Raval (Migration)

[2019] AATA 4139

Raval (Migration) [2019] AATA 4139 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ankur Dipakkumar Raval
Mrs Neepa Ankur Raval
Master Shiv Ankurbhai Raval

CASE NUMBER:  1837673

HOME AFFAIRS REFERENCE(S):           BCC2018/4098026 CLD2018/7034665

MEMBER:Amanda Mendes Da Costa

DATE:6 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 06 September 2019 at 10:12am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – nominated occupation – ABF sponsor audit – current directors gave evidence – duties and responsibility of a facilities manager – no jurisdiction regarding other applicants – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 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) of the Act on the basis that the first named applicant had not complied with subclause 8107(3)(a)(i) of condition 8107 attached to his subclass 457 visa. The delegate was not satisfied that the first named applicant was working only in the occupation listed in the most recently approved nomination for the first named applicant. 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 other applicants’ visas were 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 those other visas 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 them.

4. The applicants appeared before the Tribunal on 30 July 2019 to give evidence and present arguments. The Tribunal also heard evidence from the current directors of the first named  applicant’s employer, Asks Maintenance Services Pty Ltd – Mr  Maulesh Dipakkumar Patel and Mr Dharmesh Kalidas Patel.  The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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)(a)(i). 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?

8. 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(3)(a)(i) attached to the applicant’s visa. This condition requires that the first named applicant must work only in the occupation listed in the most recently approved nomination for him.

9. The standard business sponsor who nominated the first named applicant in the most recently approved nomination for the visa was Asks Maintenance Services Pty Ltd, whose nomination was approved on 18 March 2015.  The first named applicant was nominated in the occupation of Facilities Manager.

10. According to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary, a Facilities Manager ANZSCO 149913 organises, controls and co-ordinates the strategic and operational management of buildings and facilities in public and private organisations to ensure the proper and efficient operation of all physical aspects of a facility, to create and sustain safe and productive environments for occupants.

11. In their decision, the delegate notes that on 18 December 2017 Australian Border Force (ABF) officers undertook a sponsor monitoring audit and conducted a site visit to the sponsor’s principal place of business, located at 43 Clearwater Parade, Truganina, Victoria.  During the visit, ABF officers interviewed  Mr Shah, a director of the business who advised that the first named applicant’s duties for the sponsor included the following:

    ·looking after facilities, hygiene and cleaning;

    ·ensuring facilities are maintained;

    ·making reports to body corporate staff;

    ·cleaning if required;

    ·gardening and pruning if required;

    ·contacting person for building maintenance issues (7.30am/8am to 4pm Monday to Friday); and

    ·arranging new contracts and referrals.

12. Mr Shah also provided evidence to ABF officers of text messages sent to him containing photographs of maintenance issues requiring attention and messages from cleaners making claims of maintenance issues.

13. Mr Shah advised ABF officers that although the first named applicant arranged new contracts and referrals, he was responsible for dealing with body corporates and building management staff.

14. On 27 November 2018 the Department sent the first named applicant a Notice of Intention to Consider cancellation (NOICC) of his visa.

15. On 5 and 6 December 2018 the first named applicant indicated to the Department that he objected to the matters asserted by the Department in the NOICC and requested information regarding the allegations made against the first named applicant.

16. On 6 December 2018, the Department responded to the first named applicant’s request and provided information about the manner in which the first named applicant could submit information responding to the NOICC.

17. The Tribunal notes that no further information was provided to the Department by the first named applicant prior to the making of the decision under review.

18. The Tribunal was provided with handwritten notes made by the ABF officers who conducted the interview on 18 December 2017.  The information contained in these notes is substantially the same information as that referred to by the delegate in their decision. These notes record that the director interviewed confirmed that the applicant was employed by it as a Facilities Manager.  He advised that the applicant did not have a desk or computer allocated to him at the company’s office as he looked after the facilities at the buildings maintained by the company and most of his work was performed on site.  He explained that the applicant was responsible for making any reports regarding faults and organising repairs and general maintenance.  The company employed two cleaners to conduct cleaning works at the buildings it maintained.  The applicant was responsible for the supervision of these cleaners.

