1600270 (Migration)

[2016] AATA 3735

1600270 (Migration) [2016] AATA 3735 (11 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Navdeep Singh GILL
Ms Kuldeep Kaur Gill
Master Guritfak Gill

CASE NUMBER:  1600270

DIBP REFERENCE(S):  BCC2015/3603378

MEMBER:Christopher Smolicz

DATE:11 April 2016

PLACE OF DECISION:  Adelaide

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 other applicants.

Statement made on 11 April 2016 at 8:41am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 January 2016 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 contravened a condition of his visa by not working in the occupation listed in his approved nomination.

3. On 8 January 2016 the applicant applied to this Tribunal to review the decision. The applicant provided the Tribunal with a copy of the delegate’s decision record.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. On 24 February 2016 the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments. On 31 March 2016 the applicant emailed the Tribunal and advised that he was overseas and requested the Tribunal to contact him by telephone.  The applicant took part in a hearing by telephone on 4 April 2016.

6. 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. The Tribunal raised with the applicant the legal issues relevant to the jurisdiction of the second and third named applicants at the hearing.

7. 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

8. 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?

9. 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 the holder of the visa to only work in the occupation listed in the most recent approved nomination for the holder of the visa: 8107(3)(a)(i).

   Background

10. The applicant is a citizen of India. On 22 January 214 he was granted a Temporary Business Entry (Class UC) subclass 457 visa. The applicant’s nominator for the 457 visa was Metro City Cabs Pty Ltd (Metro City Cabs). Metro City Cabs operates a taxi business that trades as Suburban Taxi and Yellow Cabs. The most recent nomination by Metro City Cabs was approved on 28 November 2013 for the position of Transport Company Manager (ANZSCO 149413). ANZSCO lists the following duties for the postion:

    Organise and control the operations of an enterprise that operates a fleet of vehicles to transport goods and passengers. Registration or licencing may be required.

11. On 7 July 2015 the Department commenced monitoring Metro City Cabs. Business records from Suburban Taxi and Yellow Cabs obtained by the Department confirmed that the applicant had been working regular shifts as a taxi driver for Metro City Cabs. For example, between 1 July 2014 to 17 May 2015 the applicant drove a taxi for total of 2487 hours. His shifts included weekends, weekdays and were predominately undertaken during the day with occasional night shift work.

12. On 10 December 2015 the Department served the applicant with a Notice of Intention to Consider Cancelling his visa under s.116 of the Act. On 22 December 2015 the applicant provided a written response. The applicant denied working as a taxi driver and said he was employed as a manager at Metro City Cabs since March 2014. The applicant claimed that someone must have used his unique PIN number and drove a taxi using his details. The applicant provided his payslips and bank statement and superannuation statements as evidence that he was employed at Metro City Cabs.

13. The Department was also provided with correspondence from Suburban Transport Services Pty Ltd (STS). According to the correspondence SBS is a Centralised Booking Service which uses MT Data to log and manage jobs. MT Data is accessed by a driver by entering in their Driver ID and PIN. A driver ID is a numeric identifier being the same as the driver’s licence and taxi accreditation. SBS advise that a driver PIN is chosen by the driver. It’s the driver’s responsibility to keep their PIN confidential. Each time a driver logs into the MT Data they make a declaration that they are using their own Driver ID and PIN. SBS say the system is reliant on driver honesty and it is possible for another driver to fraudulently log on to the MT Data system using another person’s driver ID and PIN.

14. The delegate had regard to the payslips, banking and superannuation records. The delegate noted that the applicant’s payslips record regular deductions of $202.67 for superannuation from June 2014 to June 2015. However, the visa applicant’s superannuation statement does not record regular corresponding superannuation deposits by Metro City Cabs. The delegate noted that only on 23 September 2015 was one “member direct voluntary” payment of $5270 recorded. The delegate found the payment was made by the applicant and not the sponsoring employer. The delegate noted that the payment coincided with the Department’s investigations. The delegate found that it was likely the payment was a self-serving attempt to fabricate evidence and that the applicant was employed by the sponsor in the nominated position.

