1508758 (Migration)

[2016] AATA 3221

1508758 (Migration) [2016] AATA 3221 (5 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Gaurang Singh
Mrs Chhavi Rani
Miss Raj Nandini Singh

CASE NUMBER:  1508758

DIBP REFERENCE(S):  BCC2014/3024653

MEMBER:Lesley Hunt

DATE:5 February 2016

PLACE OF DECISION:  Brisbane

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.

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

Statement made on 05 February 2016 at 2:12pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 June 2015 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 applicant has not complied with condition 8107 on his subclass 457 Temporary Work (Skilled) visa. The condition required that the applicant must work only in the occupation listed in the most recently approved nomination. 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 appeared before the Tribunal on 26 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr K Dudwal, General Managing Director, Spencer College.  

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. 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

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?

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 is attached to the applicant’s visa. This condition requires that, if the visa is a subclass 457 (Temporary Work) (Skilled) visa, the holder must work only in the occupation listed in the most recently approved nomination for the holder.

9. Information in the departmental file, and confirmed by the applicant at the hearing, is that the relevant nomination lists the visa holder’s position as Records Manager and that he is employed by the sponsor, Spencer College.  The delegate decided to cancel the applicant’s visa because the delegate found that the applicant was working as a teacher at Spencer College Pty Ltd. and not only in the nominated position as required by condition 8107.

10. The departmental decision record indicates that the delegate based this finding after information was received from an unnamed source alleging that the applicant teaches at Spencer College. The delegate refers also to a site visit to Spencer College by departmental officers on 15 December 2014.  The delegate states in the decision record that at the site visit a staff member stated that the visa holder was employed as a teacher and the CEO of Spencer College stated that the visa holder’s time is split evenly between being a teacher and a records manager. 

11. The department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his visa. The letter contained the allegation, identified the visa condition and legislation relevant to the NOICC, and invited the applicant to respond. 

12. The applicant responded by way of a statutory declaration dated 2 June 2015.  A statutory declaration from Kulwant Singh, the Academic Manager at Spencer College, was also submitted, together with a letter from Gurnam Singh, the CEO of Spencer College, and a brief submission from the applicant’s representative N.K. Sharma of Sharma Lawyers. 

13. In his letter Gurnam Singh, CEO, stated that the applicant is employed full-time as a Records Manager and has been since 22 November 2011.  He states that there are 386 students enrolled at the college and 16 full-time staff members including Administrative staff, Compliance Manager, Marketing Manager, Student Counsellor and the applicant as Records Manager.  He states that: 

    In some emergency situation such as when staff suddenly becomes unavailable, he may do as back up induction/orientation, or do reception duties or undertake any other duty that he is able to undertake.  These duties are given by the management as per his signed contract, as per Managing Director’s discretion.  Guarang has become a valuable asset to Spencer College, his in-depth knowledge and understanding of our systems is very important to the day to day running of the college.  He has relevant tertiary qualification, experience and highly developed verbal communication and writing skills to perform the role.  Guarang demonstrates a systematic approach to managing and tracking multiple activities to deadline, a high level of IT competency and the ability to build, negotiate and maintain internal and external networks to achieve successful outcomes. 

14. Kulwant Singh, in his statutory declaration dated 1 June 2015, states in part: 

    I am employed by the college as Academic Manager.  I organise the teachers and student groups…I recall being at the Reception Desk on 15^th December 2015 as I was filling in for the receptionist who was off that day.  But I do not recall saying that Gaurang Singh is a teacher at the college.  I could not have said that because he is not a teacher.  I also say that I have never rostered him to teach students.  We all know that that he has been working at the college for a number of years as the College’s Records Manager.  I do not understand why this issue has been raised when everyone at the college knows that he is a records manager.  It is true that sometimes, when needed, he organizes catch up sessions/class, industrial training etc.  However his main role is record keeping. 

15. In his statutory declaration dated 2 June 2015 the applicant states in part the following (errors in original):

    “…I am required to perform my duties as a records manager but I am also required to undertake any other relevant duties as directed by the Managing Director.”  

    CEO’s statement also says: In some emergency situation such as when staff suddenly becomes available, he may do as back up induction/orientation, or do reception duties or undertake any other duty that he is able to undertake.  These duties are given by the management as per his signed contract, as per Managing Director’s discretion.

