Mylett (Migration)

Mylett (Migration) [2017] AATA 2756 (12 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gavin Mylett
CASE NUMBER:  1606768
DIBP REFERENCE(S):  BCC2015/3787750
MEMBER:Hugh Sanderson
DATE:12 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 856 (Employer Nomination Scheme) visa.

Statement made on 12 December 2017 at 11:02am

CATCHWORDS
Migration – Cancellation – Employer Nomination (Residence) (Class BW) visa – Subclass 856 (Employer Nomination Scheme) – Range of responsibilities and duties – Pay rate – Description of the work

LEGISLATION
Migration Act 1958, ss 5, 97-101, 103, 107, 109, 140M
Migration Regulations 1994, reg 2.86

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 856 (Employer Nomination Scheme) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the delegate found that the applicant had provided incorrect answers and bogus documents in support of his visa application for the subclass 856 Employer Nomination Scheme visa. Further, the delegate found the reasons to cancel the visa outweighed the reasons not to cancel 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.

Background

The applicant is a citizen of Ireland and is currently 34 years old. He first entered Australia in 2007 holding a subclass 417 Working Holiday visa. He was granted a subclass 457 Business (Long Stay) visa in 2008. He was then granted a subclass 856 Employer Nomination Scheme visa on 15 July 2011. He was sponsored in this application by his employer, Murphy Pipe and Civil Constructions Pty Ltd (hereinafter “the company”). It was stated that his position within the sponsor’s organisation was a project coordinator.
In support of the application, signed by the applicant on 4 May 2011, the applicant claimed that he had been employed at the company from 16 January 2009 as a project coordinator. The applicant provided a letter dated 23 May 2011 from the company stating that the applicant commenced full time employment on 16 January 2009 on approval of his subclass 457 visa as an on-site project coordinator/administrator and that they were nominating him for a permanent position within the company for that occupation.
Based on this information and the applicant meeting the other criteria the subclass 856 visa was granted to the applicant on 15 July 2011.
On 20 August 2014 the Department of Immigration and Border Protection (the Department) commenced monitoring the company’s compliance with the Standard Business Sponsorship obligations. On 8 December 2015 the Department found the company to have failed to comply with reg.2.86 of the Migration Regulations 1994 to ensure that the primary sponsor person works or participates in the nominated occupation, program or activity. The Department found that the company had failed to satisfy this obligation on 38 occasions for different employees. The Department found that the employment by the company of the applicant was one of the occasions where the company had not employed a person in the nominated position of on-site project coordinator/administrator.
The Department took action to bar the company from making future applications for approval as a standard business sponsor. The Department made a decision on 8 December 2015 imposing a four year bar on the company pursuant to s.140M of the Act. The company applied for a review of that decision before the Tribunal (differently constituted). The results of that application are referred to below.
The Department wrote to the applicant on 15 January 2016 with a Notification of Intention to Consider Cancellation under s.109 of the Act (NoICC). In that letter, the allegation was that the applicant had provided incorrect answers in his application for the 856 visa and a bogus document, being the letter in support from the company, as it was obtained because of a false or misleading statement being that he had been employed by the company as an on-site project coordinator/administrator since 16 January 2009. It was claimed that information obtained by the Department indicated that he had not worked for the company in the nominated position. The applicant was invited to comment or respond to this issue and provide any submissions as to why his visa should not be cancelled.
The applicant provided a statutory declaration in response to this notice. The applicant’s agent provided submissions in response to the NoICC on 17 February 2016 where the following was claimed:

