1418235 (Migration)

[2015] AATA 3259

1418235 (Migration) [2015] AATA 3259 (30 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gurpreet Singh Cheema
Mrs Jugjeet Kaur

CASE NUMBER:  1418235

DIBP REFERENCE(S):  BCC2014/1308565

MEMBER:Fraser Syme

DATE:30 July 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 30 July 2015 at 1:51pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 October 2014 made by a delegate of the Minister for Immigration 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 first named applicant had not complied with 8107(3)(a) & (b) of the subclass 457 visa he previously held. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The first named applicant included the delegate’s decision record with the review application.

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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

4. The applicants appeared before the Tribunal on 10 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages, although the first named applicant largely addressed the Tribunal in competent English. The second named applicant addressed the Tribunal largely with the assistance of the interpreter.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing. She attended the hearing and provided written submissions before and after the hearing attaching supporting documents. The Tribunal has had regard to that information, which is set out relevantly in more detail below.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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)(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?

   s.116(1)(b) - non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 was attached to the first named applicant visa. The requirements of this condition include 8107(3)(a) and (b). Condition 8107(3)(a) requires the first named applicant must only work in the occupation listed in his most recently approved nomination and must work only in a position in the business of the sponsor or an associated entity of the sponsor. Condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. An extract of condition 8107 is attached to this decision.

9. The decision of the delegate sets out that:

   a.The first named applicant was granted a subclass 457 visa on 17 July 2013 (valid until 1 April 2017) under an approved nomination of his former sponsoring employer, Cheema Hospitality Pty Ltd (“CH”) as a café and restaurant manager The visa conditions on that visa included condition 8107;

   b.Departmental officers located the first named applicant working at Kedron Ecoblue Carwash Café (“Ecoblue”) on 9 January 2014. A manager of Ecoblue told the department the first named applicant that day was the applicant’s first day back on the job;

   c.The delegate sent to the first named applicant a notice of intention to consider cancellation (“NOICC”) of the first named applicant’s subclass 457 visa on 11 August 2014;

   d.The first named applicant replied on 14 August 2014. He did not agree there are grounds for cancelation of his visa. He stated CH ceased operations on 7 March 2014. He notified the department of that. He had no worked for any other employer since that date. He was awaiting the outcome of a nomination application in relation to him by a new sponsor ND Stores Pty Ltd (“NDS”) as cafe and restaurant manager. He had worked at Ecoblue as a shift supervisor from October 2012 to June 2013. Therefore he knew the staff. He stopped by at Ecoblue on 9 January 2014 after dropping the second named applicant at work. The staff offered him a free, do-it-yourself carwash, which he accepted;

   e.The department had no records of the first named applicant notifying it that CH has ceased operations;

10. Departmental records show NDS applied to nominate the first named applicant as a café and restaurant manager on 12 May 2014.

11. Prior to the hearing, the first named applicant provided documents to support his claims he remained employed by CH up to 7 March 2014 and that he did not work at Ecoblue. These included:

    Employment by CH

    a.bank statements of CH and of the first named applicant for the period January to March 2014.

    b.A final electricity bill dated May 2014, a letter from the local council confirming termination of an outdoor dining licence dated April 2014 and deed of surrender of lease dated August 2014 (with effect from July 2014) – which the Tribunal noted at the hearing are all largely consistent with the applicant closing down CH in March 2014, but do not show that the first named applicant was employed at CH.

    c.ASIC forms dated 5 March 2014 that CH appointed a new ASIC registered agent – which is consistent with the applicant’s claims he got advice to close CH, which he did on 7 March 2014 and which he notified to the department in a letter of that date as part of his response to a commencement of monitoring request the department sent to CH on 3 March 2014.

    d.A statutory declaration of the first named applicant stating, he only worked for CH which ceased on 7 March 2014. The Tribunal discussed this evidence with him in detail.

    e.A statutory declaration of Mr A that he was a customer of CH’s business, he gave advice to the applicant regarding business difficulties and ‘to the best of (his) knowledge, (CH’s) business closed in or about March 2014.” The Tribunal noted at the hearing the content of Mr A’s declaration was less than definite and it would therefore put lesser weight on it.