19. The ABF officers noted that Mr Shah could not provide them with any email correspondence showing the applicant’s responsibilities as a Facilities Manager.  However, he stated that the applicant was responsible for dealing with body corporate and building management.  The director advised that the applicant’s hours of employment were from 7.30-8am until 4pm each weekday.  In addition, he responded to telephone enquiries and requests for assistance on weekends.

20. The first named applicant told the Tribunal that he had arrived in Australia in July 2009 to study and had since obtained a diploma and advanced diploma in Business and Marketing.  He answered an advertisement for a part-time position with Asks Maintenance Services Pty Ltd and after a three month trial period, was engaged as a Facilities Manager with the company on a full-time basis.  He had remained in that employment for the past 10 years.

21. The Tribunal questioned the first named applicant about his duties and responsibilities as Facilities Manager.  He described his role as property management including the selection, engagement and supervision of contractors at the various properties managed by the company.  The applicant said that he is responsible for the engagement of contractors to perform both routine maintenance and repair faults and breakdown in equipment.  He keeps the daily records of such work and any requests made by body corporate authorities or building owners for assistance.  The Tribunal notes that it was provided with several volumes of records setting out such work. 

22. The first named applicant further explained that he regularly checks fire protection equipment and alarms at the premises he manages on a regular basis and arranges for any necessary inspections of such equipment and alarms.  He monitors the waste management services at each premises to ensure bins are deposited outside the properties for collection and that rubbish is not left on the premises.  The applicant provided the Tribunal with photographs showing numerous instances of hard rubbish which had been abandoned at various premises and which required him to make arrangements for collection.

23. The first named applicant said that for some of the buildings, he had regular contact with body corporate committees regarding the issues of maintenance and repairs.  Although he was not responsible for cleaning, gardening or ground maintenance, if he observed a maintenance issues which required immediate attention, he would respond rather than waiting for other maintenance staff to arrive.  Most of his work is performed on site and if he is required to contact a contractor or client he does this by telephone or email from the premises or his vehicle.

24. The Tribunal questioned the first named applicant about the information in the delegate’s decision about the interview with Mr Shah on 18 December 2017.  The first named applicant told the Tribunal that his duties had not changed since he commenced in the role of Facilities Manager with his employer and that throughout his employment he had been responsible for organising, controlling and co-ordinating the management of buildings and facilities maintained by the company.

25. The current directors of the company (Mr Maulesh Patel and Mr Sharmesh Patel) told the Tribunal that when they purchased the business in 2018, the first named applicant was performing the role of a Facilities Manager.  His duties involved the management of approximately 71 properties – engaging contractors, supervising maintenance, repairs and cleaning and ensuring that any safety requirements were met.  Messrs Patel told the Tribunal that the first named applicant was not required to undertake cleaning or maintenance tasks on a regular basis and only did this if there was an immediate need.  They described the first named applicant as a hard working diligent and honest employee.

26. The Tribunal has some concerns about the inability of the then director of the applicant’s employer to provide any email correspondence regarding the applicant’s duties with the company.  However, it notes that the director did provide information about the applicant’s duties and responsibilities and work hours.  The Tribunal further notes that the directorship of the company has changed and Messrs Patel, the current directors of the company gave evidence at the hearing about the applicant’s current role as Facilities Manager.  On balance, the Tribunal is satisfied that the evidence before it show that the applicant’s duties and responsibilities are commensurate with those of the duties of a Facilities Manager as set out in the ANZSCO dictionary for that position.

27. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.1161)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

29. The Tribunal has no jurisdiction with respect to the other applicants.

    Amanda Mendes Da Costa
    Member