    It is true that on some rare occasions I have undertaken duties as directed by the management and referred to in Mr Gurnam’s statement.  I have been working as a Records Manager with the college for about four years, and it was on that basis that I was granted a subclass 457.  I have continued to perform those same duties.

    That I have been working as a Records Manager such details are shown not only in the college records but on my payslip, group certificates, my experience letter and it has been confirmed by my employer on many occasions. 

    As a Records Manager, I have onerous responsibilities, including handling sensitive information about the students.  Although it is not specifically stated in the offer letter but I and all senior employees of the college participate in orientation/inductions session. I have to distribute information documents to the students and explain their importance, and importance of policies and procedure, my role etc.

    At times, when trainers are not available for some reasons, I have been asked to distribute documents / assignments / feedback forms.  I have tried to assist students as much as I can to make their experience a happy one.  At times I organise management / staff / student meetings, and keep records of same.  I also organise industrial training for the students.  I also trained junior staff and teacher to update records on Vetrak. 

    I do not have qualifications as a teacher and we are all aware that a teacher must be suitably qualified.  I simply cannot work as a teacher.  My employer is happy with my performance as a Records Manager.  I believe that I will continue my association with them for a long time.  I have always complied with my visa conditions.

    I therefore respectfully say that in view of the above and in view of the information provided by the CEO and the Academic Manager, it is not true that I work as a teacher.  It is a question of my future, any cancellation would be disastrous for me and my family.  I have 16 month old daughter who was born in Australia, and I ask that my visa should not be cancelled.

16. The delegate cancelled the applicant’s visa and notified him accordingly.  

17. On the day of the hearing a submission from the representative and several documents were submitted in support of the review application.  The documents submitted include:

    Statutory declaration from the applicant

    Organisational chart of Spencer College

    Statutory declaration by Kulwant Singh, Academic Manager, Spencer College

    Letter from Gurnam Singh, Principal Executive Officer, Principal, Spencer College

    Letter from Alex Morita, Teacher, food production, Spencer College

    One statutory declaration from a former student of Spencer College

    Nine statutory declarations from current students of Spencer College

    Certified copy of work reference letter from Sahara Computers and Electronics Limited

    Certified copy of work reference letter from Best Western Premier Holiday Regency

    Emailed correspondence between the applicant and various stakeholders

    Original letter from the bank confirming the applicant’s salary is credited to Suncorp account.

18. In the submission the representative sets out the role of a Records Manager and the role of a Vocational Education Teacher as defined in the ANZSCO dictionary and submits that all work undertaken by the applicant accords with the definition of Records Manger and none of the tasks of Vocational Education Teacher as described in ANZSCO are undertaken by the applicant or included as part of his job responsibilities.  In addition the representative submits that the applicant does not have the registration or licence to work as a Vocational Education Teacher. 

19. The representative refers to the letters and declarations submitted by other staff.

20. The representative refers to the statutory declaration of Kulwant Singh, the Academic Manager, in which he states that he does not recall mentioning to departmental officers that the applicant is a teacher and that the applicant works fulltime as a Records Manager and occasionally when required he organises catch up sessions or classes and industrial training; however his main role is record keeping.

21. The representative refers to the letter provided by Gurnam Singh, Principal Executive Officer at Spencer College in which he clarifies the duties of the applicant in his role as fulltime Records Manager.  In the letter, Gurnam Singh refers to his conversation with the departmental officers during the site visit and states that he described the applicant’s role as Records Manager and states that he undertakes this role “full-time”.  He also stated that the applicant sometimes takes catch up classes and clarified that by this he means that when some students are failing in their course progress or lacking behind in attendance, the applicant helps them to organise themselves in order to achieve satisfactory progress. 

22. The representative notes that Gurnam Singh showed the departmental officers timetables and staff rosters and notes that the applicant’s name was not listed anywhere as teaching classes. 

23. The representative refers to the statutory declarations from past and current students of Spencer College in which they confirm the applicant’s role as Records Manager and confirm the applicant’s role in explaining certain documents to them, such as documents relating to workplace training which are required to be kept in the records, and explaining word and excel documents to them.

24. The representative refers to the letter from Alex Morita, Teacher, Food Production, at Spencer College, in which he confirms that the applicant works full-time as Records Manager.

