Hennessy (Migration)

[2017] AATA 2754

Hennessy (Migration) [2017] AATA 2754 (13 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gary Hennessy

CASE NUMBER:  1607986

DIBP REFERENCE(S):  BCC2015/3787809

MEMBER:Hugh Sanderson

DATE:13 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 13 December 2017 at 2:32pm

CATCHWORDS
Migration – Cancellation – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – Employment history and description of duties – Information records of employer – Applicant’s incoming passenger card

LEGISLATION
Migration Act 1958, ss 5, 97-101, 103, 107, 109

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided false information and bogus documents in support of the application for 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.

Background

1. The applicant is a citizen of Ireland and is currently 33 years old. He was granted a subclass 457 visa on 4 February 2010. The sponsor of that application was Murphy Pipe and Civil Construction Pty Ltd (hereinafter Murphy Pipe and Civil). The position for which he was nominated was as a “Drainer”.

2. The applicant applied for a subclass 186 Employer Nomination Scheme visa on 16 April 2013. Included in that application was the applicant’s de facto partner, Lorraine McGrath and their daughter, Ellen. The applicant was sponsored for the visa by Murphy Pipe and Civil for the position of “drainer”. In his application, the applicant claimed that he had been working for Murphy Pipe and Civil since December 2009 in the position of a “drainer”. Various documents were provided in support of the application, including letters from Murphy Pipe and Civil. The applicant and his family were granted the visas on 21 May 2013.

3. The Department conducted an audit of Murphy Pipe and Civil. As a result of this audit, the Department considered that the applicant had provided false and misleading information and bogus documents to the Department in support of his application for his subclass 186 Employer Nomination Scheme visa. The Department wrote to the applicant on 29 April 2016 with a Notification of Intention to Consider Cancellation under s.109 of the Act.

4. The applicant responded to the Department with a statement and various documents. The applicant claimed as follows:

   ·    He had always been employed as a drainer with Murphy Pipe and Civil;

   ·    If the applicant had been described as a labourer in the training matrix prepared by Murphy Pipe and Civil then this was an error on their part;

   ·    Due to his experience and quality of work he was given a higher wage package which became a supervisor’s wage;

   ·    As he was being paid at a higher rate, Murphy Pipe and Civil classified him as a CW5, however, this did not affect what work he was doing which was as a drainer;

   ·    In order to develop his many skills he obtained diverse qualifications;

   ·    How Murphy Pipe and Civil referred to him on internal documents was not an accurate reflection of the work that he was doing;

   ·    The applicant was made redundant by Murphy Pipe and Civil in July 2014 and the applicant commenced his own business which now has three employees and is expected to expand in the future;

   ·    His business is committed to a number of significant projects and has been involved in various fundraising activities;

   ·    The applicant and his family are well settled in Australia with their daughter now attending school; and

   ·    If their visas were cancelled, this would cause significant stress and hardship for the applicant and his family.

5. The delegate who considered the matter took into account the following issues:

   ·    A company spreadsheet titled “Training Matrix (Main) Rev 11” listed the applicant’s position as “Labourer”;

   ·    Records and documents show the applicant possesses qualifications and tickets that relate to occupations outside his nominated occupation;

   ·    A company spreadsheet of “Visa Personnel” lists the applicant’s nominated occupation as “drainer” and his role classification on project as “Supervisor”;

   ·    Other company spreadsheets from April 2013 list the applicant’s role as “Supervisor” and his nominated occupation as “Drainer”;

   ·    Company spreadsheets list the applicant as classified under CW5 with that occupation being a Final Trim Grader Operator with the position of a drainer classified as CW3;

   ·    The applicant listed his work in his CV prior to September 2010 as an excavator operator and leading hand/operator but does not indicate that he was working as a drainer;

   ·    Email correspondence dated 26 September 2010 listed the applicant’s position as an operator; and

   ·    On incoming and outgoing passenger cards between 2010 and 2013 the applicant described himself variously as a “supervisor”, “operator”, and “foreman”.

