Kelly (Migration)

[2017] AATA 1374

Kelly (Migration) [2017] AATA 1374 (17 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Anne-Marie Kelly

CASE NUMBER:  1620605

DIBP REFERENCE(S):  BCC2016/2786939

MEMBER:R. Skaros

DATE:17 August 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 457 (Temporary Work (Skilled)) visa.

Statement made on 17 August 2017 at 12:06pm

CATCHWORDS

Migration – Cancellation – Subclass 457 (Temporary Work (Skilled)) visa – Occupational Health and Safety Adviser – Tasks do not match occupation – Consideration of discretion – Hardship to sponsor and applicant

LEGISLATION

Migration Act 1958, ss 48, 116, 140GB
Migration Regulations 1994, Schedule 2, Condition 8107(3)(a)(i)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 November 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. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8107 that attached to the 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. When applying for review the applicant provided a copy of the delegate’s decision record. The Tribunal also has before it a copy of the Department’s file, which includes an unsigned statutory declaration from the applicant in response to the notice of intention to consider cancellation.

4. During the processing of the review the Tribunal received submissions from the applicant’s representative together with the following documents: a copy of the statutory declaration from the applicant provided to the Department, a letter of support from Phillip McCue, the Director of Asphalt Company Australia Pty Ltd located in the Northern Territory, a copy of an offer of employment in the position of Work Health and Safety Adviser with Asphalt dated 19 December 2016 and an acknowledgement of a nomination application (permanent employer sponsored) lodged with the Department  on 18 June 2017.

5. The applicant appeared before the Tribunal by video link on 19 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jessica Gerald by telephone. The applicant indicated in the hearing response form that she wanted the Tribunal to take evidence from Mr Philip McCue. The Tribunal attempted several times to contact Mr McCue by telephone during the hearing but there was no answer. 

6. The evidence obtained from Ms Gerald raised some concern that the applicant may not be currently undertaking the full range of tasks involved in carrying out the occupation of Occupational Health and Safety Adviser. Consequently, the Tribunal invited the applicant to comment on the evidence provided by Ms Gerald which the Tribunal explained is relevant to the Tribunal’s consideration of the discretion as to whether the visa should be cancelled. 

7. In response, the Tribunal received a submission from the representative together with a number of supporting documents, which the Tribunal has had regard to further below.

8. 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

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

10. 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 attached to the applicant’s visa. The relevant paragraph of this condition is 8107(3)(a)(i) which requires the applicant, as the holder of the relevant visa, to work only in the occupation listed in the most recently approved nomination.

11. In this case, the applicant was nominated by Top End Line Markers Pty Ltd in the occupation of Occupational Health and Safety Adviser (ANZSCO 251312). The nomination was approved on 7 May 2015 and, at the time of the delegate’s decision, was the most recently approved nomination for the applicant.

12. An Occupational Health and Safety Adviser, as described in the ANZSCO, develops, implements and evaluates risk management policies and programs, trains employees in occupational health and safety procedures, monitors and audits the workplace, and records and investigates incidents to ensure safe and healthy working conditions. It is a skill level 1 occupation.

13. On 24 May 2016 Departmental officers conducted a site visit at the sponsor’s premises in the Northern Territory and interviewed the sponsor and the applicant. Information obtained from the sponsor indicates that the applicant carried out the following tasks;

    ·   Supervise traffic control girls.

    ·   Trainee in OH&S -  learning the position and assisting Ian McMurtry

    ·   Undertaking a WZ1 Traffic Management Design Course.

    ·   Attending and monitoring sites and helping Ian with collecting safe statements, making sure the records are being returned to the office.

    ·   She is a traffic control officer and has been in the role approximately 12 months.

    ·   To qualify as a Health and Safety Adviser she must undertake a Certificate IV in OH&S to become an officer.

    ·   The role of OH&S officer is currently being undertaken by Ian McMurtry from Top End Safety Solutions. Ian manages that business and the applicant liaises with Ian.

14. The applicant provided the following information regarding her duties during the interview;

    ·   Inspects vehicles to see if there are any windscreen cracks, tyres etc.

