Khan (Migration)

[2018] AATA 5670

Khan (Migration) [2018] AATA 5670 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Hasan Reza Khan

CASE NUMBER:  1709112

HOME AFFAIRS REFERENCE(S):           BCC2015/1529073

MEMBER:Antonio Dronjic

DATE:4 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 04 December 2018 at 2:55pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – working only in the occupation in the approved nomination – duties performed by a production manager – no power to reinstate a visa that has ceased – Indian employer sent applicant for different role – potential business closure without retaining the applicant – business did not lodge fresh sponsorship and nomination applications – financial hardship for family – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 48, 116, 189, 359, 360
Migration Regulations 1994, Schedule 8 Condition 8107; r 2.12

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492
Visnumolakala v Minister for Immigration [2006] FMCA 1209          

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 July 2015 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(1)(b) of the Act. The delegate found that the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, namely as a production manager, but has carried out work as a machinery and stationary plant operator. The delegate found that the applicant had breached condition 8107 of Schedule to the Migration Regulations 1994 (the Regulations) which is attached to the applicant’s visa by specifically breaching condition 8107(3)(a)(i).

   Background to the cancellation of the applicant’s visa

3. The primary decision record of 29 July 2015, provided by the applicant to the Tribunal with the review application sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 7 May 2013, the applicant was granted a Subclass 457 Business (Long Stay) visa for a period of four years;

   ·The most recently approved nomination in relation to the applicant was approved on 6 March 2013, for him to work in the occupation of production manager for standard business sponsor, Alpine Valley Flour Mill Pty Ltd (Alpine Valley).

   ·It is recorded that on 9 January 2014 the applicant told the Department in a telephone interview that since October 2013 he had spent 4050 % of his time operating mill machinery and a further 40-50% of his time repairing mill machinery;

   ·The applicant had confirmed that he did not manage or train staff or keep formal records, conduct research or implement new production processes, duties which are all indicative tasks for the role of production manager as listed in ANZSCO code 133512. On the basis of this information the delegate considered that the applicant had been performing duties more closely aligned with those of a machine and stationary plant operator (ANZSCO Major Group 71) than those of a production manager;

   ·It was further noted that on 5 May 2014 he had advised the Department that, from the grant of his visa (on 7 May 2013) until October 2013 he had still been engaged in constructing the flour mill performing building work;

   ·A notice of intention to consider cancellation (NOICC) was issued 25 June 2015;

   ·On 29 June 2015, the applicant responded in writing to NOICC;

   ·On 29 July 2015, the delegate proceeded to cancel the applicant’s visa.

4. The applicant applied to the Tribunal (differently constituted) on 30 July 2015 for review of the visa cancellation and with the application submitted a copy of the primary decision record.

5. On 26 August 2016, the Tribunal (differently constituted) affirmed the decision under the review. The applicant sought a judicial review of the Tribunal decision. On 21 April 2017, an order was made remitting the matter to the Tribunal on the basis that the Tribunal failed to afford the applicant procedural fairness under s.360 of the Act. The oral evidence given by one of the directors of the sponsoring business during the course of the Tribunal’s hearing was ‘a rejection, denial or undermining’ of the applicant’s claim that he did not breach condition 8107(3)(a)(i) and the Tribunal has failed to put this adverse information for the applicant’s comment or response pursuant to s.359A(1) of the Act.

6. The matter was constituted to the current Tribunal on 19 September 2018.

7. On 21 September 2018, the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 29 November 2018.

8. The applicant appeared before the Tribunal on 29 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Christopher Abuawad, the manager of the sponsoring business. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

9. Before the commencement of the hearing, the applicant’s representative submitted a bundle of documents as evidence that the applicant performed duties of a  production manager (Tribunal folios 26-114)

10. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with the condition imposed on 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.

11. The Tribunal noted that the applicant’s visa was, but for the cancellation, valid until 7 May 2017. The Tribunal explained to the applicant that, even if the cancellation is set aside, the Tribunal does not have a power to reinstate his visa as it would have ceased anyway. He confirmed that he understood the explanation.

12. The Tribunal further explained to the applicant that, if satisfied that a ground 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.

13. The applicant is 31 years of age. He is a national of India where he completed the equivalent of year 12, and for a period of five years worked as a machine operator, welder and fitter at a flour mill operated by an Indian company, Bansal Engineering. His parents and seven siblings live in India. He gave evidence that he owns land and a house in India but the property is not under his name.

14. He stated that he first arrived in Australia in June 2012 as a holder of a Subclass 456 visa that remained valid for a period of three months. His second Subclass 456 visa was granted on 4 October 2012 and was to remain valid until 19 January 2013.

15. He gave evidence that he was sent to Australia by Bansal Engineering for the purpose of constructing the flour mill and installing the necessary machinery purchased by the Australian business Alpine Valley in India. He stated that he was receiving wages from the Indian company until June 2013. He further stated that he received his first salary from Alpine Valley (which was paid in cash) on 1 June 2013.

