1504510 (Migration)

[2015] AATA 3001

1504510 (Migration) [2015] AATA 3001 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jay Sharadchandra Dave
Mrs Dhwani Jay Dave

CASE NUMBER:  1504510

DIBP REFERENCE(S):  BCC2014/1694507 C6ZL4HT55

MEMBER:Glen Cranwell

DATE:1 July 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 857 (Regional Sponsored Migration Scheme) visa.

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

Statement made on 01 July 2015 at 11:46am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 March 2015 to cancel the first named applicant’s Subclass 857 (Regional Sponsored Migration Scheme) visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the first named applicant (the applicant) did not commence the employment referred to in the relevant employer nomination within the prescribed period, and did not make a genuine effort to do so. 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 that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the other applicant.

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.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

   Whether the ground of cancellation exists - employment not commenced

7. Under s.137Q(1) the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in r.2.50AA.

8. The applicant was nominated for his Subclass 857 visa by Pegasus Accounting.  The governing director of Pegasus Accounting was Walter Frymml.  The nominated occupation was Accountant.

9. The applicant provided the Tribunal with extensive submissions on 30 June 2015.  These submissions included the following documents:

   ·Letter from Peter Currie Real Estate dated 24 June 2015, advising that the applicant was recommended to Walter Frymml by them.

   ·Payslips from Pegasus Accounting in the name of the applicant.

   ·PAYG summary from Pegasus Accounting in the name of the applicant.

   ·Letter from Walter Frymml dated 31 March 2015, denying that he told Departmental officers that the applicant’s normal working hours were from 9 am to 5 pm.

   ·Commonwealth Bank statements of the applicant with each page endorsed, refuting the delegate’s findings that some of the bank statements provided to the Department were not genuine.

   ·Statutory declaration of Robert Longhurst, confirming that the applicant worked at Allied Mills on the afternoon shift and that he was aware that the applicant worked at Pegasus Accounting earlier in the day.

   ·Statutory declaration of Lina Cammarota, confirming that the applicant worked at Allied Mills on the afternoon shift and that he was aware that the applicant worked at Pegasus Accounting earlier in the day.  Ms Cammarota also stated that she engaged the applicant at Pegasus Accounting to prepare her tax returns.

   ·Statutory declaration of Colin Raeburn, confirming that he was a customer at Pegasus Accounting and that the applicant performed work on his behalf.

   ·Statutory declaration of Paul Sciberras, confirming that he was a customer at Pegasus Accounting and that the applicant performed work on his behalf.

   ·Letter from Kayla Waters dated 25 May 2015, confirming that she was a customer at Pegasus Accounting and that the applicant performed work on her behalf.

   ·Letter from Chris Clark and Buppha Prasertsom dated 26 May 2015, confirming that they were customers at Pegasus Accounting and that the applicant performed work on their behalf.

   ·Statutory declaration of Dhaval Gandhi, confirming that the applicant worked at Pegasus Accounting during the period he also worked there.  He was also aware that the applicant did a shift at Allied Mills after completing work at Pegasus Accounting for the day.

   ·Statutory declaration of Jimmy Gupta, confirming that he was a customer at Pegasus Accounting and that the applicant performed work on his behalf.

10. The Tribunal considers that the evidence above establishes that the applicant was employed on a full-time basis by Pegasus Accounting from the date of the grant of the visa on 18 July 2012 until 1 August 2014.  He undertook full-time employment with Pegasus Accounting primarily in the mornings and early afternoon, and on Saturdays.  There is nothing in the applicant’s visa conditions to prevent him working elsewhere in the late afternoons and evenings, as he did at Allied Mills.  He also later worked for Euro Solar.  The payment of the applicant in cash and the late payment of superannuation contributions do not assist the applicant’s case, but in the Tribunal’s view these factors do not outweigh the large body of evidence in support of the applicant’s employment.  As noted in the ATO documentation provided to the Tribunal, cash in hand is a legitimate form of payment, although it does permit greater scope for abuse.

11. Ultimately, the Tribunal must make its decision on the basis of the evidence before it, not mere suspicion.  The Departmental file does contain community allegations of fraud, which are protected by s.375A of the Act.  These do give rise to suspicions regarding the applicant’s employment.  However, for these allegations to be true, 6 persons would have to have perjured themselves in the statutory declarations provided to the Tribunal.  In addition, the unsworn accounts by others would also have to be false.  Against this, the Tribunal has to take into account the possibility that the community source had a particular animus towards the applicant.  Given the means by which the information was received, the Tribunal has not had the opportunity to explore this with the source.  On balance, the Tribunal considers the evidence set out above is more likely to be reliable, and it is on this basis that its decision has been made.

12. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 857 (Regional Sponsored Migration Scheme) visa.

14. The Tribunal has no jurisdiction with respect to the other applicant.

    Glen Cranwell

    
    

    Member