6. Taking all these matters into account, the delegate found that the applicant had provided false and misleading information in his application and provided bogus documents in support of that application. The delegate took into account the matters raised by the applicant as to why his visa should not be cancelled, but concluded that the reasons to cancel the visa out-weighed the reasons not to cancel. Accordingly, a decision was issued cancelling the applicant’s visa. As a consequence of this, the visas of the applicant’s partner and child were also cancelled.

Information to the Tribunal

1. The applicant’s agent provided submissions where the following was claimed:

   ·    The information in Murphy Pipe and Civil’s documentation is unreliable and often inconsistent and not a true reflection of the primary work carried out by the applicant;

   ·    The information in Murphy Pipe and Civil’s documentation is a reflection of the project an employee was based on and his pay level rather than his actual occupation;

   ·    General advertisements for the position of a “drainer” require multiskilled experience, which is reflected in the applicant’s CV;

   ·    The variation in the passenger cards indicates they are not a reliable source to indicate the applicant’s actual work role and have probably been completed by the applicant’s partner;

   ·    The applicant was employed on the pay classification “CW 3”, which included the classification of a drainer, and then was moved to “CW 5” which indicates an increase in administrative functions, and is intended to indicate a pay rise rather than a change of work type;

   ·    Statements by people who the applicant worked with and for confirm that he was working as a drainer; and

   ·    The applicant and his family are well integrated into Australian society and cancelling the visa would have a disastrous impact on all their lives.

2. The applicant appeared before the Tribunal on 21 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Lorraine McGrath, who is the applicant's partner.  The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

3. The applicant said that he dropped out of the equivalent of year 12 of high school in Ireland and started working with his father in a construction business which specialised in water drainage and other piping systems. He said that he was involved in all activities including using excavators, laying pipes and other labouring work. He came to Australia and he worked for Eco Civil. He was with a crew of about 10 or 11 people and, due to his experience, he was often considered the leading hand in the crew, although he still answered to a supervisor, Brian O’Donovan. He provided details of the work he did. He said that although he was involved in some administrative work, 60% to 70% of his time was spent in direct hands-on labour.

4. The applicant gave details of his work with Pipe and Civil, later to become Murphy Pipe and Civil. He said that for part of the time he was working again supervised by Brian O’Donovan who supervised his crew. Due to the applicant’s experience and the faith that Mr O’Donovan handed him, he was given some administrative tasks but the majority of his work was directly related to the draining work. He provided details of his normal day. As Mr O’Donovan was his supervisor, he reported to him if there were any issues and it was Mr O’Donovan’s responsibility to do it.

5. The applicant gave details of his work and other projects including the Sino Iron Project. He provided details of the work that he was doing. He said that due to his reputation as a drainer he was given added responsibility for some work and some limited administrative roles. On some jobs, he would use some plant equipment, for instance to simply move it out of the way or if the person whose job it was to operate the machine was not available and as he could operate the machine he would do it to get the job done. He said that this happened only occasionally. He said that at all times he was working under a supervisor who had the primary responsibility for the administration and management of the crew he was working with. The applicant said that he obtained tickets and certificates of competency for various plant and equipment because it was an advantage for him to get these tickets. He said that the training was usually arranged by Murphy Pipe and Civil and did not interfere with his normal work as a drainer. He said that he viewed getting these tickets as complementary to the work that he was doing.

6. The applicant was critical of Murphy Pipe and Civil’s administration of the paperwork. He said that he did not question on what basis he was paid and accepted the advice given to him by human resources at Murphy Pipe and Civil. He said that the paperwork maintained by the company was often chaotic.

7. The applicant said that after he was granted the subclass 186 Employer Nomination Scheme visa he was asked to act in the supervisor’s role as his supervisor was on holidays. When his supervisor returned from holidays he returned to laying pipes.