It was not accepted that the company had not complied with reg.2.86 or that the applicant had provided false or misleading information or bogus documents in support of his application;
The company had lodged an application with the Tribunal disputing the finding that they had not complied with reg.2.86 with respect to the applicant and therefore the issue had not been finally determined;
As that issue had not been finally determined, it cannot be claimed that the Minister’s delegate can be said to have reached a state of mind that there has been non-compliance pursuant to s.107;
The information on which it was based that incorrect information had been provided was not accepted as indicating the applicant had not been employed in the appropriate position;
The company spreadsheet entitled ‘Training Matrix (Main) Rev 11’ which listed the applicant’s position as ‘Labourer/TA’ was only a document to record whether a particular person on a project had undertaken any specific induction training and whether they possessed any particular qualifications, certificates and competencies and was not brought into being to record the person’s weekly job duties;
The Australian Worker’s Union application form dated 18 December 2008 when the applicant listed his occupation as ‘Dogman’ was made before he commenced working as a project coordinator/administrator;
Company spreadsheets referring to Enterprise Bargaining Agreement classifications for the applicant was for administrative purposes only and did not reflect the actual duties performed by the applicant;
A company document listing the applicant’s role as ‘pipe fitter’ and his employment classification as CW 3 which is untitled and undated cannot be relied upon to determine whether the applicant worked outside his nominated occupation;
The induction documents which did not indicate the applicant was working in the nominated position were only general induction documents required for all staff and therefore do not support a finding that the applicant was not working in the nominated position;
An email dated 17 October 2010 requesting the applicant be paid the leading hand allowance from his first day under the EBA only indicates that the company had properly remunerated the applicant for the work performed and he was routinely paid for the nominated position;
Documents dated after 15 July 2011 covering the period 8 March 2012 to 13 March 2012, which tend to demonstrate the applicant performed duties outside the nominated position, cannot be relied upon as the applicant had already been granted his permanent residence and the company was not required to ensure the applicant was working in any particular occupation;
The applicant maintains that he was working in the nominated position at the time the application was made and at least until he was granted the visa and thus the answers were correct;
The documents provided by the company in support of the application were not bogus; and
If the Department did find the applicant had not complied with ss.101 and 103 of the Act then there were compelling reasons for not cancelling the visa and set out those reasons.

The delegate who considered the application noted the following issues:

The position for which the applicant was nominated would be expected to undertake administrative duties only and would not be involved in operational matters;
The duties that were being performed by the applicant were related to the physical operations of the company as opposed to being administrative functions and were not consistent with somebody performing the duties of a project coordinator;
The incoming passenger cards of the applicant for the period from 2009 to 2011 states his occupation as ‘welder’ which is inconsistent with his nominated position as a ‘project coordinator’;
The fact that the applicant had been required to be paid the leading hand allowance from his first pay period and, as a leading hand is an operational role, this indicates the applicant was not performing an administrative role;
Although some of the documents referred to in the response may not be conclusive proof, taking all the information together the delegate could not be satisfied that the applicant worked as a project coordinator for the duration of his 457 visa; and
The applicant had not provided any information that he had any relevant qualifications or experience to undertake the role of project or program administrator which he would have been required to provide if he underwent a skills assessment conducted by VETASSESS (a vocational education and training assessment provider).

Taking all these factors into account, the delegate concluded that the applicant had not been employed as an on-site project coordinator/administrator and was instead employed in an operational role. The delegate found that the applicant was not working in his nominated position for the period that he claimed in his subclass 856 visa and therefore had provided incorrect information and a bogus document.
The delegate then considered whether the applicant’s visa should be cancelled. Taking into account the issues raised by the applicant, the delegate concluded that the reasons to cancel the visa outweighed the reasons not to cancel and accordingly issued a decision cancelling the applicant’s visa.
A decision by the Tribunal as to the company’s application for a review of the decision to bar them from making future applications for approval as a standard business sponsor was made on 3 March 2017. The Tribunal concluded a failure to satisfy the sponsorship obligations in reg.2.86 was established with respect to 16 nominees. With respect to 20 nominees, the Tribunal was not satisfied that the company had failed to satisfy reg.2.86. This was based in part on the fact that the Department had not provided to the Tribunal some or all of the material relied upon by the delegate and in the absence of being able to examine the material relied upon by the delegate the Tribunal was not satisfied that the company had failed to satisfy reg.2.86 in relation to those 20 nominees.
The applicant was one of the nominees on which the Tribunal was not satisfied the company had failed to satisfy reg.2.86 based on the fact the Department had not provided the material relied upon to find the breach.