    Non-employment by Ecoblue

    f.The statutory declaration of the first named applicant further states:

    i.He worked at Ecoblue from October 2012 to June 2013.

    ii.He went to Ecoblue on the morning of 9 January 2014 to wash his car, it was busy, so he was told he could self-wash his car for free, which he did.

    g.internal emails between departmental officers which include

    i.on 9 January 2014, when departmental officers went to Ecoblue, the first named applicant and another person left the premises to avoid being checked.

    ii.the manager of Ecoblue, Mr F, gave the applicant’s name, date of birth and address to departmental officers. Mr F said the first named applicant worked at Ecoblue until June 2013 and 9 January 2014 was his first day back at work. The Tribunal noted the records of the department were incomplete regarding what happened on 9 January 2014.

    h.a letter from Mr F dated 16 August 2014 stating the first named applicant worked at Ecoblue from October 2012 to June 2013. On 9 January 2014, the first named applicant washed his own car ‘as permitted by the manager’.

    i.A statutory declaration of a migration agent about conversations she had with Mr F, including:

    i.The first named applicant called Mr F on 9 January 2014, Mr F did not realise who the first named applicant and assuming he was a casual employee looking for work, said ‘yes’.

    ii.The first named applicant later came to Ecoblue and washed his own car. At that time, departmental officers arrived and in a panic that he had not kept accurate worker records, Mr F told the departmental officers the first named applicant was a working his first day. He signed a statement to the department to that effect.

    iii.Mr F initially offered to swear a statutory declaration about those events, but later declined, because he had signed the statement to the department. The Tribunal noted the variances in the evidence of Mr F made it difficult to put weight on his evidence as it was unable to be sure which of the different versions of his account of what occurred on 9 January 2014 was the correct one.

12. The applicant told the Tribunal CH’s business took a downturn after Christmas 2013. He insisted he continued to work for CH until he handed back the keys to his landlord on 7 March 2014. For the reasons mentioned above regarding the evidence he provided the Tribunal indicated it was not yet satisfied the applicant remained working with CH in January, February and March 2014. The applicant told the Tribunal he had done BAS for that quarter. He had given supplier receipts to his accountant. He had no records of paying rent to his landlord because he did so by depositing cash to the bank account of his landlord accumulated by a combination of sales, loans from the second named applicant and friends.

13. The second named applicant gave no additional evidence regarding the first named applicant working for CH. The migration agent asked the Tribunal to question the second named applicant about rent payments to the landlord, but she did so in such a way which disclosed much of the first named applicant’s evidence about that issue. The Tribunal therefore declined to question the second named applicant about that issue and instead invited the first named applicant to provide alternate sources of supporting evidence of his rent payments.

14. The first named applicant told the Tribunal he did not work at Ecoblue on 9 January 2014. He asked the supervisor for permission to wash his own car. He did not leave the premises when the departmental officers arrived. He was unaware of there being any departmental officers present and did not speak to them. It was commonplace for employees to wash their own cars for free. When asked why did he stop to wash the car that day, was he not in a hurry to return to Coffs Harbour to open his restaurant for lunch service, he replied the restaurant did not open for lunch on weekends. When the Tribunal noted 9 January 2014 was a Thursday, he then said he told the department in his monitoring response he had annual leave that day. It concerns the Tribunal the applicant made reference to events occurring on a weekend, rather than a Thursday and that he referred to documents provided to the department for another matter, rather than relying on his memory of events which genuinely occurred.

15. The Tribunal put to the applicant it was difficult to accept the plausibility that he just happened to be at Ecoblue and just happened to be washing his own car on the day that departmental officers visited. He said that is what happened. He told the Tribunal all Ecoblue staff wore a uniform t-shirt. He was not wearing a t-shirt that day. The Tribunal put to him if he was not wearing the uniform t-shirt why would departmental officers queried Mr F about him and, more importantly, why would Mr F tell the departmental officers the first named applicant was a newly started employee. The first named applicant had no comment. The Tribunal told the first named applicant it considered his credibility as a witness was an issue.