    ·   She goes out and checks on site for any hazards

    ·   She checks with the traffic control staff and any OH&S issues they come to her

    ·   She supervises the traffic control girls (4 girls) and will assist them if necessary

    ·   She makes sure everyone has 'SWIMS' when they go out for jobs. 'SWIMS' (Safe work method statements) is a form which needs to be completed by the worker when hazards are found. Also to ensure the worker has all their equipment with them (boots, hi-viz etc). She writes up reports (cracked windscreen etc.) and notifies her employer. These are kept in the office.

    ·   She spends most of her time out on site, writes down issues and is assisting with the line markers. If she sees a few hazards she will put up signs and help labouring, lifting streets and stuff. May help out the traffic girls in the morning and then go back to help the line markers.

    ·   50% of her time is spent on OH&S issues and 50% on other work.

    ·   Reports hazards / issues and sends them back to her sponsor. Sponsor and Ian fill in the necessary forms.

    ·   She reports incidents to Ian and she does the paperwork. Ian does not go out onsite.

    ·   Ian does the reports and monitors everything, makes sure everything is done correctly.

    ·   No change in duties since nomination approval.

    ·   She stated that SWIMS, daily logs and 'Take 5's' are each employee’s responsibility to fill in.

15. At the hearing, the Tribunal discussed with the applicant the information contained in the notice of intention to consider cancellation as set out above and explained to her that the information indicates that she did not work as an occupational health and safety officer and appears to have been working in traffic control.

16. In response, the applicant stated that did not realise that she was in breach. She only realised the breach after the checks were conducted by Immigration.  She stated that she was supervising 50% of the time and undertaking health safety tasks the other 50% of the time. She stated that she was just doing what she was asked to. The Tribunal has considered the applicant’s response, and while it acknowledges that she was carrying out the tasks asked by her sponsoring employer, the Tribunal considers that the obligation to comply with the conditions of the visa is also the responsibility of the applicant. The Tribunal has considered the applicant’s evidence in the context of the circumstances in which the ground of cancellation arose further below. However, for the purposes of determining whether the ground of cancellation exists, the Tribunal is satisfied that the evidence obtained during the site visit, which the applicant does not dispute, establishes that the applicant was working primarily as a traffic control officer with some supervisory duties and was not working only in the occupation of Occupational Health and Safety Adviser.

17. Given the above, the Tribunal finds that the application breached condition is 8107(3)(a)(i) as she did not, as the holder of the visa, work only in the occupation listed in the most recently approved nomination.

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

19. 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’.

20. The Tribunal has first considered the purpose of the applicant’s stay in Australia.  The Tribunal considers that the purpose of the applicant’s stay in Australia as the holder of the 457 visa is to work for Top End Line Markers Pty Ltd as an Occupational Health and Safety Adviser. The Tribunal considers that the applicant has not been fulfilling the purpose for which the 457 visa was granted as she was not working in the nomination occupation whilst holding that visa. When this was discussed with the applicant at the hearing, she stated that when she was working for Top Line she was working under Ian’s guidance and after the visa was cancelled she tried to find another employer to take over her 457 visa. She stated that she has been working for another company (Asphalt Company Australia) since January and that Asphalt has lodged an employer nomination under the direct entry stream.

21. The Tribunal has considered the applicant’s response, however as explained to her at the hearing, a nomination under the permanent stream is different from nomination under the temporary work (457 visa) stream and noted that she would again be in breach of condition 8107 if the cancellation of her visa is set aside as that 457 visa was granted on the basis of the nomination by Top End. The applicant stated that a new nomination can be lodged and the representative confirmed that this could be done at short notice.

22. The Tribunal has also had regard to the representative’s submission at the hearing the applicant commenced working with Asphalt after the visa had cancelled and that Asphalt decided that the nomination under the 187 pathway was more appropriate for their needs. It was submitted that if the cancellation is set aside the applicant will have the opportunity to continue the process in relation to the 187 application and this is a compelling reason for her to remain in Australia.