Information to the Tribunal

The applicant departed Australia on 17 September 2016.
The Tribunal provided to the applicant’s agent the documents relied upon by the Department to find that the applicant had not worked in the nominated position as he had claimed. Various documents were provided by the applicant, including statements by his former human resources officer with the company, stating that he was employed in the nominated position. The applicant’s agent made submissions where the following was claimed:

Documents dated after the applicant received permanent residence relied upon by the Department are irrelevant as are undated documents;
Documents provided by the company indicate that the applicant was working as a ‘supervisor’ or a ‘leading hand’ which is the same as a ‘project administrator’ and the income he was receiving was commensurate with this position;
The CVs prepared by the applicant did not have the reason why they were obtained and as they would have been prepared for a specific reason, they would have identified specific tasks rather than describing the applicant as a ‘project administrator’;
The tickets obtained by the applicant and workplace health and safety training are required for those people supervising a work team and these do not indicate he was doing that work;
The company had confirmed that the applicant was working as an on-site project administrator;
The applicant’s employment prior to his employment by the company supports the position that he was employed as a project coordinator/administrator as he had acquired six years employment experience;
The nature of the applicant’s employment was directly related to the nominated Australian and New Zealand Standard Classification of Occupations (ANZSCO) position and the argument by the Department that he would not meet the VETASSESS criteria is irrelevant and he was not required to have a skills assessment;
The incoming passenger cards are not a reliable document to rely upon;
The leading hand allowance is paid to employees whose role was as a program or project administrator; and
The ANZSCO description of project or program administrator is broad and would apply to all industries.

It was submitted that the applicant had provided correct information to the Department in his application and that no bogus documents were provided.
The applicant appeared before the Tribunal on 21 August 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
The applicant said that when he was working at Eco Civil he was contacted by Murphy Pipe and Civil and was told of a supervisor role that was coming up. They put him in touch with their agent to apply for the 457 visa. After working for them for a number of years they said that they would sponsor him for his permanent visa and he was again put in touch with their agent. He said the agent prepared all the documents based on telephone conversations he had with her. The documents were posted to him to be signed. He never met the agent in person.
The applicant gave his work history. He said that he left school at age 15 and then got various labouring jobs. When working with Tom Walsh Construction, he would often be working on his own or sometimes as part of the team. He agreed that he was not a foreman as was described in the resume provided to the Department with his application.
The applicant said he came to Australia in 2007 and got work with Eco Civil after a friend had told him about the job and recommended him for the job. He said that he worked as a trenching machinist and also pipe layer. He provided details of the work he did with Eco Civil. He said that he took on more responsibility over the time that he was working there, including being appointed as the leading hand, but he did not consider himself as a supervisor. He worked with a crew of about four people and had a supervisor to whom he would answer. He did not sign off timesheets or do any other paperwork associated with the team.
The applicant said that he started working for Murphy Pipe and Civil when he was granted his 457 visa. He said that he had been offered a position with more responsibility and better pay. He said that his first job was doing pressure testing and quality assurance over a pipe line being constructed. He said that he did this job by himself. Another person had been appointed with him, but it was not necessary for two people to do the job. He said that he was going to be supervising the welders, but as they were inside the pipe it was too big a job to do both the quality assurance and supervise them. He said that he was in this job for about 10 or 11 months. There were 10 people on the work site, including himself. Their supervisor was James Smith. He said that every week or sometimes every day the engineer on the site would take the paperwork that he did for the quality assurance from him. The Tribunal suggested to the applicant that it was unlikely that if James Smith was the supervisor for only 10 or 11 people that the applicant would be a supervisor or project administrator for the same people. The applicant agreed with this.
The applicant said that he worked at Maleny in Queensland for about three months. He initially was involved in training up some of the younger guys and then participated in some training for himself including using survey equipment that would be important for leading hands or supervisors. He said that he did not have a crew at any time that he was working in Maleny.
The applicant said that he was then working on the Carnel Ridge and Soldiers Road project near Melbourne. He said that at first he was involved in preparing the site which included stripping the soil, identifying where the pipes would need to be delivered, setting up offices and service locations. He said that it was he and two subcontractors who did the work. He said that at the Soldiers Road project he was supervising a team and the only physical work he did himself would be to cut the pipes because he wanted to ensure it was done correctly. He said that the main contractor for the site was John Holland Constructions and he would need to answer to the main contractor. He said that there were a number of workers that he would supervise. There was a section supervisor who dealt with all the paperwork and the office side of the contract while he would look after the on-site issues. He would deal with various clients, including the Melbourne Water delegate and would be involved in site inspections and progress reports. He said that he was mainly dealing with the environmental and safety people from within the company and not outside clients.
The applicant did not know exactly how his pay was set. He said that the company would tell him he was on an EBA and he would just accept the amount that he was told by the company he would be paid. He said that this was because he was happy with what he was paid.
The applicant said that he was working on the Sino-Iron Project in Western Australia starting sometime after July 2010. His initial role there was to set up the office compound and repair workshop. This only took two or three days. He was then responsible for logistics which involved organising where the pipe dumps would be and familiarising himself with the overall project. He said that he was involved in various training courses, including four-wheel-drive training which was required by all staff at the site and also Occupational Health & Safety training for supervisors and managers. He again could not remember his pay rate, but said the company had told him what his base pay rate was and he just accepted this.
The applicant was then involved in logistics which involved directing the delivery of equipment to the work site when needed. This included the use of cranes, three prime movers and two forklifts. He had a complete set of plans and had to be able to redirect the equipment to where he considered it was necessary. He had a crew of seven workers to be able to implement his logistic plans. He said that he was in this position when he applied for his permanent residence visa. He continued working with the company after this in the logistics area in Chinchilla in Queensland from 2012 and other sites until he departed Australia in September 2016.
The applicant stated that he had never been involved in company sales and marketing policy as was stated at question 20 in the employer nomination form.
The applicant agreed with the Tribunal that the position he had with the company when he first started was not a project or program administrator. He agreed the work that he did in Melbourne did not involve him conducting the tasks of a project administrator. He said that when he went to Maleny that this also was not a position of a project administrator, but that he was only meant to be there for a short time and not the three months that he was involved in that project. He said that when he started working on the Soldiers Road project the nature of his work changed so that he would consider himself as a project administrator after that time.