16. The second named applicant provided no additional evidence regarding the first named applicant not working for Ecoblue.

17. The Tribunal agreed to the first named applicant’s request to provide additional supporting documents within 7 days after the hearing. It then preceded to discuss with the applicants the exercise of its discretion not to cancel their visas on the hypothetical basis that additional evidence to did not satisfy the Tribunal the first named applicant had complied with the conditions of his former visa.

18. After the hearing, the applicant’s migration agent provided two emails between the first named applicant and CH’s landlord dated in April and July 2014 about payment of arrears of rent and a deed of surrender of lease previously provided to the department. Despite indicating during the hearing CH had done BAS for the January – March quarter 2014 and providing operating receipts to the company accountant, none of that evidence was provided, neither was there a request for additional time to provide such evidence or an explanation why it was no longer available to provide to the Tribunal.

19. On the evidence before it, the Tribunal is not satisfied CH continued to operate its restaurant business in Coffs Harbour in January, February and March 2014. While it notes the statutory declaration of Mr A, it considers the contents to be quite vague and outweighed by the first named applicant inability to provide other evidence demonstrating CH operated the business during that time. The Tribunal is mindful some transactions on his personal bank account occurred in Coffs Harbour during those three months, there too were transactions in Brisbane for the same corresponding period. The Tribunal considers it reasonable if CH was operating the restaurant business at that time it would have generated paperwork such as tax invoices for purchasing restaurant supplies and ingredients, rent receipts as well as bank statements recording significant more transactions than the statements before the Tribunal. The other evidence provided: final utilities bill; cessation of outdoor dining licence and correspondence about arrears of rent and surrender of the lease are all consistent with CH closing down the restaurant business but do not satisfy the Tribunal CH continued to operate the restaurant business in January, February and March 2014 and therefore does not satisfy the Tribunal the first named applicant continued to be employed by CH during that period.

20. The Tribunal is not satisfied the applicant was employed by CH in January 2014. It does not accept as credible the first named applicant’s claim that he remained employed by CH until 7 March 2014. It does not accept as credible his claim he paid rent in January, February and March 2014 from a combination of cash from takings and loans from the second named applicant and friends. The Tribunal considers the first named applicant was not a credible witness and that he has fabricated these claims in attempt to demonstrate he was not employed for less than 90 days prior to ND Stores Pty Ltd (“ND”) applying to nominate him on 12 May 2014.

21. On the evidence before it, the Tribunal considers the first named applicant and second named applicant relocated to Brisbane in early January 2014 looking for work alternative work, she taking up work for her former employer and him looking for work at Ecoblue. The Tribunal is not persuaded by the first named applicant’s explanation that he was just washing his own car on 9 January 2014. The Tribunal places weight on the evidence of Ecoblue staff all wearing t-shirt uniforms and infers that if he was not wearing such a uniform, the departmental officers would not have questioned Mr L about the first named applicant being on the premises of Ecoblue that day. The Tribunal considers on the evidence before it the first named applicant likely had only in the prior few days recommenced work with Ecoblue. It reaches that conclusion on Mr L having the first named applicant’s details to hand when questioned by the departmental officers in January 2014 but otherwise considers the evidence of Mr L to be unreliable as he has given different accounts on different occasions as to what occurred that day and ultimately has declined to provide sworn evidence about those events. For the same reason the Tribunal places little weight on the statutory declaration of the migration agent setting out her discussions with Mr L or the letter from Mr L. The Tribunal rejects the evidence of the first named applicant that he did not see any departmental officers at Ecoblue and that he did not leave the premises. The Tribunal places more weight on the departmental notes that the applicant provided to the Tribunal prior to the hearing. Those notes record departmental officer seeing the applicant depart Ecoblue’s premises and of  Mr L providing the first named applicant’s details when asked by the departmental officer. The Tribunal is willing to accept the first named applicant did not return to work at Ecoblue after 9 January 2014. It reaches that finding on the implication of Mr L’s evidence that he was concerned regarding compliance steps the department may take against Ecoblue and therefore would not have permitted the first named applicant to continue employment there.

