial support to his mother and siblings in Pakistan and they are reliant on the provision of the support. Since the applicant’s marriage in October 2016 this support now extends to his wife.

28. The applicant claims that he continues to work with the nominating employer (as the holder of a Bridging visa) and has since the cancellation of his visa approached a number of transport companies about prospective employment as a Transport Company Manager.  No evidence such as a prospective offer of employment was provided in support of this assertion. The Tribunal notes that at the time of responding to the NOICC in August 2017 the applicant believed that he would find suitable employment within 8 to 12 weeks, yet as at the time of the review hearing the applicant has not secured a new nomination.

29. The evidence before the Tribunal indicates that there was some degree of compliance with the conditions attached to the applicant’s student visa, however the applicant did advise that during his year of study in a Bachelor of Accounting he failed to make satisfactory academic progress  There is no evidence before the Tribunal that indicates that the Department commenced any compliance action against the applicant due to this fact, and the applicant then went on to apply for the visa that is the subject of this review.

30. The evidence before the Tribunal indicates that since the applicant has been in Australia he and since the grant of his Subclass 457 visa that he has worked in a full time capacity and this employment has been the primary source of financial support to his remaining family in Pakistan.  The applicant advised that he is hoping to obtain a further temporary work visa in Australia for two main reasons and they are to obtain further experience as a Transport Company Manager before returning to Pakistan to enhance his work opportunities upon return and to enable him to continue to provide financial support to his immediate family and wife in Pakistan. 

31. The Tribunal as discussed with the applicant at hearing notes that the temporary business visa programme is to enable Australian businesses, where there is an identified skills shortage to plug that shortage with overseas skilled workers.  The objective of the programme is not to enable a person to spend, what in the applicant’s case, would amount to many years honing his skill set for future job prospects for his eventual return to his home country, or to enable an overseas visa holder to remain in Australia to provide financial support to family members in their home country where there is a clear disparity in the earning potential between the two countries.

32. The Tribunal notes that the circumstances in which the cancellation of the applicant’s visa occurred was when the Department determined after interviewing the applicant and his nominating employer that he was not undertaking work in the occupation listed in his most recently approved nomination of Transport Company Manager and that the work he performed was more akin to that of Truck or Delivery Driver.  This was in clear breach of condition 8107.

33. There is nothing adverse before the Tribunal pertaining to the applicant’s past or present behaviour towards the Department.

34. The Tribunal has also had regard to the mandatory legal consequences of cancellation The Tribunal accepts that if the visa is cancelled the applicant will be affected by s.48 of the Act. He will not be able to apply for another Temporary Work Skilled visa (now the TSS visa) onshore, and will have limited options for applying for a valid visa in Australia, without the intervention of the Minister.

35. The Tribunal gives limited weight to the mandatory legal consequences of cancellation as they are the intended consequences of legislation.

36. In relation to consideration regarding international obligations, there is no evidence before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.

37. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience some financial hardship if the visa is cancelled. The Tribunal also accepts that the applicant appears to have generally complied with visa conditions. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa, namely to meet skill shortages in the Australian economy. The applicant has been unable to secure another nomination since his visa was cancelled in August 2017. As indicated above, the applicant can, should he wishes to do so, make an application for a Subclass 482 visa offshore should a nomination in relation to him be approved in future.

1. The Tribunal has weighed up all of the relevant circumstances in this case and considers that the circumstances in favour of cancelling the 457 visa outweigh those in favour of not cancelling the visa.

   DECISION

2. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

   John Cipolla
   Senior Member