The applicant could not explain why he had described his position as a ‘dogger’ in his union ticket. He said that he would generally try to get a work ticket for any position as he felt getting these qualifications was of benefit both to allow him to be employed and if he was to be a supervisor he needed to know how to do the work that he would be directing other people to do.
The applicant said that he was currently living in Thailand with his partner and their child and his step child. He said that he does not have any work rights in Thailand and they are currently living on his savings. He said that if the visa were refused he would be required to return to Ireland where he planned to have his wife join him. He was not sure about the work situation in Ireland or whether he would be able to find employment. He said that his parents and two older brothers continue to live in Ireland and he has a brother who lives in Scotland.
The applicant said that he was a hard-working person and was valuable to Australia. He said that it would be very difficult for him and his family if his visa was cancelled.
The applicant described the company’s paperwork and administration as ‘scrappy’. He said that they were a small company who grew into a large company quickly and this caused some problems.
After the hearing further submissions were made as to the use of the ANZSCO codes in immigration matters.
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

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.
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.

Did the notice comply with the requirements in s.107?

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 (being the NoICC referred to above) complied with the statutory requirements.
The critical issues before the Tribunal are, therefore, whether there was non-compliance in the way described in the s.107 notice and, if so, whether the visa should be cancelled.

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

The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.103 of the Act in the following respects:

The applicant provided incorrect answers to questions in his application by stating that he was employed by the company in the position of On-site Project Coordinator/Administrator for the period of 16 January 2009 to 27 June 2011; and
The applicant provided a bogus document in support of the application because the letter of support from the company was obtained because of a false or misleading statement, that being that he had been employed by the company as On-site Project Coordinator/Administrator since 16 January 2009.

