Upton (Migration)

[2019] AATA 5483

Upton (Migration) [2019] AATA 5483 (28 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Louis Edward Upton

CASE NUMBER:  1914094

HOME AFFAIRS REFERENCE:               BCC2019/993621

MEMBER:Lilly Mojsin

DATE:28 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 November 2019 at 3:29pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – worked for businesses other than sponsor – assistance to friend for no financial benefit – short period of time – continued to work for sponsor – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 May 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s 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 breached condition 8107 (3)(a)(ii)(b). The issue in the present review is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Joseph Anderson.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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 was attached to the applicant’s visa.

6. The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is A P EAGERS LIMITED (‘the sponsor’), whose nomination was approved on 9 May 2016. The visa holder was nominated in the occupation of Sales and Marketing Manager (Australian and New Zealand Standard Classification of Occupations ANZSCO 131112).

7. The occupation of Sales and Marketing Manager (ANZSCO 131112) is not one specified in the relevant instrument referred to in subclause 8107(3A) to exempt the visa holder from having to comply with the requirements of subclause 8107(3)(a)(ii). Therefore, while he continues to hold the subclass 457 visa he can only lawfully work in Australia for either the sponsor or an associated entity of theirs.

8. Condition 8107 relevantly requires:

   8107

   (1)       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)        …………:

   (A)       ……….; 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;

9. Information before the Department indicated that the visa holder worked in a position other than in the business of the sponsor or an associated entity of the sponsor.

10. Payment transactions dated 31 July 2018 and 07 September 2018 on behalf of OZ-ELIQUID PTY LTD and the Department found that these payments indicated that the applicant has been employed by OZ-ELIQUID LIMITED. Further, the applicant was nominated to liaise with Australian Border Force (ABF) by OZ-ELIQUID LIMITED regarding a business matter whist holding his current Temporary Work (Skilled) (subclass 457) visa.

11. The applicant stated to the Department and to the Tribunal:

    ·His close friend, Joseph Derek Anderson owns OZ-ELIQUID PTY LTD who he has known as a friend for eight years.

    ·As a close friend, the applicant Mr Anderson working on his business with no personal gain associated. Due to his career as a Sales and Marketing Manager, the applicant  often discussed his business and gave Mr Anderson advices. The visa holder was never and has never been employed or performed work for Mr Anderson or his business.

    ·The applicant taught Mr Anderson how to internationally transfer money via TRANSFERWISE and WESTPAC. On 31 May 2018 at their dinner the applicant  helped Mr Anderson to understand exchange rates and introduced him to TRANSFERWISE, a viable option to send money overseas from Australian bank account. The applicant had assisted Mr Anderson with authorising payments from 11 July 2018 to 16 August 2018. Mr Anderson was overseas from 23 June 2018 to 15 July 2018, the applicant’s assistance was requested. The applicant was merely helping his friend. He never received any financial benefit for assistance. The applicant  assisted his friends to complete a deal with WESTPAC for a better exchange rate in August 2018.

    ·7 September 2018 the applicant authorised payments to the suppliers in Mr Anderson’s presence.

    ·The applicant helped Mr Anderson in dealing with his files and finding information requested by ABF as Mr Anderson was stressed and came to him for advice. The applicant provided assistance in searching in his emails for relevant information. Over the phone with ABF, Mr Anderson nominated the visa holder to correspond with ABF.

    ·There is no formal documentation in relation to this nomination. The applicant agreed to help and was given access to email account. He did not receive any financial benefit for this assistance.

    ·The applicant has been working hard in his current nominated position with the sponsor. He has provided his pay slips and a letter from his employer.

12. The applicant and Mr Anderson provided statutory declarations to the Tribunal outlining the circumstances of the assistance given by the applicant to Mr Anderson.

13. The applicant and Mr Anderson gave consistent evidence to the Tribunal. Mr Anderson explained that he was not good with computers and when his friend offered to assist him he was grateful. He did not pay him for any assistance. Mr Anderson now has an accountant. He did not have an accountant at the time the applicant assisted him.

14. Condition 8107(1)(a)(ii)B requires the applicant only work in a position in the business of the sponsor or an associated entity of the sponsor;

15. The Tribunal give the applicant the benefit of the doubt and accepts that the applicant did not receive payment for his assistance to Mr Anderson. The assistance was for a short period of time. The Tribunal is satisfied the applicant works for his sponsor at the time he assisted Mr Anderson and that he continues to work for this sponsor.

16. 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.

17. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    Lilly Mojsin
    Member