Naqvi (Migration)

[2020] AATA 541

Naqvi (Migration) [2020] AATA 541 (25 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Mohammad Awais Naqvi
Mrs Summyia Imam

CASE NUMBER:  1837867

HOME AFFAIRS REFERENCE(S):          BCC2018/1333197

MEMBER:C. Packer

DATE:25 February 2020

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 25 February 2020 at 4:43pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – not working in nominated position – sales and marketing manager also working as managing director of associated entities – sponsor barred from making further applications as standard business sponsor – discretion to cancel visa – factors for and against cancellation – long residence in Australia – adverse effect on businesses and workers – decision under review affirmed for first applicant, no jurisdiction for second applicant

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b),(g), (3), 140(1), 140M(2), 348

Migration Regulations 1994 (Cth), rr 1.03, 2.43(l)(iv), Schedule 8, condition 8107(3)(a)(i), (ii)(B)

Corporations Act 2001 (Cth), s 50AAA

CASES

Rani v MIMA (1997) 80 FCR 379

Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 December 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was in breach of condition 8107(3)(a)(i) as he was not working in his nominated position. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. A hearing was first scheduled for 19 June 2019. However, the Tribunal agreed to delay and reschedule the hearing in light of the second named applicant’s medical issues. The Tribunal’s letter dated 7 November 2019 invited the applicants to comment on or respond to information, and to provide information. 

5. The applicants appeared before the Tribunal on 7 January 2020 to give evidence and present arguments. The applicants were represented by their representative. The Tribunal explained to them that the only decision before the Tribunal is the decision with respect to the first named applicant.

6. The applicants were then allowed a month to provide information.

7. 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

1. 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): its holder has not complied with a condition of the visa.

2. 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?

s.116(1)(b) and condition 8107(3)(a)(i) & (3)(a)(ii)(B)

10. 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 457 visa granted on 30 June 2015. This condition requires, as relevant in this case:

8107

(3)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

(a)      the holder:

(i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

(ii)      unless the circumstances in subclause (3A) apply:

(A)must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

(B)if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor - must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

(C)if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor - must work only in a position in the business of the sponsor;

The sponsor Awasum Pty Ltd’s approved nomination and the applicant’s 457 visa

11.  On 10 August 2013 the company Awasum Pty Ltd (the sponsor) was approved as a standard business sponsor, and this ceased on 30 June 2015 (the same date as the grant of the applicant’s 457 visa) ostensibly as the sponsorship ceiling limit had been reached.

12. The Department’s file BCC2018/1333197 shows that on 20 March 2018 the Department decided, under s.140M(2) of the Migration Act, to bar the sponsor Awasum Pty Ltd for five years from making further applications as a standard business sponsor, and the effects of the sponsor bar are discussed later in this decision.

13.  On 30 June 2015 the sponsor’s nomination of an occupation of Sales and Marketing Manager (ANZSCO 131112) was approved.

14.  The ANZSCO Dictionary shows that Unit group 1311 ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations. Tasks include:

·     directing the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty

·     directing the development and implementation of strategies to promote an organisation's goods and services to as many people as possible

·     directing the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'

·     directing the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public

15.  Additionally, the ANZSCO Dictionary shows a Sales and Marketing Manager [131112]: 

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation. ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.

Skill Level: 1,   Specialisations: Business Development Manager; Market Research Manager

16.  On 25 May 2013 the applicant (and his wife, the secondary visa applicant) applied for 457 visas. The Department refused to grant the visas on 16 May 2014 on the basis that the applicant did not have the required work experience as a sales and marketing manager to satisfy the criteria. The applicants sought a review with the Tribunal, and in the review the applicant indicated amongst other things that he had worked as a full-time National Sales Manager for Awasum Pty Ltd (trading as Awasum Tractors) from 3 December 2010. On 14 May 2015 the Tribunal (differently constituted)[1] remitted the visa application with a direction that the first named applicant met cl.457.223(4)(da) for the visa. The Tribunal decision noted that it was satisfied the claimed tasks undertaken by the applicant in his role as National Sales Manager from November 2010 at Awasum Tractors was commensurate with the tasks listed in ANZSCO for a Sales and Marketing Manager. As well, that Tribunal noted the nomination of an occupation had expired but proceeded to a decision as it was satisfied a new nomination had been lodged with the Department on 13 April 2015.