22. To comply with condition 8107(3)(b), the first named applicant cannot be unemployed for more than 90 consecutive days, which in relation to 12 May 2014 commenced from 11 February 2014. The Tribunal has found the first named applicant ceased work with CH sometime in early January 2014, which is more than 90 days before 12 May 2014. In any event, 12 May 2014 is not the date that the first named applicant commenced being employed under a new approved nomination in relation to him by an approved sponsor. The Tribunal finds the first named applicant has not complied with condition 8107(3)(b).

23. The Tribunal finds too that the first named applicant has not complied with the condition 8107(3)(a)(ii)(B) of his visa because he worked for Ecoblue. Ecoblue are were not the approved sponsor of the first named applicant nor is there evidence to suggest Ecoblue is an associated entity of CH. Furthermore, the Tribunal is satisfied none of the circumstances in 8107(3A) are relevant to the first named applicant.

24. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

25. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

26. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

1. The Tribunal considers the circumstances relevant in the case of the first named applicant are:

   • the purpose of the visa holder’s travel and stay in Australia

2. The purpose of the subclass 457 visa is to permit the first named applicant to work in a nominated position for an approved sponsor. The Tribunal considers that the first named applicant has not worked with the approved sponsor January 2014 weighed in favour of cancelation of his visa.

3. The first named applicant provided evidence of a new approved sponsor, ND applying on 12 May 2014 for an approved nomination in relation to him.   ND withdrew that nomination application in November 2014 after the cancelation of the first named applicant former visa. The first named applicant provided evidence that the applicants are subject of a second nomination application of Fish 7 Pty Ltd atf the Fisher Family Trust (“Fish”). That is a nomination for a regional nomination visa lodged on 16 June 2015.

4. The migration agent submitted the existence of Fish’s pending nomination application is a factor weighing in favour of not cancelling the first named applicant’s visa. The applicants explained he interviewed for and was offered that position prior to receiving notice of the Tribunal hearing. The Tribunal agreed after it had received the additional documents regarding whether or not the ground for cancellation existed, if it found the ground was made out, it would consider whether to allow the first named applicant additional time to await the outcome of Fish’s nomination application. The Tribunal noted the evidence before it did not suggest any hardship to Fish if it affirmed the decision to cancel the visas. 

   • reason and extent of any breach of a visa condition (if relevant) and circumstances in which ground of cancellation arose

5. The decision of the delegate found the first named applicant breached two limbs of condition 8107. Firstly, the delegate found the first named applicant breached 8107(3)(a) because he worked for Ecoblue and the evidence before the delegate did not satisfy the delegate Ecoblue was an associated entity of CH (the term ‘associated entity’ is defined in r.2.57(1) for Part 2A – to be per the meaning in section 50AAA of the Corporations Act 2001). Secondly, the delegate found the first named applicant breached condition 8107(3)(b) because although he claimed not to have worked only since 7 March 2014 (when CH ceased operating), the delegate found CH had ceased operating no later than 8 January 2014 (the date before the first named applicant was located at Ecoblue) and more than 90 days passed between the first named applicant ceasing work with CH and being subject of the nomination application by ND on 12 May 2014.

6. The Tribunal considers extent of the breach is he remained not employed under an approved nomination from early January 2014 to the cancelation of his 457 visa in October 2014. While there are ameliorating reasons for the length applicant’s breach, including the failure of CH’s business and the withdrawal ND’s nomination of him, the Tribunal considers those reasons are outweighed by the extent of the breach being far in excess of 90 consecutive days. Aggravating the extent of the breach is the first named applicant working with an employer who was not his approved sponsor, Ecoblue, in January 2014 – even if that was a relatively short period of employment.

7. The Tribunal considers the reason, extent and circumstances for cancelation weigh in favour of cancelling the first named applicant’s visa.