8. The applicant said that his CV was prepared by Murphy Pipe and Civil to provide to a client of theirs to indicate the skills of the people working on their project. He was uncertain as to where the information was obtained to prepare this document. He said that much of the information in that CV, such as the pre-start meetings, job hazard analysis and toolbox meetings were usual meetings for all people on their crew and if he was leading these, it was simply because he had greater experience.

9. The applicant said that he was given a promotion after having been granted his permanent residence as he undertook more of a supervisory role. Due to the downturn in the mining industry, he was given a redundancy from Murphy Pipe and Civil in July 2014 before starting his own business.

10. 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

1. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

2. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

3. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

Was there non-compliance as described in the s.107 notice?

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act by providing incorrect information and s.103 of the Act by providing a bogus document.

2. The incorrect information which it was alleged the applicant provided was the claim that he was employed as a drainer by Murphy Pipe and Civil for the period from February 2010 to April 2013. The bogus document was stated to be the letter in support from Murphy Pipe and Civil because it contained a false or misleading statement being that the applicant had been employed by Murphy Pipe and Civil since February 2010 as a drainer. It was alleged by the Department that over this period the applicant had been employed as a Mobile Plant Operator.

3. The description of a drainer is derived from ANZSCO which has been used by the Department to identify occupations for which various visas would be granted. The position of drainer is described in ANZSCO as follows:

   UNIT GROUP 3341 PLUMBERS

   PLUMBERS install, maintain and repair pipes, drains, guttering and metal roofing, mechanical services and related equipment for water supply, gas, drainage, sewerage, heating, cooling and ventilation systems.

   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
   In Australia:

   AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
   
   In New Zealand:
   NZ Register Level 4 qualification (ANZSCO Skill Level 3)
   
   At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

   Registration or licensing is required.
   Tasks Include:

   o   studying blueprints, drawings and specifications to determine the layout of plumbing systems and materials required
   o   setting out and installing hot and cold water systems and associated equipment
   o   installing water-based fire protections systems, including fire hydrants, hose reels and sprinkler systems
   o   designing and installing sanitary plumbing and water supply systems, discharge pipes and sanitary fixtures
   o   fabricating and installing soil and waste stacks
   o   assembling and installing mechanical services plant, air handling and conditioning equipment and small bore heating systems
   o   installing sewerage and effluent pumping equipment and disposal systems
   o   installing below-ground drainage systems and associated ground support systems
   o   installing gas appliances, flues and pressure regulating devices
   o   fabricating and installing metal roofing, rainwater goods and flashings

   Occupations:
   334111 Plumber (General)
   334112 Airconditioning and Mechanical Services Plumber
   334113 Drainer (Aus) / Drainlayer (NZ)
   334114 Gasfitter
   334115 Roof Plumber

   334113 DRAINER (AUS) / DRAINLAYER (NZ)
   
   Installs, maintains and designs below-ground drainage systems and associated sewerage or effluent disposal systems. Registration or licensing is required.

   Skill Level: 3

4. The basis of the Department’s decision that the applicant had provided false information and a bogus document in support of his application was based on the audit conducted on Murphy Pipe and Civil and the answers the applicant gave on his incoming passenger cards.

5. The applicant described the record-keeping of Murphy Pipe and Civil as “chaotic”. Certainly, based on the information obtained by the Department from Murphy Pipe and Civil, their record-keeping is confused. In various documents from Murphy Pipe and Civil over the relevant years the applicant is described as a “Labourer”, “Supervisor”, “Final Trim Grader Operator” and “Drainer”. This inconsistency in the manner that Murphy Pipe and Civil classified the occupation of the applicant undermines the reliability of the information in the records of Murphy Pipe and Civil when considering what the correct information was at the time of the application and the role that had been undertaken by the applicant in the years prior to the application being filed.

6. The incoming passenger cards completed by the applicant also provided inconsistent information. He variously described himself as “supervisor”, “operator”, and “foreman”. Again, inconsistency in the descriptions of the applicant’s occupation in these documents calls into question the weight that should be given to them when determining whether the applicant did provide incorrect answers and bogus document in his application.