23. The applicant gave evidence that she would like to remain in Australia to continue working for Asphalt as their health and safety officer. The Tribunal has also had regard to the letter from the Director of Asphalt, Mr McCue, in which he stated that if the applicant left the employment it would disrupt the business as he would need to find a replacement, who would have to be trained, and that it has been difficult in the past to find a suitable qualified health and safety officer and that it would be a loss for the company if she had to leave. In the written submissions the representative highlighted the difficulties that Asphalt, as a regional employer, has had with recruiting suitably qualified individuals from the local labour market to fill the role.

24. The Tribunal has also considered the evidence provided by Ms Gerald at the hearing about the tasks undertaken by the applicant with Asphalt and the post heating submissions. While the Tribunal was initially concerned that the applicant may not have been undertaking the full range of tasks of the occupation of occupational health and safety advisor at the level described in the ANZSCO, and that the position was more of an administrative role, after considering the post hearing submissions, which elaborated on Ms Gerald’s oral evidence, and the supporting documents, the Tribunal is prepared to accept that the tasks currently undertaken by the applicant generally correspond to the tasks of occupational health and safety officer.  It was submitted that the administrative type tasks undertaken by the applicant, such as updating and completing relevant forms and documents, require analysis of the work environment, interpretation of health and safety standards and decision making, and that these tasks correspond to the task of reviewing and implementing health and safety plans. The Tribunal also received copies of the business’ work and safety handbook, the forms and documents reviewed, updated and completed by the applicant and types of correspondence drafted by the applicant to various stakeholders who may be affected by works undertaken by Asphalt. These documents supported the submission that the applicant is currently undertaking tasks associated with the occupation of Occupational Health and Safety Advisor as described in the ANZSCO. The Tribunal notes that the occupation of Occupational Health and Safety Adviser remains on the current short term occupations list for the 457 visa programme.

25. The Tribunal has considered all of the above submissions, while it is somewhat concerned that the applicant is not currently the subject of an approved or even pending nomination under the 457 programme by Asphalt, the company has demonstrated their willingness to employ the applicant and to sponsor her under the employer nomination permanent entry stream. On this basis, the Tribunal accepts that Asphalt is willing to lodge a nomination under s.140GB for the applicant. The Tribunal gives weight to these circumstances in favour of the applicant.

26. The combination of the above considerations, including Asphalt’s employment of the applicant in an occupation that is on the current 457 occupations list and the company’s willingness to lodge a nomination under the temporary visa stream indicate that the applicant would be able to, provided the nomination under s.140GB is approved, fulfil the purpose of the 457 visa. These considerations weight in favour of not cancelling the visa.

27. The Tribunal has also considered the extent of compliance with visa conditions. The applicant gave evidence at the hearing that she is complying with the conditions of her bridging visa E and that she sought permission to work, which was granted in December 2016, before she commenced working for Asphalt in January 2017. There is nothing before the Tribunal that indicates that the applicant has not complied with the conditions placed on her bridging E visas.

28. In relation to the non-compliance with the 457 visa conditions, the Tribunal discussed with the applicant its concern that when she was granted the 457 visa she would have been aware that she was required to work only in the nominated occupation of Occupational Health and Safety Adviser. The Tribunal acknowledged the applicant’s earlier evidence that there was an initial period of training and noted that, notwithstanding this, she was still required to work only in the nomination occupation and appears to have been in breach of that condition 8107(3)(a)(i) for 12 months. In response, the applicant stated that she trained under Ian to make sure that she would be doing the job properly because he was going to take over new contracts. She stated that she is not sure how she ended up in the role for the 12 months. The applicant indicated that she accepts the breach but she is committed to never letting herself be put in such a situation again and is committed to contributing her skills to Australia and would like another chance to prove herself. The Tribunal has considered the applicant’s response and while it acknowledges her evidence that there was an initial period of training, the evidence indicates that the applicant continued to be employed as a traffic control officer for a period of 12 months, which the Tribunal considers to be a considerable period of time to be in breach.