25. The representative refers to emails and correspondence involving the applicant in his role as Records Manager. 

26. The applicant provided an additional statutory declaration dated 24 October 2015 in which he outlines in detail the tasks he undertakes on a daily basis and at key times such as during induction of new students, visits to workplaces, and when a teacher is absent.  With regard to the induction of students, visits to workplaces and when a teacher is absent, the applicant states the following (errors in original): 

    Before the induction of students, I arrange the complete student induction checklist…I accompany the Administration staff in the induction or orientation to explain about the various documents, records and update immediately if there is any change in personal information…I organise a class for the students after or before the induction in which I train them generate the unique student identifier number as some students are not familiar with the computer or online procedures. In this class only, I explain them where and how to get their documents certified. I deliver information to students about the format of the word documents such as where the unit name, unit code, student name and student ID should be in order to avoid any confusion as finally, the assessments come to me for update in the VETtrak.

    On occasions when there are many students, I deliver the information in a session because finally I have to maintain the documents and records. The main reason behind, sometimes the students do not inform if there is any change in their contact details, email IDs or when and why they are going on any leave.  Always, I have to do a lot of effort in finding out the information about where the student is and why they are missing. I have to find out from the contact in their reference list. They do not even bother to inform that they are travelling overseas. I ask them provide information, update, filling up any relevant forms which are required by us to make a note or update in the system such as course deferment etc.  I discuss this information in these sessions.

    There are times when the reception is too crowded with students and the Receptionist cannot manage the documents to be printed, copies and scans.  I then take the students with me in the computer laboratory and help them with their prints or other requirements.  As mentioned above there are many students who are not sound and familiar with word, PowerPoint, other system wares, drawing tables, colours and header-footer, they come to me for help because the computer laboratory is just next to where I sit.

    …As advised by the Academic Manager, I prepare an entry sheet in the drive for Teachers who are visiting at least one workplace and I accompany them to collect the correct set of documents and verify the authenticity of the documents produced by the student.  I enter in that sheet all the visits done by any teacher which includes the date, venue, name of the teacher and the student.  Now the teachers are quite familiar and able to record on their own.

    …As a Records Manager I remain in touch with many organizations, workplaces who contact us for industrial training, information and requirement documents etc. To keep accurate records in the files and system, I then organize sessions with students also who are going for industrial training.  In these sessions I advise students where they can approach for their industrial training and what sort of documents they will need and also what documents the organization should provide them at the end of the industrial training because these records are mandatory to be kept with the student training log book, documents and evidences.  Because I maintain the files and records, it becomes my responsibility to keep verified, accurate and authentic information so that I can produce genuine information immediately when asked for.

    I also visit the workplaces sometimes with the Teacher as instructed by the Academic Manager to tally the records which the students have produced such as the equipment, machinery, customer’s feedback form that yes these were actually there at the workplace and we have received the correct documents.  I store these evidences as well in the student’s training file.

    In some situations when the teacher is absent or there is any emergency I have organised a free period just to engage the students so that they do not feel neglected.  As a business we have instructions from the management for not to leave any students unattended.

    …Training and supervision of new staff is done on regular basis.  I advise staff in other departments on the management of their records and information.  As we have a professional kitchen and food production lab, I help the department head, file the documents related to food safety, operational health and safety, license, insurance documents, temperature records, cleaning schedules, updated list of equipment, student rosters, work-station design and layout documents and other documents. 

27. The statutory declarations from former and current students are dated in August and September 2015.  They all refer to the applicant as the Records Manager at Spencer College and describe their interactions with the applicant and the ways in which he assists them as students.  Some include references to the applicant coming to their class when their teacher has been absent. 

28. For example, Jaspreet Kaur states:  He is easily accessible as he sits very close to the reception and the computer lab.  Many times when our teacher was absent, he comes to our class which is very entertaining as we play some song games together, talk about movies, prepare nice food in the kitchen and have it together.

29. Oluwasegun Temitope Sokan states in his statutory declaration (errors in original):  …My teacher is Alex and Peter and I deal with Gaurang only for my records and updates in my file.  I has never delivered any course or subject information but I have attended get togethers in which we have cooked together, had food and fun with other classmates when the teacher was absent or in other free times…On many occasions I have taken his help to format my word and excel documents, to organise any letter properly which I need to submit in the school and a copy of which is required for my file. 

