SINGH (Migration)

[2019] AATA 1601

SINGH (Migration) [2019] AATA 1601 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr HARJINDER SINGH
Mrs MANPREET KAUR
Master UDAY PRATAP SINGH

CASE NUMBER:  1731418

HOME AFFAIRS REFERENCE(S):           BCC2017/3825721

MEMBER:John Cipolla

DATE:16 January 2019

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 16 January 2019 at 8:37am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Fleet Manager – evidence of position duties provided – applicant working in nominated position – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors 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 5 December 2017 made by a delegate of the Minister for Immigration and Border Protection 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 not working in the position for which he had been nominated ,namely that of Fleet Manager.. 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 were represented in relation to the review by their registered migration agent.

5. 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

6. 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). 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?

7. 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 visa holder must work in the occupation listed in the most recently approved nomination.

8. The evidence before the Tribunal indicates that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa which was dated 18 October 2017. The NOICC indicates that the applicant was granted a Subclass 457 visa on 18 December 2015 and had been sponsored by Halk Carriers Pty Ltd to work in the position of Fleet Manager. The NOICC makes reference to the ANZSCO occupational dictionary which outlines the tasks attributed to this position.  The NOICC states that on 5 April 2017 a Departmental officer conducted a telephone interview with the applicant. During the telephone interview the applicant was asked about his role with the company and is recorded to have stated that he would check tyre pressure, water levels, engine oil and break oil in all trucks and report any issues to the mechanic.  He is recorded as stating that he did not drive trucks, but that he helps drivers load and unload goods and he would hire additional trucks if there was a need to do so.  The delegate based on this conversation concluded that the tasks carried out by the applicant were not aligned with the position for which he had been nominated and aligned more with that of a Truck Drivers Offsider or a Delivery Driver.  The Departmental delegate concluded that the applicant had not complied with paragraph 8107(3)(a)(i) of condition 8107 attached to his visa. The applicant was invited to comment on whether he believed that the ground for cancellation existed and having regard to the relevant considerations whether or not the visa should be cancelled.

9. The applicant responded to the NOICC asking for an extension of time to provide a response.  This was duly granted by the Departmental delegate.  The applicant in his response advised that he was applying for a new nomination with a new sponsoring employer Simron Traders Pty Ltd who wished to sponsor him to work in the position of Transport Company Manager.

10. The Departmental delegate considered the response and found that the ground for cancellation of the applicants visa existed and having regard to the relevant considerations determined that the visa should be cancelled.

11. The applicant lodged an application for review with the Tribunal on 12 December 2017 and attached to the review application was a copy of the Departmental decision.

12. The applicant appeared before the Tribunal on 15 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the Managing Director of the sponsoring business, Halk Carriers Pty Ltd, Mr Alan Hallak.

13. The Tribunal received a number of documents at the commencement of the review hearing which it has duly considered.  These included the following: a statement from the applicant dated 15 January 2019 outlining the attributes of his position of Fleet Manager/Transport Company Manager whilst working for his nominating employer; a statement from the applicant’s employer noting that the applicant prior to the cancellation of his visa had worked in his business as a Transport Company Manager/Fleet Manager outlining the duties of the position; a statement from Mr Neeraj Sharma a sub-contractor who worked for the nominating business and attested to the fact that the applicant worked in a position of Transport Company Manager/Fleet Manager and that he observed the applicant on a number of occasions working in this role; a number of payslips from the nominating business pertaining to the applicant as well as bank accounts pertaining to the applicant from the ANZ Bank covering the period of the applicants employment as a 457 visa holder.

14. The Tribunal explained in detail the issues in review and the process of merits review for the benefit of the applicant.

15. The Tribunal asked the applicant about his immigration history. The applicant advised that he first arrived in Australia in April 2009 as the holder of a Subclass 572 student visa. The applicant advised that he was issued with a number of Student visas from the Department of Immigration over a period of 5 years. The applicant stated that he initially commenced a Hospitality and Commercial Cookery course at Holmes College but only completed 50% of this course before transferring to a Diploma of Management. The applicant advised that he completed a Diploma of Management at Strathfield College followed by an Advanced Diploma of Management and a Diploma of Human Resources. The applicant confirmed he held Diplomas for each of these completed courses.

16. Upon completion of his studies, the applicant applied for a Subclass 457 visa to work as a Fleet Manager with Halk Carriers Pty Ltd.  The applicant advised that prior to making this application he had worked for this business on a part-time basis.

17. The Tribunal asked the applicant to describe the business. The applicant stated that ostensibly it was a delivery business that had a number of small to medium trucks to deliver predominantly milk, bread and vegetables and that the business had a contract with Tip Top Bakeries.  The applicant advised that the business employed 7 people, 4 of whom worked in the office including his role of Fleet Manager, a Receptionist and two Clerical Officers and 3 people who worked as contractors for the business.

18. The Tribunal asked the applicant to describe his role as Fleet Manager. The applicant advised that he was involved in liaising with clients of the business regarding deliveries and transportation schedules, he was involved in the preparation of a roster for the employees in the business, he would ensure that the vehicles used in the business were all roadworthy and operational and organise any relevant repairs. The Tribunal asked the applicant the names of repairers that the business used and he advised U P Truck Repairs at Chullora and S&P Auto Repairs at Blacktown.  The applicant advised he was also involved in arranging the collection and delivery of vehicles and ensuring that goods being transported and delivered met the requirements of customers. The applicant also advised that he was involved in collating the relevant hours that contractors and subcontractors worked in the business. The applicant stated that he fielded calls from any contractors and customers on a daily basis to address any issues and concerns.

