McDaid (Migration)

[2020] AATA 2596

McDaid (Migration) [2020] AATA 2596 (25 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Denis Eoghan McDaid

CASE NUMBER:  1909502

DIBP REFERENCE(S):  BCC2018/317882

MEMBER:John Cipolla

DATE:25 May 2020     

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

Statement made on 25 May 2020 at 4:57pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – change in employment – failed breath test at one mine site – removal from that mine site only – incorrect use of word ‘termination’ – still contracted with sponsor – decision under review set aside

LEGISLATION
Migration Act 1958, ss 104, 107, 109
Migration Regulations 1994, r 5.19; Schedule 2, cl 187.233

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 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. On 07 June 2016 the applicant was granted a Subclass 187 Regional Sponsored Migration Scheme visa. On 08 April 2019 the delegate cancelled the applicant’s RSMS 187 visa under s.109 of the Migration Act on the basis that he had not informed the Department of a change of circumstances with respect to his employment.

3. On 26 February 2019 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICCC) on the basis that they had received information from the nominating employer Catalpa Resources Pty Ltd in October 2017 that the applicant had tested positive for alcohol on the Sino Iron Ore Karratha worksite in March 2016, and that their employment had been terminated. The delegate noted that had the applicant disclosed this information as per their obligations under s104 of the Migration Act, they would not have satisfied criterion 187.233(1)(b) and they would not have been granted the visa. This information was put to the applicant for comment.

4. On 12 March 2019 the applicant responded advising that although he was removed from the Sino Iron Ore Project he had not actually been terminated from his position in the company and had been promised roles in future projects. The applicant advised that he had merely been removed from the Sino Iron Ore work site for breaching the zero-alcohol policy but that he retained his employment with Catalpa Group.

5. The applicant indicated that proof of his ongoing retention by Catalpa Group is evidenced by the fact that he was offered a further contract by Catalpa for a sub-contracting position at the Sino Iron Ore Cape Preston site in late 2016.  The applicant was not able to take up this role due to family circumstances in Ireland where an aunt had a life-threatening illness and the applicant returned to Ireland for a period of time to support his family through this. Evidence corroborative of the applicant’s return to Ireland was provided to the Department and has been provided to the Tribunal at review.  

6. The applicant advised that the next project that he was offered by Catalpa Group was in late 2018 at Mulla Mulla. The applicant explained that the reason for the delay in this sub-contracting position was attributable to a downturn in the mining sector at this time in Western Australia, something which has been corroborated by Catalpa Group in their evidence to both the Department and the Tribunal. The applicant explained that as a consequence of this downturn that after the grant of the visa he sought employment as a Carpenter with SVG Construction in the intervening period until such a time that another project was available for him through his employer Catalpa Group. The applicant believed that he still had ongoing employment with his sponsor at all times and that he had not breached s.104 of the Migration Act.

7. On 08 April 2019 the delegate cancelled the visa. The relevant discretionary considerations were taken into account by the delegate and duly considered with the delegate finding that the grounds for cancellation existed and there was no basis to set the cancellation aside.

8. At merits review the Tribunal has been provided with a substantial range of evidence.  This evidence has included a number of statutory declarations from the Directors of the visa holders employers Catalpa Group, Mr Barry O’Neil and Mr Fergus O’Neil, statutory declarations from the applicant, tax file number details for the applicant indicative of his employment with Catalpa Group, letters of offer pertaining to sub-contracting jobs provided to the applicant over an extended period of time along with evidence of payslips from Catalpa Group provided to the applicant. 

9. The applicant appeared before the Tribunal on 21 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Barry O’Neil. 

10. The applicant was represented in relation to the review by his registered migration agent Mrs Carol Lynch who also attended the review hearing.

11. 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

12. 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.

13. 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.

14. 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?

15. 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.104.

16. The delegate made reference to s.104 of the Act which states that “ if circumstances change so that an answer to a question on a visa application form is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.” The provision goes on to state that if an applicant is in Australia this only applies to changes of circumstances before the visa is granted.

17. The evidence before the Department and indeed before the Tribunal at review indicates that the applicant was in Australia, and as a consequence, s.104 only applies to changes of circumstances before the visa was granted which occurred on 7 June 2016.