30. The applicant provided the following information at the hearing in response to questions from the Tribunal.  He commenced a Masters in Information Systems in Australia, found aspects of it too difficult and changed to a Business Studies.  He completed a Diploma in Management in May 2010.  He commenced employment at Spencer College as the Records Manager initially on a part-time basis and then on a full-time basis in November 2011.  He clarified that the College has approximately 400 students and 9 teachers.  They conduct courses in Management, Marketing, Business and Hospitality. 

1. The applicant stated that he has never been involved in the assessment of any students and has never taken any classes.  He stated that he is not qualified to teach.  Most of the classes are in hospitality and all his experience is in Information Technology and Management.  The applicant provided detailed information regarding his work in updating the college’s information technology systems; how he got rid of most of the college’s paper files and scanned and uploaded all information onto their computer system. 

2. The applicant stated that he organizes a class for the students either after or before their induction in which he trains them to generate their unique student identifier number; explains where and how they can have their documents certified; and explains the college’s record keeping requirements for each student. In these induction sessions he distributes files to each student.  He is also involved in maintaining records for the students’ industrial training as workplace training is a mandatory component of their course and it is essential that certain documents and records are maintained in each student’s file. 

3. The Tribunal referred to the statements from other staff and some students regarding his involvement in catch up sessions and as a back-up when a teach is absent and asked him to clarify his work in this regard.  He stated that in these situations he keeps the students entertained.  He does not deliver course content / information to the students.  He may help them to cook and then they will eat together.  The Tribunal put to the applicant that this is not within the role and not a task of a Records Manager.  He responded that it does not occur very often.  It is rare, maybe every three or four months it can happen.  In the last eight or nine months it would have happened twice only. 

4. The Tribunal asked the applicant about his role in helping students who are failing in their course progress or falling behind in attendance.  He responded that he deals with students on a regular basis and this is mostly on a one to one basis.  He will say to the student, this is your attendance record, you are behind and you need to attend more classes.  He relates well to the students.  He is aware of which students are at risk of falling behind because he keeps their records.  He helps the students with their own record management such as how to log-in and how to create a word document.  However it is all part of managing records. It is not teaching course content.

5. Regarding the industrial training he may go with the teacher and students to various workplaces but this is to ensure everything happens as is required and he keeps records of which students undertook which workplace based training and which equipment they used. 

6. The Tribunal referred the applicant to the delegate’s decision record and the reasons for the cancellation of his visa.  In particular the Tribunal referred the applicant to the site visit by departmental officers and the statements by the staff member on reception that he was a teacher and the CEO’s statement that he taught 50% of the time and was a records manager 50% of the time.  

7. The applicant responded that the CEO told him that when he spoke with the departmental officers he told them that the applicant is involved part-time in training and by that he meant training staff and students in the college’s record keeping systems.  He informs them about the use of the “G” drive and how to upload reports and documents.  He tells the students how to upload assignments and amend their contact details and matters like that. 

8. The applicant stated that the person on reception was the academic manager and he is not in touch with Woolloongabba staff on a regular basis he has been at the Gold Coast campus a lot since 2013.  He delegates timetables to teachers and the subjects for the week.  The applicant stated that the academic manager showed the departmental officers the roster and the applicant’s name was not on the roster and they should have taken note of that and realised he is not a teacher.  The applicant stated that the academic manager has stated in his statutory declaration that he does not recall saying the applicant was a teacher. 

9. The Tribunal asked the applicant why the academic manager and the CEO were not appearing at the hearing as witnesses.  He responded that neither of them were available.  The CEO was not available for personal reasons and the Academic Manager was not available as he could not leave the college and attend the hearing. 

10. The applicant stated that he trains reception, administration and teaching staff about the various drives in the computer and in the VETrack operations which is the record management system.  He has trained all staff about these matters. 

11. The General Manager of Spencer College, Kuldeep Singh Dudwal gave the following evidence to the Tribunal.  He stated that he has worked at Spencer College for close to three years and he is responsible for the management of both campuses as commercial enterprises.  He stated that he was present when the departmental officers attending the college and believes it is all an unfortunate miscommunication.  He did not hear the CEO say 50% teaching and 50% record management.  He stated that the CEO is by nature a very anxious person.

12. The General Manager stated that the applicant’s role is record manager and this is a big job as he responsible for managing the records of all students and this can be between 350 and 500 at any one time.  He is also responsible for training staff in the various systems relating to record management.  He is not a teacher of students; however if a teacher is away he may give direction to the students regarding what things they could be doing given that the teacher is absent.  He estimates that this would occur six times a year at the most.  He stated that they all fill in different roles on occasions, but not often.  For example he might sit at reception while the receptionist is having lunch. 