In the delegate’s decision, the delegate considers that it would be expected that anyone working in the position of Program or Project Administrator would be undertaking administrative duties only and would not be involved in operational matters. The delegate noted that the applicant was involved in overseeing weld repairs and pressure testing and supervising other staff on site which appears to be related to the physical operations of the company as opposed to administrative functions.
In the decision record, the delegate draws heavily on the interpretation of project administrator made by VETASSESS, which in turn refers to the description of project administrator set out in ANZSCO. VETASSESS is a vocational education and training assessment provider. If the Department requires an applicant to have an assessment or if an applicant chooses to obtain an assessment to facilitate the processing of their application, applicants may use VETASSESS for this assessment. In this case, the applicant was not required to obtain such an assessment nor did he do so.
ANZSCO was developed in 2006 and is a skill-based classification of occupations for all jobs in the Australian workforce. The Australian Bureau of Statistics, which publishes ANZSCO, has given the following guidance in relation to the interpretation of ANZSCO occupation definitions:[1]
[1] Australian Bureau of Statistics website ANZSCO OCCUPATION DEFINITIONS
ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.
The definitional material describing each occupation is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO. The descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required.
Since 2006 the various occupation lists used by the Department for the purposes of approving skilled visas have been derived from ANZSCO.
The information in the application which was identified by the delegate as being incorrect was the statement that the applicant had been employed as a Project Administrator with Murphy Pipe and Civil from 16 January 2009 to 27 June 2011. As already noted, the detailed statement of service attached was a letter from the company dated 23 May 2011. The letter was also said to be bogus but the basis for this finding is less clear. Critical to the delegate’s conclusions were the findings that the applicant was employed in operational roles which were not ‘administrative roles’. This was said to be inconsistent with the role of a project administrator which was ‘administrative’. The delegate was not satisfied that the documents on record would indicate the applicant had been employed ‘solely’ as a project administrator for the duration of his 457 visa.
To understand these findings it is relevant to consider the ANZSCO description of the occupation of Project Administrator. The position of a project or program administrator is described in ANZSCO as follows:
CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
·developing, reviewing and negotiating variations to contracts, programs, projects and services
·responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected
·managing paperwork associated with contracts, programs, projects and services provided
·working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met
·advising senior management on matters requiring attention and implementing their decisions
·overseeing work by contractors and reporting on variations to work orders
·preparing and reviewing submissions and reports concerning the organisation's activities
·collecting and analysing data associated with projects undertaken, and reporting on project outcomes
·reviewing and arranging new office accommodation
Occupations:
511111 Contract Administrator
511112 Program or Project Administrator
511112 PROGRAM OR PROJECT ADMINISTRATOR
Alternative Title:
Project Coordinator
Plans and undertakes administration of organisational programs, special projects and support services.
Skill Level: 2
The Tribunal does not accept the delegate’s findings that the role of project administrator is purely administrative in nature. The position of project administrator, as described above, is a general description that would cover a broad and diverse range of occupations and industries. The definition recognises that qualification for the position may arise from relevant experience (assessed as at least three years) or formal academic qualifications which may require some on-the-job training. The description does not restrict the position to office work and expressly notes that the position includes the implementing of managerial decisions, overseeing work by contractors and reporting on variations to work.
Although it is noted in the delegate’s decision that VETASSESS would require a diploma or higher qualification, this is not a prerequisite in the ANZSCO definition. ANZSCO recognises that qualification for the position may arise from relevant experience of at least three years without any formal academic qualifications. The description goes on to state that if the person does have academic qualifications some on-the-job training may be necessary. The applicant does not have any formal academic qualifications and he has never made such a claim. The applicant claimed he was qualified for the position of program or project administrator based on his work history and it appears he was assessed on this basis. The letter from the company specifically states that they did not require the applicant ‘to complete the trade assessment to show us he has the work experience and relevant skill level necessary to complete the main tasks and duties required. His employment with us has proved that he does.’
The applicant was not required to undertake a skills assessment and it is clearly stated in his application that he did not have one. The skills assessment formula used by VETASSESS does not form part of the position description in ANZSCO nor was it part of the application. It is therefore difficult to understand why this was used as one of the grounds leading to cancellation. The Department may now have a policy which would have required the applicant to obtain a skill assessment from VETASSESS and, based on his qualifications, he may not have met that requirement. At the time of the application, however, the Department did not require the applicant to obtain a skills assessment. The information provided by the applicant to the Department specifically addressed the fact that he did not have any formal or academic qualifications and the assessment of his capacity to undertake the work of a project or program administrator was based on his work experience as observed by the company.