   • degree of hardship that may be caused

8. The first named applicant said he had lost a lot of money through the failure of CH’s business. He had lived in Australia for 6-7 years. He has a three year old daughter. He would struggle to re-start a life in India. He told the Tribunal both his and the second named applicant’s parents were still in India. The second named applicant stated they had spent all their money on CH’s business, so they have less money now to look after their daughter. She agreed that the cost of living in India is lower than in Australia, but commented the cost of living had increased greatly in India since the applicants left India.

9. The Tribunal accepts it will be of economic detriment to the applicants if the Tribunal affirms the decision. However, the Tribunal that does not outweigh the other considerations in favour cancelling the first named applicant’s visa.

   • past and present conduct of the visa holder towards the department

10. The information before the Tribunal does not otherwise indicate any past or present conduct of the applicant which would weigh in favour of cancelling the applicant’s visa.

    • if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

11. The applicant’s breach is not related to r.2.43(1)(la).

    • whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

12. The applicant conceded there is no possible consequence of indefinite detention if his visa is cancelled.

    • whether there would be consequential cancellations under s.140

13. The second named applicant will have her visa consequentially cancelled under s.140. There is no suggestion the second named applicant has failed to comply with any condition of her visa. The Tribunal considers the consequential cancelation in circumstances where the conduct of the second named applicant is not in question weighs slightly in favour of not cancelling the applicants’ visa.

    • whether any international obligations would be breached as a result of the cancellation

14. Neither the first named applicant nor the second named applicant raised any issues regarding an international obligation that would be breached in the visa was cancelled.

    • the impact on any victims of family violence

15. Neither the first named applicant nor the second named applicant raised any issues regarding family violence.

    • any other relevant matters raised by the visa holder.

16. The first named applicant raised the issue of Fish’s nomination, which was outstanding as at the date of the Tribunal hearing. The Tribunal indicated an approved nomination may weigh in favour of not cancelling his visa, and refusal of the nomination may weigh in favour of cancelling his visa. But the outcome of the nomination would be only one of the considerations the Tribunal would balance in determining how to exercise its discretion. As at the time of the Tribunal’s decision the nomination application of Fish remains undecided. The Tribunal considers it reasonable to make a decision without awaiting the outcome of the nomination. The evidence before the Tribunal does not suggest there would be any hardship to Fish if the Tribunal affirmed the cancelation of the first named applicant’s visa. Furthermore, the Tribunal considers the reasons for and extent of the first named applicant’s breach of condition 8107 and efforts to attempt to deny that breach would in any event outweigh the existence of a positive nomination of the first named applicant by Fish.

17. Balancing all of these factors, the Tribunal places significant weight on the first named applicant not being a credible witness and seeking to both conceal his employment with Ecoblue and his ceasing to work with CH.  The applicant was granted a Subclass 457 visa on the basis of working in a nominated occupation, for and approved sponsor but he has not done so since early January 2014.  The Tribunal accepts that was due the failure of CH’s business. Tribunal accepts that the applicants would experience some hardship were they to return to India given they lost money on their investment in CH and they have spent several years residing in Australia. The Tribunal considers the hardship to the applicants is outweighed by the extent and duration of the first named applicant’s breach of condition 8107.  Considering the matters raised by the applicant singularly and cumulatively, the Tribunal concludes the preferable decision in this case is that the first named applicant’s visa should be cancelled.

    DECISION

18. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

19. The Tribunal has no jurisdiction with respect to the second named applicant.

    Fraser Syme
    Member

    
    

    Attachment – Condition 8107

    8107    …

    (3)      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)      unless the circumstances in subclause (3A) apply:

    (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; 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; or

    (C)      if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside 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.

    (aa)      the holder must commence that work within 90 days after the holder’s arrival in Australia; and

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and

    (c)      if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:
               (i)      hold the licence, registration or membership; and
               (ii)      comply with each condition or requirement to which the licence,     registration or membership is subject.

    (3A)      For subparagraph (3)(a)(ii), the circumstances are that:

    (a)         if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    (aa)      if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

    (b)      the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.