[1] Tribunal case 1409880

17.  The sponsor’s nomination was subsequently approved on 30 June 2015, and also on 30 June 2015 the applicant was granted a 457 visa on the basis of the approved nomination of an occupation of Sales and Marketing Manager (ANZSCO 131112) to work for the standard business sponsor Awasum Pty Ltd. The applicant’s 457 visa had been granted on the basis that the holder met the requirements of subclause 457.223(4).

His work for Satzas Pty Ltd

18.  However, information before the Tribunal shows that the applicant, whilst holding the 457 visa granted on 30 June 2015, was performing tasks and work for Satzas Pty Ltd which had been a painting and decorating business.

19.  An ASIC extract[2] shows Satzas Pty Ltd had been registered on 18 May 2012 and the applicant had been a Director and Secretary until that ceased with effect from 6 September 2016. He had advised ASIC that he ceased being Director and Secretary on 1 July 2014, and the same notification to ASIC advised Muhammad Dogar had been appointed sole Director and Secretary on 1 July 2014. However, this notification was only received by ASIC on 6 September 2016 and so only took effect from that date.

[2] On 24 January 2018

20.  The Department’s Notice of Intention to Consider Cancellation (NOICC) letter dated 5 December 2018 then discusses the applicant’s involvement in Satzas Pty Ltd’s migration dealings with the Department (as summarised):

·On 5 May 2016 Satzas Pty Ltd submitted a Standard Business Sponsorship agreement. In this agreement, the applicant was listed as the Director.

·On 21 June 2016 Satzas Pty Ltd submitted an ENS Nomination for Nazish Zafar. In this nomination, the applicant signed a work reference letter dated 2 May 2016 as the Director.

·On 6 July 2016 Satzas Pty Ltd submitted an ENS Nomination for Amarjeet Kaur. In this nomination, a "Certification Form - Paying for visa sponsorship" was submitted, signed and dated by the applicant on 6 July 2016, and this listed the applicant’s position as Director. As well, an organisational chart for the business that had been submitted showed the applicant was the Director.

21.  On 19 December 2018 the applicant response to the Department’s NOICC letter of 5 December 2018, and key points were:

·     Awasum Pty Ltd began operating in 2009 and imported tractors and agricultural implements. However, competition became too great and so he decided to look for other business opportunities.

·     Awasum Pty Ltd imported home décor accessories and moved into interior design, and “Satzas came into being”. The Trustee decided to sell this profitable business to return some investment. He was only appointed Director Sales and Marketing of Satzas Pty Ltd; he was never an owner or owned any shares- which were owned by “Awasum/Trust”.

·     The business Your Local Garage came into being, and he was only ever Director Sales and Marketing and he performed sales and marketing duties. He was never an owner or owned any shares- which were owned by “Awasum/Trust”.

·     CRM Property Services Pty Ltd was a cleaning business. He was only ever Director Sales and Marketing and he performed sales and marketing duties. He was never an owner or owned any shares- which were owned by “Awasum/Trust”.

·     All of these companies are associated entities as defined in r.1.03.

·     He signed documents for Satzas Pty Ltd in May to July 2016 as he was Director Sales and Marketing.

·     The workers interviewed by the Department only worked as mechanics and had no idea how the sales and marketing department worked or how customers were brought in.

·     Coburg office lease is “owned” by Awasum Pty Ltd and Your Local Garage Pty Ltd, and the Campbellfield office lease was “owned” by Awasum Pty Ltd.

·     Awasum Pty Ltd is now involved in Kids fashion and accessories as Sibia Palace.

·     There is no ground for visa cancellation as he had been working as a Sales and Marketing manager for Awasum Pty Ltd, including when it expanded its branches to CRM Property Services Pty Ltd, Your Local Garage Pty, Sibia Palace.

·     Naqvimam Family Trust is a family trust. He had been in Australia since 2003 and his wife joined him in 2006. They have a lot of investment here, and 16 employees.