16. The applicant stated that construction work and installation of machinery was completed by the end of September 2013. He confirmed that he was granted a Subclass 457 visa on 7 May 2013, based on the sponsorship and nomination made by Alpine Valley and that his nominated occupation was production manager.

17. I observed that his second Subclass 456 visa ceased on 19 January 2013 and enquired as to what was he doing in Australia from January 2013 until 7 May 2013, being the day he was granted a Subclass 457 visa. He gave evidence that he continued to work on construction and machine installation for the flour mill until the end of September 2013. He further stated that the flour mill commenced its operations on 15 October 2013.

18. I noted that, according to his evidence, he did not work in his nominated occupation from 7 May 2013 (being the date of visa grant) until the end of September 2013 or mid October 2013. He conceded this to be the case as the mill did not start production until 15 October 2013.

19. He gave evidence that in October 2013, the sponsoring business employed five to six employees. However, he was able to name only three employees. He stated that at the time his boss, Mr Pritam Chugha, who was stationed in Melbourne, would tell him how much and what type of flour they need to produce and he would make sure that the order was carried out at the mill.

20. In his evidence, the applicant confirmed that he had a telephone interview with the Department on 9 January 2014. I noted that, according to the primary decision record, the information obtained during the investigation indicated that he was spending 40-50% of his time operating mill machinery and another 40-50% repairing mill machinery. He denied that he stated this during the interview and claimed in his evidence that it is possible that the Departmental officers misunderstood what he stated during the telephone interview. I asked if he had an interpreter during the interview and he confirmed that he did. He further stated that it was noisy in the mill during the time of the interview.

21. He gave evidence that he still works at the mill. He stated that he spends between 30 and 45 minutes during the work day setting the mill machines in the morning. I observed that this is not a task usually undertaken by a production manager.

    The Tribunal’s Oral Invitation to Comment on or Respond to Information

22. 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 the reason for affirming the decision that is under review. The information was:

    During the Tribunal hearing held on 9 August 2016, the Tribunal (differently constituted), took evidence from Mr Jousef Abu Awad who was one of the directors of the sponsoring business. In his evidence he stated, inter alia, that:

    ·     The type of work done at the factory is purely production and the visa applicant is one of a team that produces flour and deals with mechanical issues;

    ·     He (Mr Abu Award) would attend the factory once or twice a week and had seen the applicant running machinery, blending grain, milling flour and packing flour. He said there was no supervisor, all the employees were involved in everything;

    ·     The employees operate the machines and fix breakdowns. He claimed this was their skill, producing flour and managing breakdowns; and

    ·     As far as he was aware the applicant and Mr Amrik Singh had run the machines and produced the flour.

23. The Tribunal explained why this information is relevant to the current review and consequences if the Tribunal relies on this information. The Tribunal clarified with the applicant 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.

24. The applicant stated that he is not seeking additional time to provide his comments on or response to the information. He stated that he would occasionally check if the packaging was done properly and fix any problems if discovered. He stated that it is possible that Mr Jousef Abuawad saw him working on those machines.

25. I explained that, according to condition 8107 that was imposed on his visa, he was allowed to work only in the occupation listed in the most recently approved nomination, namely as a production manager. I noted that installing machines and doing construction work at the mill are not duties performed by a production manager.

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

27. I invited the applicant to state if there were any matters he wanted me to take into account in considering whether the visa should be cancelled. 

28. The applicant stated that he has a big family in India that he financially supports, and that one of his brothers passed away at the age of 20.

29. I clarified with the applicant’s representative the relevance of the evidence to be given by the proposed witness. The representative stated that the proposed witness will give evidence relevant to the Tribunal’s discretion as to whether to exercise the power to cancel the visa.  

30. In his evidence, Mr Christopher Abuawad stated that he is the manager of the sponsoring business set up by his father and uncle. He works from the head office located in Melbourne. He was appointed to a position of a manager in May 2014. He stated that it is very difficult to find in Australia an employee with the applicant’s knowledge and skills related to the operation of a flour mill. This is particularly so in regional Victoria where the mill is located (Myrtleford).  He gave evidence that the business attempted to recruit employees with the similar skills from Australia but that the applicants who responded to the advertisement did not wish to relocate to regional Victoria. He stated that if the applicant is not allowed to continue to work for Alpine Valley, the business may have to be closed.

31. He confirmed his understanding that the applicant’s visa was granted for a period of four years and that regardless of cancellation, his visa would have ceased on 7 May 2017. I enquired as to whether the Alpine Valley lodged new sponsorship and nomination applications with the Department nominating Mr Reza for the position in the business. The witness stated that the business did not lodge these applications. I noted that in his evidence he stated that the business may have to close if the applicant is not allowed to continue working for the business. I enquired as to why the business did not lodge new sponsorship and nomination applications considering the applicant’s importance for the business operations.

32. The witness stated that the business directors are involved in a dispute and that he only found out about the problem with Mr Reza’s visa last week.

