Kuldeep Singh (Migration)

[2019] AATA 1291

Kuldeep Singh (Migration) [2019] AATA 1291 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kuldeep Singh

CASE NUMBER:  1719023

HOME AFFAIRS REFERENCE(S):           BCC2017/1938947

MEMBER:Tigiilagi Eteuati

DATE:9 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 09 April 2019 at 3:38pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – compliance with visa condition – work only in occupation listed in approved nomination – Transport Company Manager – duties performed aligned with those of a Truck Driver – consideration of discretion – remain onshore pending outcome of subclass 482 visa application – temporary separation from wife – nature of employer’s business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 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(1)(b) of the Act on the basis that the applicant had breached the condition of his visa to work only in the occupation listed in the most recently approved nomination for the holder. 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 10 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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?

7. 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 attached to the applicant’s visa.

8. Condition 8107(3)(a)(i) provides that a subclass 457 visa holder must work only in the occupation listed in the most recently approved nomination for the holder.

9. The delegate’s decision sets out information relating to the applicant’s nominated occupation and its reasons for concluding that he was not working in his nominated occupation:

   “The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is OZ GILL & SONS PTY LTD (the sponsor) whose nomination was approved on 01 March 2016 for him to work for them in the occupation of Transport Company Manager (ANZSCO code: 149413).

   In submitting this nomination, the sponsor provided the following list of roles and responsibilities for the position of Transport Company Manager:

   ●In charge of day to day operations including the organisation of the transport of goods, as contracted, to reach their required destination within the timeframes specified;

   ●Responsible for the dispatching and tracking of trucks, ensuring that the activities associated with the arrival, departure, loading and unloading of goods are completed satisfactorily;

   ●Maintenance of transport vehicles / trucks, equipment and fuel;

   ●Managing and monitoring of drivers, including ensuring that they are complying with relevant transport policies, legislation, procedures and WH&S requirements;

   ●liaising with clients to determine requirements, receiving orders and planning transport schedules, as required;

   ●Ensuring goods are stored and transported in accordance with client requirements;

   ●Maintaining accurate administrative records and preparing statements and reports, as required;

   ●May assist in the purchase or leasing of vehicles and / or trucks, as required;

   ●Organising vehicle checks; and

   ●Responsible for being aware of all transport and occupation health and safety legislation and procedures to ensure company compliance.

   Qualifications and work experience

   Post-secondary education or training in management and/or business is required; and Work experience in a Transport environment is preferable.

   ●According to the Australian Bureau of Statistics’ website at: a Transport Company Manager is defined by the Australia and New Zealand Standard Classification of Occupations (ANZSCO) as follows:

   149413 TRANSPORT COMPANY MANAGER

   Organises and controls the operations of an enterprise that operates a fleet of vehicles to transport goods and passengers. Registration or licensing may be required.

   The following evidence indicates that the visa holder may not be undertaking work only in the occupation listed in the most recently approved nomination, that is, as a Transport Company Manager as defined in the above.

   ●On 02 February 2017 Departmental officers attended the sponsor’s business address of 17 Lilac Street, Daisy Hill, QLD, 4127. When arriving to the premises, officers met briefly with the wife of the Director. She advised that the visa holder is an employee, and that he do not work at this address as he is a ‘driver’ and that business trucks are not kept at this address.

   ●On the same day, Departmental officers conducted a telephone interview with the company Director. The Director advised the officers that the visa holder work 15 to 30 minutes daily at the office, and that the rest of the time the visa holder is ‘on the road’. He provided that the visa holder do not do a permanent run, however he drive for the sponsor once a week and/or fill in for drivers on sick leave. He further provided that that the visa holder role also includes sourcing new contracts, maintaining the fleet and training new drivers in safety techniques.

   ●On 12 April 2017, Departmental officers interviewed the visa holder via telephone in relation to the duties in his nomination occupation. The visa holer provided that he is the Transport Manager and that his duties are to look after the transport. He used an example that a driver will contact him if there is a breakdown or problem with the truck. He then provided that he will take the truck to the workshop or have it towed if not drivable. He also advised Departmental officers that he train new truck drivers on how to fill out paperwork and where to go on a run. He provided that he liaise with the workshop to discuss mechanical issues such as breakdown, flat tyres etc.