22.  The applicants were invited to comment on this information in the Tribunal’s s.359A letter dated 7 November 2019. The applicant’s response on 21 November 2019 largely repeated the key points made in the earlier response:

·     Naqvimam Family Trust was a family trust over Awasum Pty Ltd. Satzas Pty Ltd, Your Local Garage Pty Ltd, and CRM Property Services Pty Ltd- had been associated entities of Awasum Pty Ltd.

·     The applicant’s job in Awasum Pty Ltd had been to plan, organise, control and coordinate the Sale and Marketing activities.

·     Awasum Pty Ltd went into importing home décor accessories, and so Satzas Pty Ltd came into being. The Trustee subsequently decided to sell this company. He had been appointed Director Sale and Marketing, and performed sales, marketing and business development duties.

·      Awasum Pty Ltd had employees and equipment from its declining tractor and machines import business, and so Your Local Garage Pty Ltd came into being. He had been appointed Director Sales and Marketing and performed sales, marketing and business development duties.

·     CRM Property Services Pty Ltd came into being after he attended a National Achievers Conference as a representative of Awasum Pty Ltd. He had been appointed Director Sales and Marketing and performed sales, marketing and business development duties.

·     The applicant’s signing of Satzas Pty Ltd’s documents in 2016, and participating in the interview, was purely incidental as he was merely representing the business, rather than working within the business. In 2016 he had been appointed Director Sales and Marketing of Satzas Pty Ltd, and on 9 November 2017 he was authorised to sign documents on the Director’s behalf as the Director was overseas. (The Tribunal notes this is a reference to the information in the delegate’s decision[3] that on 9 November 2017 Satzas Pty Ltd submitted an ENS nomination for a person. In the nomination was a work reference letter dated 10 October 2017 signed by the applicant as Director. When the applicant was interviewed on 5 December 2017 he advised he signed the document.)

·     The workers interviewed by the Department only worked as mechanics and had little knowledge of his tasks and duties. The Tribunal should disregard the responses by the mechanics.

·     Coburg Office lease is held by Awasum Pty Ltd and Your Local Garage Pty Ltd. The Cambellfield Office lease was held by Awasum Pty Ltd.

·     Awasum Pty Ltd is now involved in Kids fashion and accessories as Sibia Palace.

[3] The delegate’s decision was provided to the Tribunal by the applicant

23.  The applicant provided additional documents including (not all are listed):

·     Accountant’s letters dated 10 July 2019 and 14 February 2018 that stated Awasum Pty Ltd formed part of a trust structure with Your Local Garage Pty Ltd and CRM Property Services Pty Ltd. Satzas Pty Ltd had also been part of the trust structure until it was sold to a new owner in approximately September 2016.

·     Profit and loss statements for Awasum Pty Ltd for 2016 and 2017 that showed in the 2016 fy, loans of $65,000 to Your Local Garage Pty Ltd and $100,000 to Satzas Pty Ltd.

·     Profit and loss statements for Your Local Garage Pty Ltd and Satzas Pty Ltd for 2016 and 2017 that showed loans from Awasum Pty Ltd as a liability.

·     Bank account details for the businesses, including for CRM Property Service, and sales transactions relating to Sibia Palace.

·     A lease concerning a Coburg property, signed on 1 August 2016. The document was executed by: Your Local Garage Pty Ltd (applicant signed as Sole Director & Sole Company Secretary); and Awasum Pty Ltd (applicant 2 signed as Sole Director & Sole Company Secretary). Guarantors were the applicant and applicant 2.

·     ASIC extracts ostensibly from 8 December 2017, and single page, that show:

o   Awasum Pty Ltd, the secondary 457 visa holder had been the sole shareholder, Director and Secretary.

o   Your Local Garage Pty Ltd, the applicant had been the sole shareholder, Director and Secretary.

o   CRM Property Services Pty Ltd, the applicant had been the sole shareholder, Director and Secretary.

o   Satzas Pty Ltd, Mr Dogar had been the sole shareholder, Director and Secretary.

24.  At hearing the Tribunal discussed these issues. The applicant spoke about the Naqvimam Family Trust and repeated the same arguments about Awasum Pty Ltd forming part of a trust structure together with Your Local Garage Pty Ltd and CRM Property Services Pty Ltd, and that Satzas Pty Ltd had been part of the same trust structure until sold.