19. The Tribunal asked the applicant about the conversation that he had with the Department of Immigration on the telephone on 5 April 2017. The applicant stated that at the time of the phone call he was caught unaware, the applicant stated that the business was extremely busy at that time of the call and that an additional issue for him was that he had recently learnt of the death of his grandmother in India. The applicant recalled that he advised the delegate that he was involved in ensuring that the vehicles operated by the business were mechanically fit for operation. The applicant confirmed that he advised the Departmental delegate that he did not drive the trucks, but at times, when the business was extremely busy and he had some free time, he would assist drivers loading and unloading goods. He also advised the Departmental delegate that he would hire additional trucks for the business if there was a need to do so.

20. The Tribunal asked the applicant what hours he worked for the business. The applicant stated that he worked 38 hours per week with some overtime. The applicant stated that he normally worked between the hours of 5am to 1pm.

21. The Tribunal asked the applicant whether he had work rights on his current Bridging visa and he advised that he did not. The Tribunal asked the applicant how he was surviving in the community with a wife and child without permission to work. The applicant stated that his former boss, Mr Hallak provided him with a small amount of money from time to time and that he was also deriving support from a friend. The applicant stated that since his visa was cancelled in 2017 he had not worked. The Tribunal queried why the applicant’s representative had not made an application for permission to work given that the applicant was clearly experiencing financial hardship. The applicant did not know the reason why such an application had not been made.

22. The Tribunal took evidence from the owner/manager of Halk Carriers, Mr Alan Hallak. The witness advised that his business was located in Canley Vale and was a transport business that operated small and mid-size trucks and utilities for the delivery of a range of items. He advised the business had a substantial contract for the distribution of bread with Tip Top Bakeries. The Tribunal asked the witness how many employees worked in the business. He advised there was a total of 7 made up of drivers, a receptionist, and that the applicant had worked as a transport service manager/fleet manager controlling the operation of the fleet of vehicles on behalf of the business. The Tribunal asked the witness how long the applicant had worked for him. He advised that he commenced work for the business in January 2016 until the cancellation of his visa in late 2017. He advised that prior to the applicant obtaining a Subclass 457 visa that he had worked for the business on a part-time basis. The Tribunal asked the witness to describe the tasks of the applicant in the nominated position. He advised that the applicant oversaw pickups and deliveries for the fleet of trucks and utilities and also oversaw drop-offs to customers. He advised that the applicant was involved in the leasing of additional vehicles when required, the insurance and registration of vehicles, and organising for mechanical repairs when necessary. The Tribunal asked the witness what mechanical repairers the business used, and he advised two repairers, one based in Chullora and the other in Blacktown and from time to time a mobile mechanic.

23. The Tribunal asked the witness how the applicant and his wife and child were surviving given that the applicant did not have permission to work. The witness stated that the applicant would occasionally ask him for help and as he had been a solid asset to the business and worked hard.  The witness advised that he would give the applicant a small amount of money from time to time to assist him. The witness advised that the applicant was a good worker and that he worked on average 8 hours a day starting at 5am and that he would be happy to engage in overtime. The witness stated that he would be happy to employ the applicant again if the visa cancellation was set aside. The witness described the applicant as being trustworthy and honest and that he had known the applicant for in excess of 3 years. The Tribunal asked the witness whether he had employed any overseas workers prior to the applicant and he advised that the applicant was his first overseas worker.

24. The Tribunal deferred to the applicant’s representative to ask whether there was anything he wished to raise and he advised that he did not. The hearing concluded.

25. The evidence before the Tribunal indicates that the applicant was granted a Subclass 457 visa on 18 December 2015 which, prior to its cancellation, was valid until December 2019. The Tribunal has had regard to the ANZSCO Occupational Dictionary which refers to Unit Group 1494 Transport Service Managers. The dictionary notes that Transport Service Managers organise and control buying and selling of vehicles for rental agencies and coordinate the leasing of the vehicles, the operations of railway stations and the operations of enterprises that operate fleets of vehicles to transport goods and passengers. Within this occupational groups sits Fleet Manager who organises and controls the buying and selling of vehicles for rental agencies and coordinates the leasing of vehicles and the registration and licensing of vehicles as required.

26. The cancellation of the applicant’s visa was grounded on a telephone call by a Departmental delegate to the applicant whilst he was at work on 5 April 2017. The delegate formed the view after a conversation with the applicant that the tasks carried out by the applicant were not aligned with the position for which he had been nominated and seemed more aligned with that of Truck Drivers Offsider or Delivery Driver.

27. At review the Tribunal has been given additional evidence that wasn’t before the delegate including statements from the applicant and his nominating employer pertaining to his role with the business Halk Carriers Pty Ltd.  The Tribunal has also had an opportunity to take direct evidence from the applicant and his nominating employer at a review hearing. Both the applicant and his employer gave a consistent account of the applicant’s role in the business as the holder of a Subclass 457 visa. Having regard to the ANZSCO Occupational Dictionary specifically unit group 1494 Transport Company Managers which incorporates Fleet Managers, the Tribunal is satisfied that the applicant whilst employed by Halk Carriers Pty Ltd did engage in activities and tasks that were aligned with the position for which he had been nominated.

28. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

29. 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.

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

    John Cipolla
    Senior Member