Sheraz (Migration)

[2020] AATA 1735

Sheraz (Migration) [2020] AATA 1735 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Ahmed Sheraz
Mrs Rubina
Mr Huzaifah Sheraz
Mr Ayyan Sheraz
Miss Aleena Sheraz

CASE NUMBER:  1930927

HOME AFFAIRS REFERENCE(S):          BCC2018/4149226

MEMBER:John Cipolla

DATE:7 May 2020

PLACE OF DECISION:  Sydney

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 07 May 2020 at 4:06pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – work only in occupation specified in most recently approved nomination – information about applicant’s duties provided to department by part-time employee – information provided to tribunal by owner/manager – applicant’s duties compared to ANZSCO listing – assisting with other tasks on day of department’s phone call – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 348

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

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 30 October 2019 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 applicant was granted a Subclass UC 457 Temporary Work (Skilled) visa on 15 November 2016. On 30 October 2019 a delegate made the decision to cancel the visa under s116(1)(b) of the Migration Act on the basis that the applicant had not complied with the conditions of their visa. The delegate deemed that the applicant had not adhered to paragraph 3(a)(i) of condition 8107 attached to the visa, namely that they only work in the occupation specified in the most recently approved nomination relevant to the applicant.

3. On 07 October 2019 the delegate sent a NOICC outlining the particulars which may have formed the grounds for cancellation. In this letter it was noted that the most recently approved nomination for the visa was for Jayne Mayne Pty Ltd who had applied for permission for the applicant to work for them in the capacity of a Management Accountant (ANZSCO 221112). On 19 September 2019 the sponsoring business was contacted and the person who answered the phone call advised the delegate from the Department that the applicant was currently out “delivering catalogues” and mentioned in an email to the delegate later that day that the applicant was performing “deliveries, sales, general office and stock” duties as a part of their job. These identified roles did not accord with those specified by the sponsor in the nomination application and did not comply with the duties specified by ANZSCO as constituting this profession. The applicant was invited comment on this potentially adverse information.

4. On 09 October 2020 the applicant responded to the concerns raised by the delegate. The applicant indicated that what the delegate had identified a ‘deliveries’ component of the job. The applicant advised that his role required the interpretation and analysis of financial information, and that he accounted for any breakages on deliveries and performed a cost benefit analysis before letting the goods be placed on floor for sales. What the delegate termed ‘sales’ duties, the applicant listed under financial planning and risk management,  with the understanding that training staff in sales was a component of his financial planning strategy and that in a sales position he undertook corrective measures to ensure that no stock was stolen from the store. He also advised that under ‘general office duties’ the applicant compiled financial reports and looked after accounts so meeting the corresponding job description for Management Accountant as identified by ANZSCO.

5. On 30 October 2019 the delegate cancelled the visa under s116 of the Act. In doing so they assessed whether the grounds for cancellation were made out, and once established that they had been, whether when weighed against the various discretionary factors the circumstances of the case lent themselves to cancellation of the visa. When looking at the purpose of the applicant’s travel to and stay in Australia the delegate noted that the applicant had been granted a Temporary Work (Skilled) visa in the position of Management Accountant, that he had not undertaken a significant majority of the tasks relevant to the nominated application and therefore attributed significant weight upon this consideration in favour of cancelling the visa. Concerning the applicant’s extent of compliance with visa conditions the delegate noted that they failed to work in the nominated application as required by condition 8107(3)(a)(i) and therefore attributed significant weight to this consideration in favour of cancelling the visa. Regarding the degree of hardship that may be caused by cancellation of the visa, the delegate noted several dependents of the applicant, however noted that they had been offshore since 2017 and therefore only gave this factor a little weight against cancellation. When looking at the circumstances in which the grounds for cancellation arose the delegate noted the fact that the applicant was not working in his nominated profession, and despite the fact that little information had been provided concerning why this was the case the delegate deemed that the content of the duties being performed or the place of employment were variables within the applicant’s control and so gave some weight in favour of cancellation of the visa. Thereafter, the delegate identified the four dependent applicants who would be cancelled under s140, the potential ramifications of section 189/190 and section 48 owing to cancellation and the UN’s convention on the Rights of the Child attributing each some weight against cancellation.