13. Section 352 of the Act sets out the procedures to be followed when an application for review is lodged with the Tribunal.  Section 352(2) refers to the Secretary providing the Tribunal with copies of the decision record which sets out the findings of fact made by the person who made the decision and refers to the evidence on which those findings were based.   Section 352(4) states:  The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.

14. The Tribunal has carefully examined the departmental file.  It does not contain any contemporaneous notes taken at the site visit; there is no recording of the interviews between the departmental officers and the CEO or of their interview with the staff member on reception; and there is no report from the site visit made by the two officers who undertook the site visit.

15. The Tribunal notes the Federal Magistrate’s Court decision in Talukder v Minister for Immigration and Citizenship [2009] FMCA 223; the Federal Court decision in Talukder v Minister for Immigration and Citizenship [2009] FCA 916; and the Federal Circuit Court’s decision in Sharma & Ors v Minister for Immigration and Multicultural Affairs and Citizenship & Anor [2013] FCCA 1280 in which the term “evidence” was considered. It is clear that “evidence” requires an assessment of the quality of the evidence being relied on by the Tribunal.

16. Sharma’s case, although it related to Public Interest Criterion 4020 and not condition 8107, is nonetheless relevant to the Tribunal’s task in assessing and weighing up the evidence before it.  The Court held that the Tribunal’s task was to:

    … make an assessment as to whether there is evidence that is sufficiently probative to lead to a conclusion that the information given was a bogus document or false or misleading in a material particular.[1]

    [1] Sharma & Ors v Minister for Immigration and Multicultural Affairs and Citizenship & Anor [2013] FCCA 1280, paragraph 25.

17. In the present matter the Tribunal notes that there is an absence of contemporaneous notes or recording of the site visit interviews on the departmental file.  The evidence to the Tribunal in support of the applicant’s case is that a miscommunication occurred during the site visit.  The applicant’s evidence includes statutory declarations from staff members and former and current students at Spencer College.  The oral evidence at the hearing was presented in a forthright, unhesitating and compelling manner. 

18. Whilst the Department appears to have some information that indicates that the applicant has gone outside his role as Records Manager and has been involved in teaching students, the way this information has been presented to the Tribunal, cannot reasonably be said to be “evidence” in accordance with the standard imposed by Talukder’s case and Sharma’s case. 

19. In the Tribunal’s view of the evidence before it, there may have been a miscommunication or misunderstanding between the Departmental officers and the two men interviewed at Spencer College.  Had a record of interview and contemporaneous notes of the site visit been provided by the department the Tribunal may have been able to reach a different conclusion.  However, the Tribunal is only able to make a decision on the basis of the evidence before it.  The Tribunal notes the applicant’s evidence that his work at the college includes direct contact with students, training staff and students in the use of the college’s computer systems, and site visits with students and a teacher to workplace training.  After assessing all the evidence the Tribunal is prepared to accept the applicant’s evidence that these activities all relate to the management of the student’s records. 

20. The Tribunal notes that the applicant has engaged directly with students when teachers have been absent.  The Tribunal’s view is that this may fall outside the role of Records Manager.  However in considering whether it is a breach of condition 8107 the Tribunal accepts the evidence that this occurred infrequently and that the nature of the applicant’s engagement with the students on these occasions did not involve teaching.  The Tribunal notes departmental policy in relation to condition 8107 which states that the condition is breached if the visa holder is working in an occupation that is not associated with an approved nomination.  The Tribunal accepts that the applicant’s involvement with students when teachers are absent does not amount to “working in an occupation that is not associated with the approved nomination”. In the Tribunal’s view the infrequent occurrence and the nature of the contact between the applicant and the students on these occasions is not sufficient to amount to a breach of condition 8107 and cancellation of the applicant’s view. 

21. While the Tribunal has some underlying doubt regarding the extent and nature of the applicant’s role at Spencer College, the Tribunal is unable to be satisfied on the evidence before it that the applicant was involved in teaching and marking student’s assessments.  The evidence submitted to the Tribunal in support of the applicant’s claim that he only works as a Records Manager and he does not do any teaching, is compelling.  After assessing all the evidence the Tribunal is unable to be satisfied that the ground for cancellation exists.  

22. 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

23. 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.

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

    Lesley Hunt
    Member