1601663 (Migration)

[2016] AATA 4150

1601663 (Migration) [2016] AATA 4150 (22 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maninder Singh

CASE NUMBER:  1601663

DIBP REFERENCE(S):  BCC2015/952229

MEMBER:Rania Skaros

DATE:22 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

Statement made on 22 July 2016 at 11:51am

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 11 February 2016 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.137Q as the delegate was not satisfied that the applicant had commenced the employment referred to in the employer nomination within the prescribed period and, after considering various matters, decided that the visa should be cancelled.

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

4. The applicant appeared before the Tribunal on 19 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ravinder Singh, the applicant’s brother, Ms Brook Darby, the applicant’s landlord in Albury and Mr Sarwan Singh, the applicant’s friend who resides in Albury.  

5. The applicant was represented in relation to the review by his registered migration agent.

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.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

8. 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.

9. The evidence before the Tribunal indicates that the applicant was granted a Regional Sponsored Employment visa, Subclass 187, on 7 March 2014 on the basis of a nomination for the position of Cook made by his nominating employer, Dhillon’s Pty Ltd, trading as Superb Indian Restaurant, located in Albury NSW.

10. According to information on the decision record, a copy of which was provided to the Tribunal, the Department received information from the nominating employer, Dhillon’s Pty Ltd, that the applicant never commenced work with the Company.

11. On 17 September 2015, the Department sent to the applicant a notice of intention to consider cancellation of his Subclass 187 visa under s.137Q(1) of the Migration Act. The notice set out the particulars of the ground for cancellation, which included information received from the nominating employer that the applicant did not commence work in the nominated position of Cook within the prescribed period, which in this case was 6 months from the grant of the Subclass 187 visa, as the applicant was in Australia at the time of the visa grant.

12. In response to the notice, the applicant’s representative provided submissions and documents, including the following:

    ·Boarding pass in the applicant’s name indicating he travelled from Sydney to Albury on 22 March 2014.

    ·Copy of advertisements for rental properties in Albury, indicating they were printed on 8 April 2014.

    ·Letters from ANZ bank dated 11 April 2014 and 2 May 2014 addressed to the applicant at an address in North Albury indicating that the bank had declined to approve the applicant’s applications for a credit card and personal loan.

    ·Letter from Ms Brooke Darby dated 17 September 2015, stating that the applicant resided at her property in North Albury, from 8 April 2014 to 4 June 2014 and that during that time she believes he was employed to work at the Indian restaurant on Wagga Road in Lavington and that he rarely got shifts and had to move to Sydney for support from friends and family. Also provided were hand-written rent receipts dated between 8 April 2014 and 13 May 2014.

    ·Email correspondence between the applicant and the nominating employer, Mr Harpinder Singh, dated in September 2014. The correspondence, in summary, indicated that the employer was enquiring about when the applicant would commence work and the applicant’s response indicated that the employer was corresponding with him for a purpose that he was not sure about and noted that he had already commenced work in April 2014 but had not been paid for the time he had worked and could report him to immigration for breach of the employment contract. The employer’s response indicates that Immigration would not believe him because he had a good history with Immigration.    

    ·Letter from the applicant’s brother, Mr Ravinder Singh, stating that his brother went to Albury on 7 April 2014 to work for the employer. He stated that the employer was not paying the applicant and that he had to regularly transfer funds to his brother for food and accommodation.  He stated that he personally spoke to Mr Harpinder Singh about the unpaid wages and that he had indicated the wages would be paid in a week or two.  He stated that he kept following up with his brother if he was receiving the wages which were never received. Mr Ravinder Singh stated that on a number of occasions he had to order pizza over the telephone using his credit card to be delivered to the applicant as he did not have sufficient funds to buy food. He said that on 1 June 2014 he deposited funds into the applicant’s bank account so he could purchase a train ticket back to Sydney as he could not survive financially in Albury because the employer was making him work for free.

    ·Letter from Bhupinder Singh stating that he saw the applicant in Albury when he was living there and that he went to his house on one or two occasions. He had met him at Coles in Lavington while he was buying groceries for the restaurant where he was employed.

    ·Letter from Manjit Singh stating that he ordered pizza for the applicant while he was living in Albury because he did not have any money.

    ·Letter from Baldev Malhi indicating that he loaned the applicant $10,000 due to financial hardship and that the applicant’s employer had not paid him.

13. In his statutory declaration, dated 15 October 2015, the applicant detailed his work and immigration history. He stated that he accepted an offer with the sponsoring employer, an Indian restaurant in Lavington, Albury, after negotiating a salary $42,000 per annum. He stated that he travelled to Lavington on 7 April 2014 and commenced work for the employer and organised accommodation. He claimed that the employer could not afford to pay his wages because the restaurant’s sales were low and the employer could not afford to pay his salary. He claimed that the employer suggested to him he take out a personal loan from the bank until the business picks up. He stated that the loan was declined and he was finding it difficult to survive. He stated that he did not have enough money to buy food and that his brother had to continually deposit funds into his account between 14 April and 26 May 2014.