7. The applicant provided credible information to the Tribunal during the hearing as to his work history. He gave an accurate description of the work he carried out both during his time working for Murphy Pipe and Civil and before that time. At the time he commenced working for Murphy Pipe and Civil he had 10 years’ experience working as a drainer and in associated work roles. It is not surprising, therefore, that he would have been considered the member of the crew with the most experience and subsequently been given more responsibility. This does not mean, however, that his primary role was not as a drainer. The experience the applicant had allowed him to undertake work, such as operating machinery, which was at the same time directly involved with his position as a drainer.

8. The evidence the applicant gave at the hearing was clear and unambiguous. Although an experienced member of his crew, he was still working under the direct supervision of another employee. His operation of any machinery was only secondary to his primary role as a drainer and done in association with the work that he was doing which was installing drains and piping systems for significant projects, often in hostile environments.

9. The applicant obtained various tickets to qualify him to carry out various tasks. The training in order to obtain these qualifications was offered by Murphy Pipe and Civil and did not interfere with the applicant’s role as a drainer. The applicant, not surprisingly, saw an advantage for his career in obtaining these qualifications. The work of a drainer which involves installing below-ground drainage systems will, on occasion, require the use of various plant and equipment which, with the necessary qualifications, would be desirable for any drainer. It is noted that some of the tickets obtained are directly related to the occupation of a drainer, most notably the training course the applicant undertook in November 2010 for flange assembly.

10. Job advertisements provided by the applicant from Blue Water Plumbing dated 10 July 2017, Framework Search and Select dated 16 July 2017, and Chandler McLeod dated 21 July 2017 all indicate that demonstrated experience in earth works, road construction and use of an excavator and plant machinery is desirable when being considered for the position of a drainer. It is not surprising, therefore, that the applicant would have obtained the qualifications when the training was offered and, on occasions, operated these machines while undertaking his role as a drainer.

11. The applicant has provided statements from people he was employed with confirming that his employment with Murphy Pipe and Civil was that of a drainer. The report from the Constructions Officer of Barwon Water must be given significant weight as it is provided by a person independent of Murphy Pipe and Civil who was aware of the work done by the applicant over the relevant period.

1. The letter from Murphy Pipe and Civil sets out the work that the applicant had done for them since 2010. The letter states that his occupation was as a drainer. In the description of the applicant’s daily duties the responsibility to operate heavy machinery and industry specific equipment was included. This does not mean, however, that the applicant was considered to be a plant operator. His main occupation was that of a drainer. The letter from Murphy Pipe and Civil does not hide the fact that, in his role as a drainer, the applicant would be required on occasion to operate plant and equipment.

2. As indicated above, due to the applicant’s work experience and seniority he was recognised as one of the leaders of his crew. This does not, however, make a supervisor. His experience entitled him to a higher pay rate which the applicant accepted. The Tribunal accepts that the description of the applicant as being on a CW5 Enterprise Bargaining Agreement was to give him a higher pay rate than other less experienced drainers in his crew who were otherwise on a CW3 EBA. The applicant, who was only concerned about his pay rate and not how Murphy Pipe and Civil described it, simply accepted this without question.

3. When considering all the information before the Tribunal, the Tribunal finds that the employment of the applicant with Murphy Pipe and Civil was in the position of a drainer as described in ANZSCO. The Tribunal finds that the information the applicant provided in his application as to his employment history and description of duties was not false or misleading. The Tribunal finds that the letter from Murphy Pipe and Civil dated 10 April 2013 was an accurate description of the work the applicant had undertaken as a drainer whilst he was employed by them. The Tribunal finds that the applicant did not provide any incorrect answers in his application and that the letter provided from Murphy Pipe and Civil did not provide false or misleading statements and therefore was not a bogus document.

4. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

5. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Hugh Sanderson
Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)     was obtained because of a false or misleading statement, whether or not made knowingly.

2. Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

3. Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

4. Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

5. Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

6. Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

7. Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

8. Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)     stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)     informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)     requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)     visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.