18. The delegate noted in the NOICC that the applicant applied for the visa on 26 November 2015 and that before the grant of the visa on 7 June 2016 the applicant’s circumstances changed, making an answer that he provided on page 9 of his RSMS visa application to be incorrect in those new circumstances. The delegate noted that the visa holder was employed by the nominating employer to work as a Carpenter and that his employment with his nominating employer ceased in March 2016. The delegate concluded, based on this information, that “the nominated position to which the visa holder’s application related to was no longer a position nominated under regulation 5.19 as per the visa holders ENS/RSMS declarations on page 09 of his RSMS visa application.”

19. The issue before the Tribunal at review is whether the applicant’s employment by his nominating employer Catalpa Group Pty Ltd was terminated in March 2016 prior to the grant of the applicant’s visa on 16 June 2016. This requires a finding of fact based on an assessment of all the evidence before the Tribunal.

20. On 12 March 2019 the applicant provided a statutory declaration to the Department pertaining to his employment with Catalpa. The applicant stated that:

    I began working for Catalpa Resources Pty Ltd (Catalpa) in March 2013 as a carpenter. I worked hard and was soon promoted to carpenter supervisor. I am experienced in multiple carpentry disciplines including form work. Catalpa nominated me for permanent residence (subclass 187 visa) in November 2015. When the nomination application was submitted, it was my intention to remain working for Catalpa for many years to come. I submitted my application for a subclass 187 visa on 26 November 2015. When my visa application was submitted, it was my intention to remain working for Catalpa for many years to come. In March 2016, whilst working at the Sino Ore Iron project in Karratha, I failed a random breath test. Sino Ore Iron operates a zero-tolerance policy when it comes to alcohol. I blew 0.02 but that that was enough for me to be sent off site and sent back to Perth. Although I was barred from returning to that particular site, it was made clear to me that I would be offered a permanent position on the very next project to come along. I was not sacked for blowing positive. On the contrary, the directors of Catalpa made it very clear that I had a long-term future with the business. The mining sector was quiet at that particular time and Catalpa did not have another project that they could easily send me to. I had to wait until the next project was secured, which I hoped would be no more than a few months away.

21. Mr Denis O’Neil also provided a statement to the Department dated 12 March 2019 in which he advised the Departmental delegate that:

    Mr. Denis Eoghan McDaid is a past and current employee of Catalpa Resources Pty Ltd (Catalpa). Mr. McDaid joined Catalpa as a form work carpenter in March 2013. Mr. McDaid was an exceptional employee and was quickly promoted to carpenter/supervisor. Catalpa nominated Mr. McDaid for permanent residence under the Regional Sponsored Migration Scheme on 26 November 2015 (Subclass 187 – Direct Entry). The nomination application was approved. In March 2016 Mr. McDaid failed a random breath test whilst working on a Sino Ore Iron project in Karratha. The breath test used on site is not the type of test applied to drivers by the police. Had Mr. McDaid been driving he would have been well under the legal limit. Mine sites have zero tolerance for alcohol. Mr. McDaid blew slightly above zero (0.02), but that was enough for him to be sent off site. The Sino Ore project is a valuable part of our works portfolio and it was necessary for us to immediately terminate Mr. McDaid’s employment on that particular site. The client would not accept Mr. McDaid back on that site. Mr. McDaid was and is an exceptional employee and it was made very clear to him that he would be re-engaged for our next project. At no stage was Mr. McDaid ever sacked or made redundant (emphasis added). Mr. McDaid’s restart date was deferred until the next project, but things were quiet in 2016/2017 due to a downturn in mining. In the meantime, Mr. McDaid commenced employment as a carpenter with a local company called SVG. It was our understanding that Mr. McDaid’s employment with SVG would be temporary. On the 10th November 2016 the position of Carpenter Supervisor was offered to Mr. McDaid for a new project that Catalpa won at SINO Iron in Cape Preston WA 6714. This project was due to commence on 10th December 2016. (See letter attached) Unfortunately, Mr. McDaid was unable to accept this position as he had to return to Ireland for personal matters on the 14th December 2016. (See attached flight details and explanation provided by Mr. McDaid.) On the 1st September 2018, Mr. McDaid was again issued a letter of offer for the position of Carpenter Supervisor on a new project won by Catalpa at Mulla Mulla Camp, Newman WA 6753 due to start on the 22nd October 2018.

22. In a submission dated 19 February 2020 the applicant’s representative Mrs Carol Lynch stated that the grounds for the cancellation of the applicant’s visa for breach of s.104 of the Act did not exist as the applicant was not terminated from his employment with Catalpa, he was merely stood down from one mine site for breaching the mine site’s zero alcohol policy. The argument that has been raised is that the standing down of the applicant from this worksite did not constitute his termination from Catalpa. A range of evidence in support of this was provided to the Tribunal at review.