25.  The applicant argues that the Naqvimam Family Trust owned all the shares in each company (Awasum Pty Ltd, Satzas Pty Ltd, Your Local Garage Pty, CRM Property Services Pty Ltd) and he had never owned any shares. He argues that therefore all of the companies were associated entities for the purposes of condition 8107(3)(a)(ii)(B). In support of this argument he provided an accountant’s letters dated 10 July 2019 and 14 February 2018 that stated Awasum Pty Ltd formed part of a trust structure together with Your Local Garage Pty Ltd and CRM Property Services Pty Ltd, and that Satzas Pty Ltd had been part of the same trust structure until approximately September 2016 when it was sold.

26.  In sum, the Tribunal considers that as the approved sponsor had been Awasum Pty Ltd, there are two issues for the applicant. The first issue is whether (after the 457 visa grant on 30 June 2015) Satzas Pty Ltd was a ‘business of the sponsor or an associated entity of the sponsor’. The second issue would then be whether his work in Satzas Pty Ltd was work in the occupation of Sales and Marketing manager (the occupation listed in the most recently approved nomination).

27.  In regard to the first issue, the Tribunal finds that Satzas Pty Ltd was a ‘business of the sponsor or an associated entity of the sponsor’ for the following reasons.

28. Regulation 1.03 defines an associated entity of a person, as an entity that is an associated entity of the person under section 50AAA of the Corporations Act 2001. Section 50AAA(1) provides that one entity (the associate) is an associated entity of another entity (the principal) if one of subsections (2) to (7) is satisfied. The Tribunal next considered whether the business arrangements of the sponsor Awasum Pty Ltd and the other companies that include Satzas Pty Ltd satisfy the requirements of s.50AAA(6). The profit and loss statements for Awasum Pty Ltd for 2016 and 2017 showed in the 2016 fy, a loan of $100,000 to Satzas Pty Ltd, and the corresponding profit and loss statement for Satzas Pty Ltd for 2016 and 2017 showed a loan from Awasum Pty Ltd as a liability. The significant loan by Awasum Pty Ltd to Satzas Pty Ltd constitutes ‘an asset that is an investment in the second entity’ for the purposes of section 50AAA(8)(a) of the Corporations Act 2001, and so is a qualifying investment. This satisfies section 50AAA(6)(a).

29. The Tribunal also accepts the applicant’s evidence that Awasum Pty Ltd (the principal) had significant influence over Satzas Pty Ltd, and the interest had been material to the principal, in light of the significant investment by Awasum Pty Ltd in Satzas Pty Ltd, and the close personal and business bonds between the married applicants. Indeed, an ASIC extract on 24 January 2018 for Awasum Pty Ltd showed that in the period after the 457 visa grant on 30 June 2015, the secondary 457 visa holder had been the sole shareholder, Director and Secretary- and an ASIC extract on 24 January 2018 for Satzas Pty Ltd showed that in the period after the 457 visa grant on 30 June 2015, and up to 6 September 2016, the applicant had been the sole shareholder, Director and Secretary of that company. This satisfies section 50AAA(6)(b) and (c).

30. The Tribunal therefore finds that section 50AAA(6) is satisfied and so for the purposes of section 50AAA(1) the associate (Satzas Pty Ltd) is an associated entity of the principal (Awasum Pty Ltd).

31. Similarly, in light of the significant loan of $65,000 by Awasum Pty Ltd (the principal) to Your Local Garage Pty Ltd, the shared lease concerning a Coburg property signed on 1 August 2016 executed by Your Local Garage Pty Ltd and Awasum Pty Ltd, and the close personal and business bonds between the married applicants, the Tribunal accepts that the other companies operated solely by the applicants- Your Local Garage Pty Ltd and CRM Property Services Pty Ltd - also satisfied section 50AAA(6), and so for the purposes of section 50AAA(1) the associates (Your Local Garage Pty Ltd and CRM Property Services Pty Ltd) are associated entities of the principal (Awasum Pty Ltd).

32.  It follows that the applicant did not breach condition 8107 (a)(ii) which required in his circumstances, that he “must work only in a position in the business of the sponsor or an associated entity of the sponsor”.

33.  In regard to the second issue, the applicant’s involvement in the following migration dealings are significant:

·     On 5 May 2016 Satzas Pty Ltd submitted a Standard Business Sponsorship agreement. In this agreement, the applicant was listed as the Director.

·     On 21 June 2016 Satzas Pty Ltd submitted an ENS Nomination for Nazish Zafar. In this nomination, the applicant signed a work reference letter dated 2 May 2016 as the Director.

·     On 6 July 2016 Satzas Pty Ltd submitted an ENS Nomination for Amarjeet Kaur. In this nomination, a "Certification Form - Paying for visa sponsorship" was submitted, signed and dated by the applicant on 6 July 2016, and this listed the applicant’s position as Director. As well, an organisational chart for the business that had been submitted showed the applicant was the company Director.

34.  At hearing he stated he had only worked for Satzas Pty Ltd as a Sales and Marketing Manager. However, these dealings show that in May, June and July 2016 he held himself out as the sole Director of Satzas Pty Ltd. His actions in those migration dealings show he was working as a managing Director of Satzas Pty Ltd and not merely undertaking the tasks of a Sales and Marketing Manager (ANZSCO 131112), and that in that period he remained the managing Director who had been organising all of the business of the company.

35.  The Tribunal does not accept he ceased to be Director on 1 July 2014 as he advised ASIC (on 6 September 2016). The Tribunal finds that after the 457 visa grant on 30 June 2015, he did not work only as a Sales and Marketing manager (ie only work in the occupation listed in the most recently approved nomination for the holder)- and so he did not comply with condition 8107(3)(a)(i).

His work for Satzas Pty Ltd in November 2017

36.  The applicant submits that in 2016 he had been appointed Director Sales and Marketing of Satzas Pty Ltd, and on 9 November 2017 he was authorised to sign documents on the Director’s behalf as the Director was overseas. The delegate’s decision[4] stated that on 9 November 2017 Satzas Pty Ltd submitted an ENS nomination for a person and in the nomination was a work reference letter dated 10 October 2017 signed by the applicant as Director.

[4] The delegate’s decision was provided to the Tribunal by the applicant

37.  The Tribunal finds that Satzas Pty Ltd had been sold at an earlier date and the ASIC extract shows the applicant had ceased to be Director and owner with effect 6 September 2016. This is supported by the accountant’s letter dated 14 February 2018 that stated Satzas Pty Ltd was sold to a new owner in approximately September 2016.

38.  In sum, the Tribunal finds that the applicant signed a document for Satzas Pty Ltd as Director on 10 October 2017 as he had been authorised to sign documents on the Director’s behalf while the Director was absent overseas. At hearing he stated just because he signed documents does not mean that he was working for the company then. However, the Tribunal finds that signing a document/s as Director of Satzas Pty Ltd because he was authorised to sign documents on the Director’s behalf while the Director was absent overseas, constitutes work.

39.  The Tribunal finds that at a time when the applicant held the 457 visa, he performed work for Satzas Pty Ltd- a company that was not a business of the sponsor or an associated entity of the sponsor- and this breached condition 8107(3)(a)(ii)(B).

His work for Your Local Garage Pty Ltd

40.  As well, information before the Tribunal shows that the applicant worked as managing Director for Your Local Garage Pty Ltd whilst he held his 457 visa. Your Local Garage Pty Ltd had been described as a mechanical repairs and service centre. An ASIC extract[5] shows the applicant was sole Director (and Secretary) appointed 26 June 2013.

[5] On 24 January 2018

41.  The Department’s Notice of Intention to Consider Cancellation (NOICC) letter dated 5 December 2018 discusses site visits on 4 and 5 December 2017. The officers found the head office of Awasum Pty Ltd located at Campbellfield closed, but spoke to two workers at another business address at Coburg North associated with Your Local Garage Pty Ltd. The officers undertook the site visits during the usual course of their duties and notes of the on-site interviews were made, and for these reasons the Tribunal accepts their accuracy. These notes show that a worker Mr Sarwar said:

·He had worked at Coburg North since it opened 6-7 months ago

·He worked for the business part-time and then the applicant offered him a permanent position and 457 visa sponsorship without an application process

·The applicant is the owner and manager of Your Local Garage Pty Ltd

·The applicant orders parts, does the purchase orders, invoices customers and pays the workers’ salaries

·The applicant normally works at Coburg North from 9am to 5pm Monday to Fridays- the majority of time. Each day before Mr Sarwar leaves, the applicant tells him the work he needs to do the next day

·Mr Sarwar is recorded to have said about the applicant: "He does everything from organising parts, purchasing, ordering, salaries everything, all the things, he is the one".

42.  A second worker Mr Hayat is recorded to have stated:

·He is a 457 visa holder sponsored by Your Local Garage Pty Ltd; he gets paid in cash

·The applicant calls to give the employees the jobs for the day and addresses of where to go to collect cars

·The applicant physically pays Mr Hayat in cash, face to face

·The applicant goes to the Coburg North workshop regularly, and to the Campbellfield office 2-3 times per week

·The applicant organises the jobs and if they don't have jobs there are the auction cars

·Every night he applicant will talk to one of the mechanics and let them know which work to perform the next day

·Car sales are done by the applicant ‘the boss’

43.  On 19 December 2018 the applicant response to the Department’s NOICC letter of 5 December 2018, and key points concerning the employees’ evidence were:

·     The business Your Local Garage came into being, and he was only ever Director Sales and Marketing and he performed sales and marketing duties. He was never an owner or owned any shares- which were owned by “Awasum/Trust”.

·     The workers interviewed by the Department only worked as mechanics and had no idea how the sales and marketing department worked or how customers were brought in.

·     Coburg office lease is “owned” by Awasum Pty Ltd and Your Local Garage Pty Ltd, and the Campbellfield office lease was “owned” by Awasum Pty Ltd.

44.  The Tribunal’s letter dated 7 November 2019 discussed the Department’s on-site interviews and the responses of the two workers and invited comments. This evidence was also discussed at hearing. The applicant argues that the workers’ responses should be disregarded as they had worked as mechanics and had little knowledge of his job duties and tasks, and they had replied based on their perception rather than facts. He pointed out that one worker had wrongly said he ordered car parts. At hearing he stated he had always worked as a Sales and Marketing manager and he had been the most senior officer there and so the workers thought, wrongly, that he ran the business.

45.  The applicant has argued that Your Local Garage Pty Ltd had been part of the Naqvimam Family Trust. However, in light of the foregoing findings, the Tribunal does not accept either that: Your Local Garage Pty Ltd had been registered, held and operated by the Naqvimam Family Trust; the applicant held shares in and operated Your Local Garage Pty Ltd on behalf of the Naqvimam Family Trust. In fact, in the foregoing discussion the Tribunal finds that Your Local Garage Pty Ltd had been an associated entity of the principal (Awasum Pty Ltd).

46.  The Tribunal has carefully considered the applicant’s evidence and submissions. However, the information obtained from the workers, Mr Sarwar and Mr Hayat, is consistent and show that the applicant worked in the business activities of Your Local Garage Pty Ltd in and about December 2017. The information shows that the applicant operated and managed all of the business of Your Local Garage Pty Ltd: he ostensibly held himself out as the owner and manager; he regularly attended at the garage; he organised the employment of staff and related visa sponsorships; he did a manager’s tasks including purchase orders and invoices; he organised the workers’ work schedules and paid their wages in cash.

47.  The status of the applicant as the owner and manager of Your Local Garage Pty Ltd is further supported by the lease agreement for the Coburg North business signed 1 August 2016 that shows the applicant executed/signed the Deed for Your Local Garage Pty Ltd as “Sole Director & Sole Company Secretary”.

48.  The site visits on 4 and 5 December 2017 and the interviews conducted show he was acting as a managing Director of the entire business of Your Local Garage Pty Ltd and not merely as a Sales and Marketing Manager (ANZSCO 131112), and that in that period he remained the sole managing Director who had been organising all of the business of the company. The Tribunal rejects his evidence that he had only worked as a Sales and Marketing Manager.

49.  In sum, the Tribunal finds that after the 457 visa grant on 30 June 2015, he did not work only as a Sales and Marketing manager (ie only work in the occupation listed in the most recently approved nomination for the holder)- and this breached condition 8107(3)(a)(i).

Conclusion

50.  The Tribunal finds that at a time when the applicant held the 457 visa, he did not work only as a Sales and Marketing manager (ie only work in the occupation listed in the most recently approved nomination for the holder)- and this breached condition 8107(3)(a)(i).

51. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(b) exists.

52. As these grounds do not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

s.116(1)(g) and r.2.43(l)(iv)

53. Also relevant to this case is the visa cancellation ground set out in s.116(1)(g): a prescribed ground for cancelling a visa applies to the holder. For the purposes of s.116(1)(g) the grounds prescribed are those set out in regulation 2.43, and include r.2.43(l)(iv):

(l)  in the case of the holder of a  Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) - that:

(iv)  the sponsor has been cancelled or barred under section 140M of the Act;

54. The Department’s file BCC2018/1333197 shows that on 20 March 2018 the Department decided, under s.140M(2) of the Migration Act, to bar the sponsor Awasum Pty Ltd for five years from making further applications as a standard business sponsor. The applicants were invited to comment on this information in the Tribunal’s s.359A letter dated 7 November 2019.

55. The Tribunal finds that there is a prescribed ground for cancelling the applicant’s 457 visa pursuant to s.116(1)(g) and r.2.43(l)(iv).

56. As this 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

57.  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’.

58.  Those circumstances include such matters as:

·     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

·     the extent of compliance with visa conditions

·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

·     past and present behaviour of the visa holder towards the department

·     whether there would be consequential cancellations under s.140

·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

·     any other relevant matters

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

59.  The purpose of the applicant’s stay in Australia was to work as a Sales and Marketing Manager (ANZSCO 131112) for Awasum Pty Ltd. In the foregoing discussion the Tribunal finds that he had also been able to work as a Sales and Marketing Manager for associated entities of Awasum Pty Ltd. However, the applicant currently works as a managing Director in associated entities of Awasum Pty Ltd namely, Your Local Garage Pty Ltd and CRM Property Services Pty Ltd, and previously as a managing Director in associated entity Satzas Pty Ltd. The previous nomination and his 457 visa had not permitted him to work in that occupation and would not have permitted him to continue to do so. In sum, the applicants’ business operations and the work of the applicant in those business operations significantly expanded beyond the scope of the applicant’s 457 visa.

60. The Tribunal notes that his Subclass 457 (Temporary Work (Skilled)) visa, had it not been cancelled on 21 December 2018, would have ceased on 30 June 2019. As well, on 20 March 2018 the Department decided under s.140M(2) to bar the sponsor Awasum Pty Ltd for five years from making further applications as a standard business sponsor. This means that regardless of the review’s outcome, the applicant cannot again be nominated for an occupation by his former sponsor until after 20 March 2023. In sum, this weighs towards cancellation.

Circumstances in which ground of cancellation arose; The extent of compliance with visa conditions

61.  The applicant did not comply with visa conditions by working for significant periods as a managing Director in associated entities of Awasum Pty Ltd namely, Satzas Pty Ltd and Your Local Garage Pty Ltd, and by doing work in November 2017 for Satzas Pty Ltd- a company that by then was not a business of the sponsor or an associated entity of the sponsor. At hearing he stated that if he made a mistake in the way he conducted his business it was an honest mistake and not deliberate. They had hired a professional to organise their business affairs.

62.  In sum, his extent of non-compliance with visa conditions is significant and ongoing. The circumstances in which the ground for cancellation arose were within his control, particularly in light of the close personal and business bonds between the married applicants.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship); Whether there would be consequential cancellations under s.140; Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation; If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

63.  The Tribunal finds that the cancellation would not lead to removal in breach of Australia’s non-refoulement obligations.

64.  There would be a consequential cancellation under s.140 as the secondary applicant’s visa would be cancelled consequentially. However, she holds her 457 visa on the basis of being a member of the applicant’s family unit. She would be able to return to Pakistan with her husband.

65.  At hearing the applicant discussed how they had half a million dollars in business assets, and he queried who would buy his businesses if they had to depart. The Tribunal accepts that there would be a significant degree of hardship (financial, psychological, emotional) caused if the applicant and his wife are required to depart Australia. They would ostensibly be unable to operate the principal business or any of the associated entities from outside of Australia, and their financial loss would potentially be high. Both applicants have been in Australia for significant periods: the applicant first arrived as a student on 30 January 2003 and has lived in Australia for over 17 years; the secondary 457 visa holder first arrived as a student on 3 May 2006 and has lived in Australia for about 14 years. Their evidence is that after their long residence they consider themselves a part of the Australian community and they would suffer psychological and emotional hardship if required to depart.

66.  Nonetheless, a Subclass 457 is in any event of limited duration related to working for a particular sponsor in a skilled occupation. It does not create an expectation of a permanent or extended life in Australia or an expectation of ongoing financial or other advantage by reason of being in Australia. Having taken all of these matters into account, the Tribunal places limited weight on any hardship that may be caused to the applicant and family members, and places limited weight against cancellation.

Past and present behaviour of the visa holder towards the department

67.  The applicants have been responsive to the Tribunal’s requests and invitations, and the delegate stated there had been no adverse information before the Department relating to the applicant’s past behaviour.

Whether there are mandatory legal consequences

68.  The applicant is currently on a Bridging E visa because of this review process. In the absence of a successful outcome, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst a continued failure to depart may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

69. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications could be made by the applicant whilst onshore. The Tribunal has taken that potential limitation into account. He would be able to apply for a Protection visa.

70.   He will also be subject to Public Interest Criterion 4013 as a result of a cancellation which means he may not be granted a temporary visa for three years from the date of a cancellation. At hearing the applicant submitted that the mandatory three year exclusion from Australia would be a big black mark against them across all the Commonwealth countries.

71.  However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program. Accordingly, the Tribunal is not satisfied there are consequences of the cancellation which mean that the visa should not be cancelled.

Any other relevant matters

72.  The Tribunal has considered and weighed up all of the relevant circumstances in this matter including the matters raised by the applicant and his representative. The Tribunal places substantial weight on the finding that the applicant had worked and performed tasks and duties well beyond those of a Sales and Marketing Manager employed by the sponsor, and had done so for a significant time while holding his Subclass 457 (Temporary Work (Skilled)) visa, and subsequently.

73.  At hearing and in submissions the applicant submits that his and his wife’s departure from Australia will lead to the closure of the businesses that they operate. A submission on 21 November 2019 listed:

·     Awasum Pty Ltd, $55,000 invested, monthly turnover about $5-6,000 since established.

·     Your Local Garage Pty Ltd, last year’s turnover about $400,000, and six employees (3 permanent residents, one 457 holder, one student, one a Student visa applicant).

·     CRM Property Services Pty Ltd, trading as Fantastic Cleaning Melbourne, last year’s turnover about $1,000,000, and 15 employees and six contractors working.

74.  Documents provided to the Tribunal by the applicant after the hearing show that in 2017: Awasum Pty Ltd had Total assets of $170,078 and Total liabilities of $565,913; and Your Local Garage Pty Ltd had Net liabilities of $70,637. A Payroll Activity (summary) for December 2019 showed 45 persons paid wages of $143,948.

75.  In sum, the Tribunal accepts that if the visa is cancelled, there will be an adverse effect on the businesses operated by the applicants and on the workers employed by the businesses.

76.  Post-hearing the applicant also provided an undated letter of support from his sister. The letter describes the financial and emotional support given her by the applicants, and describes the close relationship the applicants have with her children. At hearing the applicant submitted that whilst he holds Business visitor visas for Canada and the US, they have no right to reside in those countries. He operates a business in the UK but that is managed by his sister-in-law. He submitted there is an economic discrepancy between Pakistan and Australia and also corruption in Pakistan. The Tribunal asked where he would live in Pakistan and he stated they would have to live at his parents’ home or his brother’s home in Multan.

77.  However, balanced against these matters is that the purpose of the applicant’s continued stay in Australia was to fill a particular approved position for a particular approved sponsor.

Conclusion

78.  The Tribunal has considered this matter in light of the applicant’s own particular circumstances as in the Tribunal’s view it is required to do so, so as not to fetter the discretion to be exercised. The Tribunal has considered and weighed up all of the relevant circumstances in this case. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

80.  The Tribunal has no jurisdiction with respect to the second named applicant.

C. Packer
Member