29. The Tribunal has also had regard to the representative’s submission that the circumstances which led to the applicant’s breach were not entirely within her control. It was submitted that the applicant thought that she would be taking on a full time position as a health and safety officer after an initial period of training and that this did not eventuate by the time the employer was investigated. It was submitted that the extent of the breach was relatively minor when considered against the vulnerable position the applicant was in and the steps taken to leave her employment and seek an alternative nomination.  

30. The Tribunal has considered the above submissions but gives limited weight to them. The Tribunal notes that the applicant would have been aware, or should have informed herself, that she was required to comply with the conditions of her visa which included that she work only in the nominated occupation. The applicant would have also become aware within a matter of weeks, or even up to three months, that by continuing to work as a traffic control officer, she was not working in the occupation in which she had been nominated. The Tribunal acknowledges that the applicant has left that employment however this was not done until after the Department’s investigation and after the visa was cancelled. The Tribunal considers that it was within the applicant’s control to inform herself of the conditions to which her visa was subject and to ensure that she complied with those conditions. The applicant, in the Tribunal’s view, was indifferent to the fact that the tasks she was undertaking as a traffic control officer put her in breach and made limited efforts to ensure that was complying with the conditions of her visa. While these considerations weigh in favour of cancelling the visa, the Tribunal gives some credit to the applicant for her willingness to acknowledge her wrongdoing and her remorse over her failure to take action sooner.

31. In relation to the degree of hardship that may be caused if the visa is cancelled, it was submitted that the applicant would experience financial and emotional hardship if the visa is cancelled and she had to return to Ireland. The applicant gave evidence that she has been in Australia for almost 5 years and had expected to apply for permanent residency and settle here. If the visa is cancelled she would not be able to continue to work for Asphalt or pursue the employer nomination subclass 187 visa while in Australia. She stated that she would find it very difficult to find employment in Ireland given the high unemployment rate and that she would not be able to pay her debts. The Tribunal has considered these submissions, and while it acknowledges that the applicant had hoped to apply for residence in Australia, as explained to her at the hearing, she has only ever been in Australia as the holder of temporary visas, including the working holiday and temporary work visa, neither of which provide any expectation of permanent stay in Australia. The Tribunal nevertheless acknowledges and gives some weight to the hardship that may be experienced by the applicant if the visa remained cancelled and she had to cease her employment and depart Australia. The Tribunal also gives weight to the difficulties the employer may experience if they are not able to maintain the employment of the applicant and had to find a replacement.  

1. The Tribunal has also considered the 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. The Tribunal notes that the applicant would only be subject to indefinite detention if she did not voluntarily depart Australia. The applicant has not indicated that she would not be willing to depart in the event that she is unable to remain lawfully in Australia.

2. Although the applicant will not be affected by the 3 year exclusion period in 4013 or 4014 if she wished to apply for the employer nomination Subclass 187 visa offshore, the Tribunal gives some weight to the applicant’s submission that it is more favourable for her to be able to apply for the Subclass 187 visa onshore as she would be able to maintain her employment with Asphalt and meet her financial obligations. The Tribunal accepts that if the visa remains cancelled the applicant will be affected by s.48 and will not be able to lodge a permanent employer visa in Australia.

3. There is no one else whose visa would be consequentially cancelled if the applicant’s visa is cancelled. There is also no evidence, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.

4. The Tribunal has considered all of the evidence before it and weighed up the relevant factors in this case. The Tribunal considers the extent of the applicant’s breach to be significant and does not accept that the circumstances of the breach were beyond her control. While these factors favour cancellation of the visa, other circumstances, weigh in favour of not cancelling the visa, including the fact that the applicant has been able to secure employment in an occupation on the current 457 list,  Asphalt’s willingness to nominate the applicant, the difficulties Asphalt may experience if they had to replace the applicant, the applicant’s recognition of her past wrongdoing and strong desire to rectify the breach, and the hardship she may experience if the visa is cancelled. When considered in their totality, the factors in favour of not cancelling the visa, on balance, outweigh those in favour of cancelling the visa.

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

   DECISION

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

   R. Skaros
   Member