   ●Furthermore in relation to the phone interview, the visa holder provided that he only drive trucks if a driver is on holiday or is sick to cover them. When the visa holder were asked how often he drive the trucks, he provided that he drive one or two days every two to three weeks. He then changed his response to one to two days each month. He also advised that he did not think he has seen the list of duties for his position provided with his nomination. The visa holder also provided that that the busniess has no office and his role requires him to move around.

   ●Further information gathered by Departmental officers provide that the visa holder do not appear to be responsible for dispatching and tracking trucks, as he advised that he does not have anything to do with contracts. The visa holder provided that he does not liaise with clients, as clients deal with subcontracted companies. In relation to managing and monitoring of drivers, the visa holder advised that drivers only contact him if there is a problem with the truck, or if they require a day off. The purchasing/leasing of vehicles is the responsibility of the Director.

   ●In regards to the amount of time visa holder drive trucks for the sponsor, the Director and the visa holder provided conflicting information. However, driving trucks is not listed as a duty on the position description. It was also provided by the Director that his wife is a 'silent' Director, and she referred to the visa holder as a 'driver' for the business.”

   At time of nomination, the sponsor provided a list of duties and responsibilities (see above) for visa holder nominated position of Transport Company Manager. On the basis of these duties, his nomination was approved on 01 March 2016. Based on the information obtained by Departmental officers, the sponsor and visa holder, it appears that the visa holder is not undertaking the duties outlined in his most recently approved nomination, or in line with the definition of Transport Company Manager provided by ANZSCO . The evidence and information gathered indicate that the majority of duties performed are of a lesser skilled role and are aligned with those of a Truck Driver (ANZSCO 733111). According to the Australian Bureau of Statistics’ website at: ausstats/[email protected]/ Previousproducts/1220.0Search02006?opendocument a Truck Driver is defined by the Australia and New Zealand Standard Classification of Occupations (ANZSCO) as follows:

   Drives a heavy truck, requiring a specially endorsed class of licence, to transport bulky goods. Registration or licensing is required.

   This indicates that the visa holder visa may not have complied with paragraph 8107(3)(a)(i) of condition 8107 attached to the visa, because he must work only in the occupation listed in the most recently approved nomination for the holder.”

10. The applicant has conceded that the ground for cancellation of his visa in section 116(1)(b) was enlivened in this case because the applicant had not worked only in the occupation listed in the most recently approved nomination for the holder, that is, a transport company manager. However, the applicant submitted that the discretion to cancel the applicant’s visa should not be exercised in this case.

11. The Tribunal accepts, on the evidence before it, that the applicant did not work as a transport company manager and therefore has breached condition 8107.

12. 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 visa should be cancelled.

    Consideration of discretion

13. 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’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

14. The applicant told the Tribunal that he had originally arrived in Australia in 2008 as the holder of a Student visa. He was granted a subclass 457 visa in February 2015 which was to expire in February 2019.

15. The applicant began working in restaurants but the nominating restaurant ended up withdrawing their nomination application. Oz Gill & Sons Pty Ltd (Oz) made a nomination application in relation to the applicant for the position of transport company manager. That nomination was approved on 1 March 2016.

16. The purpose of the applicant’s most current stay in Australia was to work as a transport company manager for Oz.

17. The Tribunal notes that, even if the applicant’s visa had not been cancelled, it would have expired in February 2019. The applicant is aware that he could have applied for a Partner visa on the basis that his wife is a permanent resident. However, the applicant’s representative pointed out that, as the applicant’s visa has been cancelled, he would not meet the criteria in Schedule 3 to the Migration Regulations unless the Minister found that there were compelling reasons for the grant of the visa. In any event, the applicant submitted that he is not in a financial position to afford the application fee for a Partner visa at present whether that application were to be made onshore or offshore.

18. The applicant indicated that he intends to apply for a subclass 482 visa which would require a further nomination. He said that, if he is successful in the matter before the Tribunal, he will be able to apply onshore for a subclass 482 visa whereas, if he is unsuccessful, he will have to depart Australia and make that application offshore. That appears to be the utility of the proceedings before the Tribunal.

19. The applicant indicated that he would like to remain onshore pending the outcome of a subclass 482 visa application rather than having to return to India and remain there pending the outcome of a subclass 482 visa application.

20. The applicant’s wife indicated that she wishes for her husband to remain in Australia to provide her with care and support. She indicated that she currently has a medical condition which has prevented her from conceiving. She said that she is currently undergoing treatment in relation to that condition. She said that, if the applicant was required to return to India to await the outcome of a future visa application, she wished to return with the applicant, however that she would need to remain in Australia during her current medical treatment.