15. The delegate noted that fraud is widespread in relation to business visa sponsorship. The delegate noted that a common feature of immigration-related sponsorship fraud is a visa holder paying an employer to fraudulently sponsor them for a visa and the sponsor paying a portion of this money back to the visa holder and fraudulently representing these payments as salary payments and placed weight on the records provided by the applicant.

Tribunal hearing

1. The applicant said he was in the United States and has left his employer and has not obtained a new sponsor to enable him to return and work in Australia.

2. He initially travelled to Australia on a student visa for a better life. He commenced working for Metro City Cabs as a taxi driver in March 2009 and was a licenced taxi driver.

3. The Tribunal discussed with the applicant the grounds for cancelling his visa and the delegate’s concerns.

4. The applicant maintained that another driver had fraudulently obtained his PIN and used it to drive under his name.

5. The Tribunal noted that the PIN was a unique and secure number and asked how the other driver could obtain this confidential information. The applicant said that it was not uncommon for taxi drivers to obtain the information because they were often not licenced to drive in their own name.  The Tribunal does not accept that another driver was able to use the applicant’s personal details and drive a taxi full time for one year and not come to the applicant’s attention as the manager of Metro City Cabs.

6. The Tribunal asked the applicant if he knew the identity of the driver who he claims used his PIN. The applicant said he did not know the driver’s identity but it was another Indian taxi driver who has now returned to India. The Tribunal asked the applicant if he had reported the fraudulent use of his PIN to the Police and made a written complaint to the sponsoring employer. The applicant said that he had not written to his employer or reported the matter to the police. The Tribunal told the applicant it was surprised that he did not report the theft of his PIN given the serious ramifications of another drive fraudulently driving a taxi using his name and identification.

7. The Tribunal told the applicant it had concerns about the veracity of the payslips provided to the Department.  For example the date of pay appearing on the payslips does not match up with the date appearing in his bank statements and the superannuation contributions made by his employer do not appear to be genuine.

8. The Tribunal referred the applicant to the delegate’s concerns about the prevalence of fraud in business sponsorship applications. The applicant said that his sponsoring employer was “not a good person”. When asked to explain his evidence the applicant said his employer did not pay superannuation contributions and would not pay him on the dates appearing on the payslips. The applicant denied paying the sponsor money for the visa and maintained he was employed as a manager. The Tribunal has had regard to the inconsistencies in the applicant’s payslips and gives them little weight.

9. The Tribunal notes that while it may be possible for another driver to have theoretically used the applicant’s driver ID and PIN to work shifts as a taxi driver the Tribunal does not accept the applicant’s explanation as credible. The Tribunal found the applicant’s evidence vague and lacking in detail. The Tribunal notes that the PIN is a unique number that would only be known to the applicant. The applicant was not able to provide a satisfactory explanation of how another driver would have become aware of his PIN and used it for one year and not be detected. The Tribunal found it unusual that the applicant claims the driver who used his PIN has now returned to India but claims not to know his name or to have reported the matter to the police or Metro City Cabs.

10. The Tribunal finds that the applicant has worked for Metro City Cabs as a taxi driver since March 2009 and he continued work as a taxi driver after his nomination was approved for the position of Transport Company Manager. The Tribunal finds the applicant was employed by Metro City Cabs in the position of taxi driver and not in the nominated position of Transport Company Manager.

11. 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

12. 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’.

13. The Tribunal notes the applicant initially travelled to Australia in July 2008 as the holder of a student visa. He commenced working as a taxi driver soon after arriving in Australia and was sponsored by Metro City Cabs to work in the occupation of Transport Company Manger.

14. The Tribunal notes that the applicant’s 457 visa ceased on 24 January 2016. He has now departed Australia and no longer seeks to work for Metro City Cabs. The applicant said that he would like to work in Australia but conceded that he does not have a new sponsoring Australian employer or any work in Australia.

15. There is nothing before the Tribunal to suggest the cancellation would result in indefinite detention, other cancellations or a breach of international obligations. There is no evidence or submissions that the cancellation will impact on victims or family violence; or that it will lead to Australia breaching any of its international obligations.

16. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

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

    Christopher Smolicz
    Member