23. Mr Fergus O’Neil the brother of Mr Barry O’Neil provided a statutory declaration to the Tribunal dated 12 May 2020. In it, Mr O’Neil reiterates the comments made by Barry O’Neil in his statement to the Department of March 2019. Namely that the applicant had been engaged by Catalpa in 2013 as a Carpenter and Form Worker and that he quickly rose through the ranks, becoming a supervisor of a team or workers.  Mr O’Neil makes reference to the applicant’s skill set and abilities.  He also notes that In March 2016 the applicant was stood down from the Sino site for failing a blood alcohol test. The applicant then returned to Perth and remained on the books of Catalpa awaiting the next sub-contracting opportunity that arose for the business.  This, due to a mining downturn, took longer than expected, but Mr O’Neil make it clear in his statutory declaration that “Denis was not sacked and his employment was never terminated.”

24. At hearing on 21 May 2020 the Tribunal took direct evidence from the applicant pertaining to the cancellation of his visa. The applicant confirmed his removal from the Sino workplace in March 2016 for failing a blood alcohol test. The applicant stated that his employer Catalpa were advised of the breach and the applicant was removed from the site and returned to Perth. The applicant advised that he was retained by his employer after his removal from the Sino site and that whilst he was in Perth his employer was attempting to engage another subcontracting arrangement to which the applicant could be deployed. An opportunity arose for a subcontracting position on a mine site in the latter part of 2016, however this coincided with the applicant’s aunt falling gravely ill in Ireland and the applicant having to return to Ireland to spend some time supporting his family. Upon return to Australia the applicant advised that he remained on the books of Catalpa as an employee and was awaiting a further subcontracting position. The applicant advised that because of the downturn in the mining industry at this time that such opportunities became scarce and the applicant obtained employment with a construction business in Perth, SVG, as an interim measure until such time as a further subcontracting opportunity with Catalpa arose.

25. The Tribunal took evidence from Mr Barry O’Neil one of the Directors of Catalpa. Mr O’Neil confirmed that the applicant was employed by his business to work as a Carpenter and had risen through the ranks to a supervisory position. Mr O’Neil made reference to the applicant’s removal from the Sino mine site for failing a blood alcohol test noting that the mine site had a zero alcohol policy. Mr O’Neil stated that the applicant was not sacked from his company and was still on the books of the company after his removal from this worksite. Mr O’Neil said that the company had invested in the applicant sponsoring him initially for a Subclass 457 visa and then making the application for an RSMS visa on behalf of the applicant, advising that the applicant was considered to be a valuable resource of the business. Mr O’Neil confirmed that securing a further subcontracting opportunity was slow, due to the downturn in the mining industry in Western Australia. Mr O’Neil advised the Tribunal that the mining industry had substantially picked up in recent years. Mr O’Neil advised that the applicant would contact the business on a regular basis to ascertain whether there was a prospect of a further subcontracting opportunity.

26. Mr O’Neil made reference to a letter that was provided by his business to the Department that was prepared by a previously engaged migration agent to ensure that the business complied with its reporting obligations to the Department. This letter is dated 23 October 2017. Mr O’Neil advised that the migration agent that prepared the letter has been deregistered due to competence issues and that the migration agent in the letter incorrectly advised that the applicant’s employment had been terminated in March 2016. Mr O’Neil reiterated that this was not the case and that the applicant was retained by his business as an employee after his removal from the Sino site in March 2016 for the alcohol breach.

27. The Tribunal has had recourse to the letter of 23 October 2017. The Tribunal notes that the letter when referring to reportable auditing issues to the Department does indicate at point 1) “Dennis McDaid had his employment terminated with us in March 2016 after failing a random alcohol test at work. We realise that the Department should have been informed of this fact.“

28. The Tribunal notes that this point in the letter of 23 October 2017 is footnoted. The footnote indicates that “as I am sure you are aware, all of the major resource sites in the Pilbara, where said employees were deployed, have zero tolerance for drugs and alcohol in the workplace. We also employ a strict policy whereby anyone who fails either a drug or alcohol test is removed immediately from the workplace as it is detrimental to our efforts to build rapport with our clients and securing future contracts.”