    The extent of compliance with visa conditions

21. The applicant has breached condition 8107 of his visa and it appears that he has done so since March 2016.

    The degree of hardship that may be caused

22. As mentioned previously, the real utility of these proceedings to the applicant and his wife, is that, if the applicant is successful before the Tribunal and the cancellation decision is set aside, he will be able to apply in Australia for a subclass 482 visa and is likely to be able to remain here pending the outcome of that application. If he is unsuccessful before the Tribunal, he will have to return to India to make the application and to await its outcome.

23. This may result in the temporary separation of the applicant from his wife as the applicant’s wife has indicated that she may need to remain in Australia to continue her medical treatment. However, the applicant’s wife has indicated that she will return to India with the applicant once her treatment is completed.

24. The Tribunal accepts that if the applicant’s visa remains cancelled that this will cause some hardship to the applicant and his wife. However, the Tribunal notes that at present, it is not clear if the applicant would be allowed to work while awaiting the outcome of a subclass 482 visa.

    Circumstances in which ground of cancellation arose.

25. The circumstances in which the ground for cancellation arose are outlined above in the excerpt from the Minister’s delegate’s decision. In short, the applicant was not working in his nominated occupation of transport company manager and it appears that he was working as a truck driver instead.

26. The applicant has submitted that his failure to work as the transport company manager was beyond his control. He submitted that the nature of the business of Oz prevented him from carrying out the functions of a transport company manager. While the Tribunal considers that there is some weight to the submission, and has taken that into account in the exercise of the discretion, the Tribunal does not accept that the applicant’s failure to work in his nominated occupation was fully outside of his control. The applicant could have insisted on Oz utilising him as a transport company manager. Further, the applicant could have sought another nomination from a different company so that he could comply with condition 8107.

    Past and present behaviour of the visa holder towards the department

    There is no evidence to suggest that the applicant has behaved in a negative manner towards the Department as to weigh against him in the exercise of the discretion.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

27. There are no other persons whose visas would be cancelled as a consequence of the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision

28. As mentioned above, had the applicant’s visa not been cancelled it would have already expired in February 2019. Thus, even if he were successful before the Tribunal, he would not retain a subclass 457 visa. Instead, he would hold a Bridging visa for a short period of time during which he has said that he would apply for a subclass 482 Visa onshore. It would be likely that he would be granted a further Bridging visa while his subclass 482 visa application was being processed.

29. If the cancellation decision is affirmed, the applicant will hold a Bridging visa for a short period of time after which he will be required to depart Australia. If the applicant fails to depart Australia while he holds a visa he will be detained under s.189 of the Act and removed from Australia under s.198 of the Act.

30. The applicant has indicated that whether or not he is successful before the Tribunal he will make an application for a subclass 482 visa either in Australia if the cancellation decision is set aside, or in India if cancellation decision is affirmed.

31. The Tribunal notes that there is no bar on the applicant applying for, or being granted a visa, as soon as he departs Australia.

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

32. The applicant has not raised that any of Australia’s international obligations would be breached as a result of the cancellation of his visa and the Tribunal finds that no breaches of Australia’s international obligations would arise from the cancellation of the applicant’s visa.

    Conclusion

33. On balance, the Tribunal is of the view that the visa should remain cancelled, despite hardship to the applicant and his wife, and the other matters which weigh against affirming the decision to cancel the visa.  The visa was granted for a specific purpose. The 457 visa scheme was for businesses in Australia to be able to employ foreigners for the purposes of fulfilling specific roles in circumstances where local businesses cannot find employees in Australia to fulfil those specific roles.  The applicant was nominated to fill a specific role as a transport company manager and did not work in that role.

34. In addition, there is nothing stopping the applicant from applying for another skilled visa offshore, and while there may be some difficulty in the applicant returning to India without his wife to await the outcome of any future application for a skilled visa, the Tribunal does not consider that this hardship is insurmountable, or that any foreseeable hardship in this case would provide a reason sufficient to exercise the discretion to set aside the delegate's decision. 

35. Considering the circumstances as a whole, the Tribunal has decided the visa should remain cancelled.

    DECISION

36. The Tribunal affirms the decision to cancel the applicant’s subclass 457 visa.

    Tigiilagi Eteuati
    Member