33. I observed that the business had more than 17 months to apply for approval of sponsorship and nomination applications. I further noted that the applicant is not prevented by public interest criterion (PIC) 4013 from re-applying for a temporary work visa once the sponsorship and nomination applications are approved by the Department in relation to the applicant.

34. 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

35. 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?

36. 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 was attached to the applicant’s visa.

37. This condition requires, inter alia, that the applicant must work only in the occupation listed in the most recently approved nomination for the holder. In this matter, the applicant was nominated to work as a production manager and the associated business nomination was approved by the Department on 6 March 2013.

38. Based on the evidence before it, including the oral evidence from the applicant, I am satisfied that during the period from 7 May 2013 (being the date of the visa grant) until 15 October 2013 (when the mill commenced production) the applicant did not work only in the occupation listed in the applicant’s most recently approved nomination, namely as a production manager, but has carried out installation of machines necessary for the operations of a mill and building work. Based on this finding, I am satisfied that the applicant was in breach of condition 8107, specifically condition 8107(3)(a)(i), of his visa. I am therefore satisfied that the ground for cancellation exists under s.116(1)(b).

39. As this ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

40. 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’.

41. 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 Affairs [2006] 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]

42. 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

43. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The purpose of the visa is to enable an employer 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 occupation of production manager is one of a limited number of occupations listed by the Minister as an occupation that can form the basis of an approved nomination. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Alpine Valley Flour Mill Pty Ltd as a production manager on a temporary basis. The Tribunal finds that this purpose no longer exists as the applicant’s visa ceased on 7 May 2017. In addition, based on the evidence before me I am not satisfied that the applicant worked only as a production manager for the sponsoring business. I give significant weight to this consideration.

    The reason for and extent of the breach

1. The applicant’s visa was subject to condition 8107. I am satisfied on the evidence before me that the applicant was aware of the condition imposed on his Subclass 457 visa.

2. Based on the evidence before me I am satisfied that the applicant did not work in his nominated occupation from 7 May 2013, being the day he was granted a Subclass 457 visa, until 15 October 2013, being the day the flour mill commenced production. I am also satisfied that the applicant spent a considerable portion of his time working as a machine operator which is not the occupation approved in the most recently approved nomination in relation to the applicant.

3. I consider the non-compliance to be significant, as the temporary business entry scheme is predicated upon a visa holder being employed by an approved business sponsor in an approved nominated position.

   Circumstances in which ground of cancellation arose

4. I find that the circumstances in which the ground for cancellation arose under s.116(1)(b) (breach of condition 8107) were brought about by the applicant, and were not beyond his control. I am satisfied that the applicant knew that he was allowed to work only in the occupation of a production manager and that, despite this knowledge, he continued to work on construction and machine installation until 15 October 2013. I give significant weight to this consideration.

   Past and present conduct of the visa holder towards the Department

5. There is no evidence before me that the applicant previously breached visa conditions. I am satisfied that he has been co-operative with the Department.

   Degree of hardship that may be caused

6. I have taken into consideration the applicant’s evidence that he had completed the equivalent of year 12 in India, and that his siblings and parents live in India. I accept that the applicant has a big family in India that he financially supports.

7. Considering his family composition, formal education completed in India and Australia and his work experience gained in Australia, the Tribunal is satisfied that the applicant will be able to re-establish himself in India.

8. Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created 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. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

9. I am satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

   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

10. The applicant is currently on a bridging visa as a result of the current review process. 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 has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

11. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

    Whether there would be consequential cancellations under s.140

12. There is no evidence that there would be consequential cancellations under s.140 of the Act.

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

13. 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).  

14. Based on the evidence before me, I am not satisfied 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

15. There is no evidence before the Tribunal regarding this matter.

    Any other relevant matters

16. On behalf of the sponsoring business, Mr Christopher Abuawad gave evidence that it is very difficult to find an employee with the applicant’s knowledge and skills in Australia, particularly in regional Victoria where the flour mill is located.  He claimed in his evidence that if the applicant is not allowed to continue to work for Alpine Valley, the business may have to be closed.

17. While I accept that the sponsoring business operates in the regional Australia, and is likely to be adversely affected if it was unable to employ the applicant, I do not accept that it will have to be closed if the applicant is unable to remain in Australia.

18. The witness confirmed in his evidence that he was aware that the applicant’s visa was granted for a period of four years and that regardless of cancellation, his visa would have ceased on 7 May 2017. Despite this knowledge, the business did not lodge fresh sponsorship and nomination applications with the Department nominating Mr Reza for the position in the business. I accept that the business directors were involved in a dispute. However, if the survival of the business depended on the applicant being able to continue to be employed, they would have done something to secure his stay in Australia. The business had more than 17 months to apply for approval of sponsorship and nomination applications.

19. I further noted that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once the sponsorship and nomination applications are approved by the Department in relation to the applicant.

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

    DECISION

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

    Antonio Dronjic
    Member