6. The Tribunal received a submission from the sponsoring employer Mr Nik Poulos dated 8 October 2019 outlining in detail the applicant’s duties in the nominated position of Management Accountant.

7. A further submission from Mr Poulos was provided to the Tribunal dated 2 March 2020. In it Mr Poulos notes that the applicant’s position in the company as Management Accountant involved him undertaking the following tasks:

8. Mr Poulos in this letter outlined his dismay that the delegate who contacted the business failed to speak to the correct person to enable information to be given about the applicant’s role in the business.  Mr Poulos noted that when someone contacted any business about a reference check or for some other reason, they should either speak to the human resources manager or the owner of the business about an employees job, remuneration checks or any reference checks.  Mr Poulos advised that the Departmental delegate called the business and “simply started talking with my part time staff who have got very basic knowledge about the proceedings of the business and who is not even involved in business operations.”

9. The Tribunal received a letter dated 5 March 2020 from Mr Steve Goodwin a part time employee of the business who had fielded questions from the delegate pertaining to the duties of the applicant and provided a follow up e-mail. Mr Goodwin advised that he was unsure of the duties of the applicant and that the questions were best directed to the owner of the business Mr Poulos who at the time of the call was absent due to ill health. 

10. The Tribunal conducted a review hearing on 4 May 2020 via telephone conferencing facilities. The Tribunal took evidence from the applicant and from his employer Mr Nik Poulos.  The applicant’s representative attended the Tribunal hearing.

11. At the outset of the review hearing the Tribunal explained the respective issues and review and noted that it had regard to the information contained in the departmental file, evidence that had been provided at review and would be having regard to the evidence of the applicant and his employer provided at the review hearing.

12. The applicant gave his name and date of birth. The applicant was asked about his study history in Pakistan. The applicant advised that he completed a Bachelor of Commerce majoring in accounting and that he had worked as an accountant in Pakistan for 14 years.

13. The Tribunal asked the applicant about his immigration history to Australia. The applicant advised that he travelled to Australia in July 2012 as the holder of a student visa. The applicant advised that he held the visa for two years until September 2014 and over this time he completed a Masters of Accounting at Kaplan Business School in Sydney.

14. The applicant advised that he then obtained a Subclass 485 Skilled visa which he held for two years until September 2016. The Tribunal asked the applicant about his post study work history. The applicant stated that he worked in a pizza shop initially before obtaining a position in July 2015 as a Management Accountant a position he was sponsored to work in as a 457 visa holder by Nagajjar Pty Ltd.  The applicant advised that the sponsoring business suffered a downturn in business operations and as a consequence were not able to continue to employ the applicant. The applicant found himself another sponsoring employer Jayne Mayne Pty Ltd his current sponsor to work in the business in the role of Management Accountant.

15. The Tribunal asked the applicant to describe his role in the business. The applicant advised that he was involved in analysing income and expenses. That he operated and oversaw financial systems within the business. That he was involved in cost benefit analysis for the business. The applicant stated that he uses a software program in the role called MYOB.

16. The Tribunal asked the applicant whether the business had been affected by COVID 19 and the applicant stated that office furniture sales were up as people were being forced to work from home. He advised that despite the pandemic the business was still open for trading and employees managed their own safety through social distancing.

17. The applicant advised that he prepared all of the books for the tax agent engaged by the business who provided all relevant reporting to the tax office based on the information provided by the applicant.

18. The Tribunal asked the applicant about the circumstances that led to the cancellation of his visa for non-compliance with condition 8107. The applicant stated that the business received a random phone call from the Department. He advised that an employee of the business name to Steve and said the phone call. He advised that Steve was a casual employee of the business working in the service about two days a week. The applicant stated that at the time that the business was contacted he was assisting the owner of the business Nik with promotional activities for the business.