29. The Tribunal made reference at the hearing to the letter of 23 October 2017 and to the footnote and invited Barry O’Neil to comment on this. Mr O’Neil once again stated that the letter was written on behalf of his business by a now discredited migration agent. Mr O’Neil stated that due to the fact that mining sites in the Pilbara have a zero alcohol tolerance, that any employee of his business who is the subject of an adverse test is removed immediately from that workplace. Mr O’Neil confirmed that this just referred to the applicant’s removal from the Sino site and was not indicative of the applicant being terminated or ceasing employment with his business.

30. The Tribunal at hearing deferred to the applicant’s representative Mrs Carol Lynch. The Tribunal invited Mrs Lynch to make reference to any points that she wished to raise pertaining to whether or not the grounds for cancellation existed. Mrs Lynch noted that there was no formal termination notice given to the applicant. Mrs Lynch stated that the evidence unequivocally established that the applicant retained ongoing employment with Catalpa Group beyond his removal from the Sino site in March 2016. Mrs Lynch pointed to the fact that this was substantiated by new contracts of employment that had been offered to the applicant, tax file details pertaining to the applicant, evidence of health checks undertaken of the applicant to ensure that the applicant was ready for future deployment as a subcontractor to Western Australian mining sites, along with payslips for the applicant.

31. The evidence before the Tribunal indicates that the applicant was sponsored by Catalpa Group to work as a Carpenter/Supervisor for the business on remote mining sites in Western Australia under the now obsolete 457 visa program.  The evidence indicates that the applicant was considered to be a valuable employee of Catalpa Group during the period that he held the 457 visa and for this reason Catalpa decided to sponsor him for permanent residence under the RSMS visa program.

1. The evidence indicates that the applicant was removed from the Sino site in March 2016 for failing a random breath test. The evidence indicates that this removal was due to the fact the Sino site maintained a zero alcohol policy and the applicant had registered a low blood alcohol reading of 0.02.  As a consequence the applicant returned to Perth, which was his home base, to await another subcontracting opportunity to arise with his employer Catalpa Group.

2. The evidence indicates that the applicant’s visa was granted in June 2016. The evidence indicates that the applicant was clearly retained by his employer after his removal from the Sino site in March 2016 as he was offered another sub-contracting position as a Carpenter/Supervisor on the 10 November 2016. However, due to a close family relative falling ill in Ireland, and the applicant having to return to Ireland to support his family, the applicant was not able to accept this position and he advised Catalpa Group of his inability to accept this contract and Catalpa Group accepted the reasons for this.  Mr Denis O’Neil and Mr Fergus O’Neil have both made it clear in their ongoing evidence overtime that the applicant remained on the books of Catalpa Group and that as soon as the next sub-contracting opportunity arose he would be deployed to work as a Carpenter/Supervisor.

3. The evidence indicates that the Catalpa Group, cognisant of its ongoing reporting obligations to the Department, wrote to the Department on 23 October 2017.  Mr Barry O’Neil advised the Tribunal that a previously engaged visa consultant, Mr Michael Cullerton, had advised of a number or reportable issues.  The letter noted the applicant’s employment was terminated in March 2016 but the footnote then provides further clarification of this stating that “ all of the major resource sites in the Pilbara, where said employees were deployed, have a zero tolerance for drugs and alcohol in the work place. We also employ a strict policy whereby anyone who fails either a drug or alcohol test is removed immediately from the workplace as it is detrimental to our efforts to build rapport with our clients and to securing future contracts.”

4. The applicant’s removal from the workplace in line with Catalpa’s policy is evidenced by the applicant immediately returning to Perth after the breach.

5. The evidence provided by the Directors of Catalpa is that the word ‘termination’ in this letter was incorrectly used.  The footnote refers to an employee of Catalpa failing an alcohol or drug test being removed from the site where that infringement occurs.  Having regard to this evidence along with the evidence provided by the two Directors of the business and the evidence of the applicant, the Tribunal is satisfied that the applicant was not terminated. He was merely removed from the Sino site in March 2016 and remained on the books of Catalpa and was offered a further sub-contracting opportunity on 10 November 2016 which is evidence that corroborates the applicant’s ongoing retention by Catalpa.

6. 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.

7. 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

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

   John Cipolla
   Senior Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (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.

   97Interpretation

   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).

   98Completion 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.

   99Information 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.

   100Incorrect 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.

   104Changes in circumstances to be notified

   (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

   (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

   (4)Subsection (1) applies despite the grant of any visa.

   107Notice 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.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.