The applicant presented as a genuine and truthful witness before the Tribunal. His evidence about his work history and the roles he undertook was credible and was corroborated by various documents and reports.
The information provided by the applicant in his application and in the letter from the company makes clear that during his employment with the company over the stated time he was involved with on-site operations. His role with the company changed over the period that he was employed with them. At the start he was not directly involved in the administration of the projects he was engaged in, however, the level of his responsibility changed over the course of the period that he was employed by the company. This is not surprising in light of the fact that the applicant was engaged in different projects of different size and complexity and the applicant’s responsibility increased as the company placed him in different roles as their confidence in his capacity developed.
Although working on site, which would be expected in light of the industry the applicant was working in and this was made clear in the application and in the reference from the company, the Tribunal finds the applicant was directly involved in responding to inquiries and resolving problems in relation to the project to which he had been assigned. Over the course of his employment with the company he was required to prepare written reports, responding to problems concerning the projects, working with project managers and others to ensure that goals were met and overseeing the work of contractors and reporting on their work. He was required to set up on-site offices and service locations. Although he was involved in some work which was not administrative, this was only secondary to his primary role of administrating the project and supervising his crew.
The pay rate that the applicant was receiving over the course of his employment with the company indicates that he was employed in a senior position with significant responsibilities. His position in a non-administrative role and positions with less responsibility were transitional until he could be placed in projects where his full skills would be utilised by the company. The applicant’s career development started with him working as a labourer and he maintained various tickets and other qualifications to maintain his own skill level and also to have the experience and authority to supervise the labourers who worked under him.
The Tribunal finds that the duties performed by the applicant over the course of his employment with the company fall within the definition of a project administrator. They are consistent with the duties the applicant was said to have performed as set out in the letter from the company. The information provided by the applicant and in the letter from the company specifically states that the applicant was involved in on-site operations and required to follow instructions given by the project manager and construction supervisor to ensure that the work his crew members did followed those instructions. He was also required to direct the work of less experienced employees. This information was provided to the Department at the time of the application and it did not cause concern for the Department at that time that the applicant was not employed as a project or program administrator.
The Tribunal has taken into account the documentation obtained from the Department during the audit conducted on the company. As was accepted by the Tribunal in relation to the sponsorship bar review of the company, the company often did not accurately maintain documentation which reflected the true occupation of their employees. The manner in which the applicant was paid was simply accepted by him and the description of his pay rate by the company appears to have been done simply as the easiest way to reflect his pay rate rather than a description of the work actually being done by the applicant. As was stated by the applicant, the paperwork of the company appears to have been ‘scrappy’.
The Tribunal has taken into account the other evidence relied upon by the Department, such as the applicant’s incoming passenger card which described his employment as ‘welder’. The Tribunal finds that when considering the role the applicant was employed in whilst working for the company, this evidence is outweighed by the evidence given by the applicant at the hearing and the other information provided referred to above. The weight of evidence supports a finding the applicant was working as a project administrator as defined in ANZSCO.
The Tribunal finds therefore that the applicant did not provide false and misleading information in respect of his visa application describing his role as an on-site project coordinator/administrator whilst employed with the company. The Tribunal also finds that the letter provided by the company dated 23 May 2011 accurately reflects the range of responsibilities and duties that the applicant had undertaken whilst employed by them and is therefore not a bogus document.
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.
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

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 856 (Employer Nomination Scheme) visa.

Hugh Sanderson
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:

Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)    purports to have been, but was not, issued in respect of the person; or
(b)    is counterfeit or has been altered by a person who does not have authority to do so; or
(c)    was obtained because of a false or misleading statement, whether or not made knowingly.
Interpretation

In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)    giving particulars of the possible non‑compliance; and
(b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)    stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)    setting out the effect of sections 108, 109, 111 and 112; and
(e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)     requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)    otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)    visas of a stated class; or
(b)    visa holders in stated circumstances; or
(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

[2017] AATA 2756

12 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice