Parker (Migration)

[2017] AATA 2765

Parker (Migration) [2017] AATA 2765 (22 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oliver Thomas Parker

CASE NUMBER:  1609246

DIBP REFERENCE(S):  BCC2015/3787711

MEMBERS:Jan Redfern (Presiding)

Hugh Sanderson

DATE:22 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 186 - Employer Nomination Scheme visa.

Statement made on 22 December 2017 at 1:00 pm

CATCHWORDS
Migration – Subclass 186 (Employer Nomination Scheme) visa – nominated occupation as an Onsite Project Coordinator – cancellation under s.109 – cancellation of visa following audit and sponsorship bar of nominating employer – whether incorrect information or bogus document provided – consideration of ANZCO definition – relevance of VETASSESS criteria – finding that information provided not incorrect and documents not bogus – non-compliance not established – power to cancel visa does not arise – cancellation set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109, 140M, 362A

CASES
Murphy Pipe & Civil Constructions Pty Ltd (Migration)[2017] AATA 960
Zhao v MIMA [2000] FCA 1235
Briginshaw v Briginshaw (1938) 60 CLR 336
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

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 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2.       The delegate cancelled the visa on the basis that the applicant had provided incorrect information and bogus documents in support of his visa application. 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.       We have concluded that the ground for cancellation has not been made out and the decision to cancel the applicant’s visa should therefore be set aside. Our reasons follow.

BACKGROUND

4.       The applicant is a citizen of Ireland and is currently 33 years old. He first entered Australia in December 2008 holding a Working Holiday visa. He was granted a subclass 457 Temporary Work visa in March 2009 and on 7 March 2013 he was granted a subclass 186 Employer Nomination Scheme visa. He was sponsored in that application by Murphy Pipe and Civil Constructions Pty Ltd (Murphy Pipe and Civil). The position he was nominated for was On-site Project Coordinator, classified as a Program or Project Administrator in ANZSCO 511112.

5.       A letter was provided by Murphy Pipe and Civil in support of that application, stating that the applicant had worked in the position as On-Site Project Coordinator since 20 March 2009. The applicant provided details of his work history claiming that he was working as the On-Site Project Coordinator for Murphy Pipe and Civil from March 2009 until the date of the application. He stated that he would ‘generally manage all administrative operations; represent the company on-site to assist the head contractor in the planning and organising of major projects; liaise with civil and structural engineers and provide feedback to consultants regarding progressive construction of projects’.

6.       Murphy Pipe and Civil provided a letter attesting to the work the applicant had done for them in accordance with the nominated position of On-Site Project Administrator. It was stated that the applicant’s gross salary package was $170,000.

7.       It was on the basis of the information provided by the applicant and Murphy Pipe and Civil that the applicant was granted his subclass 186 Employer Nomination Scheme visa.

8. The Department of Immigration and Border Protection (the Department) conducted an audit of Murphy Pipe and Civil, which commenced in August 2014. As a result of this audit, a delegate of the Minister made a decision under s.140M of the Act to bar Murphy Pipe and Civil from making future applications for approval as a standard business sponsor. Murphy Pipe and Civil sought review of this decision. The Tribunal upheld the bar, but varied the period. This decision has been published by the Tribunal (Murphy Pipe & Civil Constructions Pty Ltd (Migration)[2017] AATA 960). Following this decision, the Department reviewed the applications of a number of employees who had been sponsored by Murphy Pipe and Civil (and its predecessor), including the applicant. As a result of this audit, the Department considered the applicant had provided false and misleading information and bogus documents to the Department in support of his application for a subclass 186 Employer Nomination Scheme visa. A delegate of the Minister wrote to the applicant on 15 March 2016 with a Notification of Intention to Consider Cancellation under s.109 of the Act (NOICC).

9.       The delegate noted the following particulars for the grounds of cancellation:

(1)The applicant provided information in support of his application for the permanent subclass 186 visa to the effect that he had worked as an Onsite Project Co-ordinator for Murphy Pipe and Civil since March 2009, undertaking the range of duties referred to above. Murphy Pipe and Civil also provided a letter dated 12 May 2012 setting out the applicant’s duties, which it was said corresponded with the tasks of the nominated position of Onsite Project Administrator ANZSCO 511112.

(2)There were documents obtained by the Department from Murphy Pipe and Civil which were inconsistent with this. Those documents included a company spread sheet entitled “Training Matrix (Main) Rev 11” listing the applicant’s position as ‘Labourer’, records and documents showing the applicant possessed qualifications and tickets that were not related to his nominated occupation or for any occupation that was able to be approved for a subclass 457 visa, a company document from 2010 listed the applicant’s role as ‘Labourer’ and his employment classification as CW3, an undated one page handwritten resume listed the applicant’s current position as ‘Leading Hand’ and outlining the work history involving primarily ‘dozing’ work on pipelines and ‘polly butt fusion’ welding on water mains and Sino Iron Crew timesheets from May 2011 listing the applicant’s work as pipe cleaning work. The delegate also relied on correspondence from Murphy Pipe and Civil, being a letter to the applicant outlining a transfer of employment stating his position would be classified as a CW3, a letter of offer dated 10 February 2012, signed by the applicant on 15 February 2012 for work on the Cavel Ridge Pipeline project listing the applicant’s employment classification as ‘Group D+ Leading Hand plus Rigger/Dog Allowance’ and a letter of offer dated 5 April 2012 for the applicant outlining his employment at Chinchilla listed his employment classification as CW3. There were also documents relating to Enterprise Bargaining Agreements for various projects referring to various trades and occupations but not including any roles such as Program or Project Administrator or Coordinator. Given the applicant was being paid under an EBA based on rates for occupations other than Program or Project Coordinator, this was said to evidence that he was not in fact performing those duties.

(3)Based on this information, the delegate noted that there was reason to believe the applicant never worked in the occupation of Project or Program Coordinator and never undertook work outlined in his nominated application or employed as claimed in his subclass 457 visa. The delegate considered that the applicant had been employed as ‘Mobile Plant Operator’- ANZSCO Code: Minor Group 721; ‘Labourer/Trades Assistant’- ANZSCO Code: Unit Group 8219; ‘Dogman’- ANZSCO Code: 821911, or similar. The delegate noted that even if the applicant had worked as a Transport Supervisor the duties of that role did not correlate with those outlined in the applicant’s nomination.

(4)This information indicated the applicant had provided incorrect information and bogus documents and he was invited to comment on or respond to this information.

10.    The applicant’s representatives provided a response to the NIOCC and provided further documents in support of their submissions. In summary, the applicant denied he had provided incorrect information and submitted as follows:

(1)The applicant had always provided correct information to the Department and had been employed as an Onsite Project Coordinator on various projects;

(2)When working in the transport sector his duties were focused on transport site coordination;

(3)As he had not been provided copies of the documents the delegate was referring to, he could not comment on their authenticity;

(4)As a Coordinator, it was important the applicant had a thorough knowledge of all aspects of construction which necessitated him having various tickets and knowledge of work to be carried out under his supervision;

(5)The applicant did not have any control over the manner in which the employer described his duties or classification;

(6)The applicant had been incorrectly paid under the EBA but the applicant had not taken any action about this at the time; and

(7)Murphy Pipe and Civil were extremely disorganised which explains the inconsistent information contained in their records.

11.In respect of the issue as to why the applicant’s visa should not be cancelled, the applicant submitted that his employment with Murphy Pipe and Civil ended in October 2015 due to redundancy and has since found alternative employment in a high-level managerial role.  He had, since 2012, been in a relationship with Marita Parker, who is an Australian citizen, and they are now married. The applicant and Ms Parker had been having IVF treatment and she was pregnant and due to give birth in December 2016. To cancel the applicant’s visa would cause Ms Parker further distress and harm. She would not be able to live overseas as she does not have work rights and looks after her two elderly parents. Further, the applicant owns various properties in Australia with significant mortgages. He had applied for Australian citizenship in February 2015 and seeks to have his future with his wife in Australia.

12.    The delegate who considered the application found the applicant had provided incorrect answers and a bogus document. The delegate referred to the definition of Project Co-ordinator by VETASSESS and relied on information obtained during the monitoring process of Murphy Pipe and Civil and from the applicant to conclude that the applicant was not employed as an Onsite Project Coordinator for the duration of his 457 Visa (at [33]). In particular the delegate noted:

(1)The applicant had provided qualifications in line with a trades assistant and labourer and not provided any relevant qualifications which would indicate that he could undertake the role of an On-site Project Coordinator;

(2)The payslips provided did not indicate that he was employed by Murphy Pipe and Civil as an Onsite Project Coordinator;

(3)The payslips provided which did indicate he worked as a ‘Plant Ops and Yard Manager’ which could be considered is consistent with On-site Project Coordinator were for periods after the grant of his Employer Nomination Scheme visa;

(4)By claiming that he was involved in overseeing 10 or more labourers from May 2009 to January 2012 indicated he was part of regular operations and not in an administrative role;

(5)The claim that from April to April 2014 his role was more transport related does not align with the ANZCO code for an On-Site Project Coordinator; and

(6)The applicant’s incoming and outgoing passenger cards consistently described his occupation as ‘labourer’ or ‘pipe layer’.

13.    After taking into consideration the submissions why the visa should not be cancelled, the delegate concluded that the visa should be cancelled, finding that the reasons to cancel the visa outweighed the reasons not to cancel.

INFORMATION PROVIDED TO THE TRIBUNAL AND THE TRIBUNAL HEARING

14.The applicant provided further information to the Tribunal including a statutory declaration of the applicant, a copy of the applicant’s offer of employment with Murphy Pipe and Civil dated 5 April 2014 and submissions from the applicant’s agent including a response to the various documents relied upon by the Department.

15.In the submissions the following was claimed:

(1)The description of the applicant as a ‘supervisor’ was a shortened title for the designated ANZSCO title of “Project or Program Administrator or Coordinator;

(2)The documents from Murphy Pipe and Civil were not prepared by the applicant and he has no knowledge of them;

(3)Documents from Murphy Pipe and Civil are not dated and as such cannot be tied in with the relevant period;

(4)The applicant did not work on the Cavil Ridge Pipeline and that document is not reliable;

(5)The applicant’s resume was prepared by him, however, he cannot recall when or why it was prepared and is inaccurate as it only covers one year of work experience in Ireland when he had worked there a period of four years;

(6)The applicant did not place the importance he should have on his incoming passenger cards and wrote that he was a labourer as this was simpler than writing on-site project coordinator;

(7)Various documents were obtained during the Department’s audit of Murphy Pipe and Civil which indicated the applicant was working as a supervisor; and

(8)It was important for the applicant as a Project Coordinator to understand the work as he was supervising which required him to obtain the various tickets.

16. The Tribunal was provided with the Department file which did not include all material relied on in the audit. The Tribunal requested this information, which was provided electronically, and these documents were provided to the applicant and his representative under s.362A of the Act.

17.    The Tribunal conducted a telephone directions hearing on 23 June 2017, as a result of which, the applicant provided further evidence and submissions in support of the claims.

18.    The applicant appeared before the Tribunal on 17 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Marita Parker, who is the applicant's wife.  The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

19.    The applicant provided details of his work history. He described the work and responsibilities he had in each position. He said that he joined JP & RM Contracts Ltd when he left school. It was a small construction company in Ireland and he was given responsibility to supervise a team on-site. This included dealing directly with the Council for any rectification works, dealing with landowners who would be affected by the works and generally supervising the work done by the team. He was on a higher wage than other people in his team and was given greater responsibilities.

20.    The applicant said that when he started work for Murphy Pipe and Civil (then known as Pipe and Civil Construction) he was in charge of a ‘crossings crew’ on the Sugarloaf Project which was responsible for the pipeline construction crossing creeks and rivers. He was responsible for a crew of ten to twelve people who included welders, spotters, traffic controllers and labourers. He was required to ensure he had the necessary skilled people on his crew and was paid more than the other people on the crew, apart from the welders who were considered to be specialised and were on a high salary. He was required to make sure the crew met the plans provided to him. If there were specific problems, such as environmental issues, he would be required to consult with the appropriate council officers, engineers and the Project manager. He conducted team meetings and consultations. He prepared and submitted time sheets and recorded the work of any contractors on site and signed off the invoice book. Before work would commence, he met with the Project Manager to discuss the work required and the time it was likely to take to complete the specific project. The applicant worked in this role from May 2009 until March 2010.

21.    After the Sugarloaf project the applicant said that he worked on the Toowong Project in Queensland for about two months. He supervised a crew of between eight to twelve people. He reported each day to the Project Manager in the head office.

22.    After this project, the applicant worked on the Sino Iron Ore Project in Western Australia for about two years. He was in charge of a crew of about 15 people. He reported to the Project Manager and consulted with the engineer testing the pipes and the supervisors of the other crews working on the project to coordinate their work. This project finished in January 2012.

23.    The applicant then returned to Brisbane and undertook a number of training courses. He said that he was required to undertake training and obtain tickets for various trades as he was required to understand the nature of the work of the people that he was supervising.

24.    From April 2012 until April 2014, the applicant was working on the Chinchilla Project in Queensland as the Transport Supervisor. He was based in the project yard office coordinating the movement of the crews, equipment and supplies on the project. He reported to the Superintendent. He organised contracts with contractors, provided a daily report to the Superintendent who he consulted with regularly during the day, and consulted with the plant manager and head mechanic. It was while he had this role that he applied for the visa. He continued in this role until 2014. He was then employed as a Logistics Officer, coordinating machines for projects in Western Australia, Victoria and Queensland. He was based in the Brisbane office. The applicant was terminated from his job with Murphy Pipe and Civil in October 2015 when he was made redundant due to a downturn in work.

25.    The applicant provided his work history after leaving Murphy Pipe and Civil and other details as to his work history. He provided other details of his current situation and the circumstances of the preparation of the visa application. The applicant’s wife also provided evidence in support of the application. In summary, the applicant has been living and working in Australia since about 2009 and he is married to an Australian citizen. They have a child and another on the way and he owns two apartments, which are currently rented out. Since leaving Murphy Pipe and Civil the applicant has been undertaking specialised roles in the field of Yard Manager and Logistics.

26.    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

27.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.

28.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.

29.While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in the administrative decision-making, in cases where the existence of certain facts grounds the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision-maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist (refer Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32]).

30.While the Tribunal is not bound by the rules of evidence and the decision-maker is not bound to follow legal principles such as those set out in Briginshaw v Briginshaw[1], in deciding whether the ground for cancellation is made out, it is appropriate to have regard to the nature of the allegations and the gravity of the consequences.[2] Relevant to the facts of this case, the cancellation of a permanent visa, where the visa holder has been residing in Australia for years, has serious consequences and, in our view, any factual findings should be based on logical and probative material and not speculative information or inexact proofs.

[1] (1938) 60 CLR 336. In that case, Dixon J held at 362 that in civil matters, ‘the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.

[2] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]

31.The questions for determination are therefore:

(1) Was the delegate entitled to issue the notice under s.107, namely are we satisfied that the delegate reached the necessary state of mind to engage s.107?

(2) If the answer to (1) is yes, was the notice valid?

(3) If the notice was valid and having regard to any response to the notice, was there non-compliance by the visa holder in the way described in the notice?

(4) If the answer to (3) is yes, how should the discretion to cancel be exercised, having regard to any response to the notice, the prescribed matters and any other relevant considerations?

32.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. 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?

33.The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 by providing incorrect answers in the visa application and s.103 by providing bogus documents in support of the application.

34.The allegation raised by the Department in the s.107 notice was that the applicant had provided false information when he claimed in his application for the visa that he had been working in the position of ‘Onsite Project Coordinator’ since 2009. It was also claimed that a letter of support from Murphy Pipe and Civil dated 10 May 2012 was a bogus document as it claimed that the applicant was employed as an ‘Onsite Project Coordinator’ since March 2009 when he was not. In this letter, Murphy Pipe and Civil provided a list of the main tasks that it was said had been undertaken by the applicant in the period. The letter relevantly stated:

We believe the following main tasks and duties correspond with the tasks as per the nominated position of Onsite Project Administrator ANZCO 511112:

•    Represent the company on site to assist the head contractor in the planning and organizing of civil major projects;

•    Liaise with civil and structural engineers and provide feedback to consultants regarding progressive construction projects;

•    Arrange supplies of construction materials (concrete pipe works and other conduits and materials) on site as required;

•    Generally manage all administrative operations;

•    Liaise with clients, employees and contractors to answer questions, disseminate or explain information, take orders and address complaints;

•    Compute, record, and proofread data and other information, such as records or reports;

•    Complete work schedules, manage calendars and arrange meetings;

•    Monitor and direct the work of lesser experienced employees;

•    Provides information to head contractor as needed;

•    Co-ordinates excavations on site to ensure compliance plans, specifications and regulations and to ensure proper techniques and materials are used according to contract specifications;

•    Maintain records of construction progress and departures from specifications for purposes of variations encountered during construction;

•    Co-ordinate the work of excavators (labourers) onsite.

35.The applicant denied that he provided incorrect information or bogus documents and says that that the work undertaken by him over the period was consistent with the job description for an Onsite Project Coordinator and with the work described in the letter from Murphy Pipe and Civil dated 10 May 2012.

36.In the decision record, the delegate draws heavily on the interpretation of Project Coordinator made by VETASSESS, which in turn refers to the description of Project Coordinator set out in the Australian and New Zealand Standard of Classification Occupations (ANZSCO). VETASSESS is a vocational education and training assessment provider. If the Department requires an applicant to have an assessment or if an applicant choses 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.  

37.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 ANZCSO, states has given the following guidance in relation to the interpretation of ANZSCO occupation definitions[3]:

[3] 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.

1. Since 2006 the various occupation lists used by the Department for the purposes of approving skilled visas have been derived from ANZSCO.

2. 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 Coordinator with Murphy Pipe and Civil from March 2009.  It is unclear why the letter from Murphy Pipe and Civil outlining the applicant’s duties from 2009 was said to be false and misleading but the delegate notes at [30] that the duties referred to by the applicant in his statutory declaration for the period 2012 to 2014 ‘did not align with the duties outlined in the ANZSCO code of an Onsite Project Coordinator’. Critical to the delegate’s conclusions was the finding that the applicant was not employed as an Onsite Project Coordinator during the period of his subclass 457 visa since 2009.

3. To understand these findings it is relevant to consider the ANZSCO description of the occupation of Project Administrator/Coordinator. The position of a Project or Program Coordinator 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

   41.The position of Program and Project Administrator or Coordinator in ANZSCO is a general description that covers a broad and diverse range of occupations and industries and does not restrict the role to undertaking office or purely administrative work.

   42.The skills assessment formula used by VETASSESS does not form part of the position description in ANZSCO nor was it part of the application. The applicant was not required to undertake a skills assessment and he stated in his application that he had not sat for a skills assessment from the relevant assessing authority. The applicant clearly states in his application that his work is ‘onsite’ and not office-based. The basis of the application was that the applicant had the necessary skills based on his work history. There is no dispute that the applicant never made the claim that he met the VETASSESS criteria. Accordingly, the use of the definition through which VETASSESS would conduct a skills assessment for the position is irrelevant when considering whether the applicant provided incorrect information or a bogus document in his application.

   43.The Tribunal has taken into account the information obtained by the Department when conducting an audit on the applicant’s employer, Murphy Pipe and Civil. The record-keeping within Murphy Pipe and Civil may best be described as chaotic[4]. While some of the records maintained by Murphy Pipe and Civil do not support a finding that the applicant was employed as a Project Coordinator, other records show him as a supervisor and support a finding that he was employed in that position. These records are inconsistent and inconclusive. We do not consider them to be reliable and therefore give them a little weight.

   [4] Refer Murphy Pipe & Civil Constructions Pty Ltd (Migration)[2017] AATA 960

   44.The delegate relied on the fact that the incoming and outgoing passenger cards of the applicant did not state his employment as being a project administrator or coordinator but described himself as either a ‘labourer’ or ‘pipe layer’. The Tribunal places little weight on this when considering whether the applicant provided incorrect information in his application. As the role of Project Coordinator could be transferred to a number of different industries it is not unexpected that the applicant in completing these forms would not provide a detailed description for his employment on these passenger cards.

   45.The Tribunal has had the advantage of hearing oral evidence from the applicant. He presented as a genuine and truthful witness before the Tribunal. He gave credible evidence to the Tribunal as to his work history, both prior to the application and since he was granted the visa. He provided details of his specific work and responsibilities throughout his employment with Murphy Pipe and Civil at the time of and prior to his visa application.

   46.The applicant undertook various training courses and obtained various tickets for work not directly associated with the administrative role he had. The Tribunal accepts the explanation that as the applicant was required to supervise labourers using complex machinery and working in hostile environments it would be an expectation for him to also obtain the necessary training and authority to use the equipment. This does not mean that he was therefore using that equipment in the ordinary course of his employment, but would be able to have the authority to supervise workers who did use that equipment.

   47.The applicant provided credible evidence as to his role while working with Murphy Pipe and Civil. His evidence was tested by the Tribunal and the applicant was able to provide a detailed account of his duties and responsibilities. We give this evidence considerable weight. The Tribunal finds that the applicant was responsible for supervising various crews on site. This included having responsibility for varying the work undertaken on the project when required, responding to and dealing with problems associated with the contract and advising the project manager of any issues associated with his crew. He was regularly involved in working with engineering professionals and clients for whom Murphy Pipe and Civil were conducting the work. The applicant was required to manage timesheets, reports and other paperwork associated with his crew and their work. These duties are consistent with the broad description of a Project Coordinator contained in and with the duties described by Murphy Pipe and Civil in their letter of 10 May 2012.

   48.In the period 2012 to 2014, the applicant was working as a Transport Supervisor. The delegate found that this did not accord with working in the role of a Project Coordinator. We disagree. As already noted, the role of a Project Coordinator is a broad general description. It is not confined to a particular industry and can cover a range of roles, regardless of the title. It is clear from the applicant’s evidence about his role on the Chinchilla project that he was coordinating the project from a central location.

   49.Based on the evidence, the Tribunal finds that the employment of the applicant with Murphy Pipe and Civil in the relevant period was consistent with the position of a Project Coordinator as described in ANZSCO. This position was clearly described as an onsite role in the application.

   50.Accordingly, the Tribunal finds that the applicant did not provide incorrect information in respect of his visa application. The Tribunal also finds that the letter provided by Murphy Pipe and Civil accurately reflects the work undertaken by the applicant from March 2009 and is not a bogus document.

   51.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.

   52.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

   53.The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

   Jan Redfern
   Deputy President

   
   

   Hugh Sanderson
   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.

   101Visa 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.

   103Bogus 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).

   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.