19. The Tribunal asked the applicant whether he was the subject of a contract of employment. He confirmed that he did have a contract of employment with an annual salary of $62,000. He advised that the contract of employment spelt out the terms and conditions of his employment and the duties of the position. The applicant stated that on a day-to-day basis he provides budget reports for the business, collates relevant financial information pertaining to tax returns and lodgement of business activity statements and provides an analysis of financial information. The Tribunal asked the applicant how long the subclass 457 visa had to run prior to its cancellation and the applicant advised until 13 November 2020.

20. The Tribunal took evidence from Nik Poulos the manager and owner of the business. The witness advised that his business was a retail furniture and bedding shop located in Erina in New South Wales. He advised that he had owned the business for 20 years which was a small family owned and run business. The Tribunal asked the witness whether the business had been impacted upon by COVID 19. The witness advised that they had done well in sale of office furniture such as desks and chairs due to the fact that people were required to work from home. The witness stated that the business had an older clientele and that the business was strategically located near a large Harvey Norman retail outlet which fed into the business.

21. The Tribunal asked witness what the applicant was employed to do. He advised that he is involved in financial analysis on behalf of the business. That he provides all of the figures to the tax agent for the purposes of ATO reporting. He described the applicant as being an asset to the business. The witness advised that on the day that the business received a random phone call from the Department that the departmental delegate spoke with a part-time employee of the business who is not able to provide the delegate with a comprehensive picture of the applicant’s duties and responsibilities in his role.

22. The Tribunal noted that evidence had been provided addressing the relevant discretionary considerations as to whether or not the visa should be cancelled. The Tribunal invited the applicant to provide direct evidence about what hardship would because to him or his family if his visa remain cancelled. The applicant stated that he would lose his income. He advised that he supports his family back in Pakistan. He advised that his family had visited Australia but dominantly lived in Pakistan where they had family support and where the applicant’s children’s schooling was being conducted. The hearing concluded.

23. 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.

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

25. 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

26. 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(b). 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?

27. 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 visa. This condition requires the applicant only work in the occupation specified in the most recently approved nomination.

28. The cancellation of an applicant’s visa has a potentially profound impact on the Australian business who has gone to the trouble and expense of nominating an overseas applicant to work in their business due to a skills shortage in a particular occupational group.

29. In this case a delegate of the Department made a random call to the business and spoke with a part time employee of the business Mr Goodwin who was not cognisant of the applicant’s role and duties within the business.  Mr Goodwin advised that the applicant was not available to speak to because he was assisting in delivering catalogues at the time of the phone call.  Mr Goodwin was then asked to provide responses to further questions in an e-mail.

30. Mr Poulos has given evidence that if the Department is wishing to seek information from a nominating employer about a visa holder’s role in a business that any phone call needs to be directed to the proper person. In a larger organisation this may mean the human resources manager and in (as in this case) a smaller family run business, the business owner.  This clearly did not happen, and the result was the cancellation of the applicant’s visa on unsafe evidence provided by someone without either the knowledge or authority to provide it to the Department.

31. The Tribunal has had regard to the attributes for the nominated occupation of Management Accountant found in the ANZSCO.  The Tribunal has taken evidence at the review hearing from the applicant and the owner of the business who gave their evidence in an honest and forthright manner. 

32. The Tribunal has also been furnished with additional evidence pre-hearing from Mr Poulos and from the part time employee of the business who spoke to and e-mailed the Department, Mr Goodwin.

33. The Tribunal is satisfied on the basis of the evidence before it that the applicant undertakes the tasks associated with a Management Accountant in his role with the nominating business.

34. The fact that the applicant happened to be, on the day of the Departmental phone call assisting in the distribution of sales catalogues does not detract from that evidence. Indeed a small family run operation, will at times, require an employee to assist with something that may not be within the purview of their job description. A diligent employee will undertake the tasks associated with their specific job description and at times be willing to assist with an additional task that may be outside of their purview.

35. The Tribunal accepts the arguments made by Mr Poulos and supported by Mr Goodwin’s account of the Departmental phone call, that something that may lead to the cancellation of an applicant’s visa needs to be conducted carefully and properly.  That will require ensuring that in order to elicit the correct information the correct person is spoken to.

36. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116([b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    decision

37. 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.

    John Cipolla
    Senior Member