14. On review, the Tribunal requested copies of the applicant’s bank account statements, which were provided.

15. Prior to the hearing the Tribunal received detailed submissions from the representative, together with a statutory declaration from the applicant, dated 7 July 2016, and supporting documents. In the statutory declaration, the applicant provided detailed information about his travel to Albury, his dealings with Mr Harpinder Singh whilst he was in Albury, the nature of his employment at the restaurant, his accommodation in Albury, which he indicated was 10 to 15 minutes’ walk from the restaurant and the financial difficulties he faced whilst living in Albury. The applicant stated that he could no longer afford to survive in Albury and had to return to Sydney where he secured work at a restaurant for three months. He stated that he did not want to make a complaint to Fair Work because the employer had told him that he would pay him and would get him back to Albury to work when the restaurant got busier. He said that he had not heard from the employer for a long time, until in late September 2014 when the employer asked him when he was going to start. He stated that because the employer had not paid him for the work already done he did not want to go back.

16. The supporting documents provided to the Tribunal included those already provided to the Department, as detailed above, as well as Facebook correspondence in May 2014 between Ms Brook Darby and the applicant about the late payment of rent and the applicant’s explanation to Ms Darby that his employer had not yet paid him, and Mr Ravinder Singh’s credit card statement indicating a purchase from Domino’s Pizza in Lavington on 31 May 2014 and Countrylink ticket on 1 June 2014.

17. At the hearing the Tribunal queried the applicant about how he came to be nominated by the nominating employer, his claims to have worked for the nominating employer, the nature of the employment and his residence in Albury. The Tribunal found the applicant’s evidence to be detailed, consistent and supported by the witness’ oral evidence and documentary evidence before the Tribunal. 

18. The Tribunal accepts that the applicant travelled to Albury on 22 March 2014 as indicated by the boarding pass. The applicant told the Tribunal that he travelled there for the day to meet with the employer and arrange accommodation. The applicant provided detailed evidence about how he made contact with Ms Brook Darby, which he indicated was through the Gumtree site, to arrange accommodation before his relocation to Albury. He indicated that he also added her to his Facebook and that they communicated through Facebook messages. The applicant gave evidence that he relocated to Albury with all his belongings on 7 April 2014 and that Mr Harpinder Singh came to pick him up from the country train station and dropped him off at Ms Darby’s home after taking him around Albury and showing him where his relatives also had businesses in the area.

19. The applicant gave evidence that he commenced work at the restaurant the following day, on 8 April 2014. He told the Tribunal that the restaurant was normally open for dinner and that his usual hours of work were from 5.00 pm to 10.00 pm 6 days a week, although sometimes he had to stay longer if he was asked to do the cleaning and washing up, and had to go earlier if there was a party which required preparation. In relation to the duties of his position, he stated it was varied and included buying produce, preparing food, making bread, assisting Mr Harpinder Singh with making curries because the guests were used to the taste, cleaning up and washing the dishes. The applicant told the Tribunal that after a week he started to ask Mr Harpinder Singh about his wages but was told that the business was not doing well and that he could not pay him. He promised to pay him when the business improved. The applicant gave evidence that Mr Harpinder Singh also had a cleaning contract and used to ask the applicant to work as a cleaner, which he did for a few days, but was also not paid for that work. The applicant gave evidence that he continued to work for the employer for some two months and that despite the employer’s promises that he would be paid, he was never paid any wages. He stated that he was being financially supported by his brother, who deposited money into his account for accommodation and food. The applicant gave evidence that other than travelling to Sydney for the Easter break in late April 2014 for about 4 days and for one day on 6 May to sit his pre-booked driving test, he had maintained his residence and employment in Albury from 7 April 2014 to 2 June 2014. The transactions on the applicant’s Commonwealth bank account statements support his claim to have resided in Albury for eight weeks.  The applicant gave evidence that he had to return to Sydney where his brother could provide accommodation and support because his brother could no longer afford to financially support his rent.    

20. The Tribunal also had the opportunity to take evidence from Ms Darby by telephone. Her evidence about the applicant’s residence at her property was consistent with the applicant’s evidence, although she could not recall exactly how many months the applicant had resided at the property, and noted that she had kept the receipts of rent received from him but she was not home at the time. Ms Darby gave evidence that the applicant travelled to live in Albury for work and that he was working at the Indian Restaurant on Wagga Road. She gave evidence that she had dropped him off at that location on a number of occasions. When asked if she knew what he worked as at the restaurant, she said he did the cooking and cleaning. In response to the Tribunal’s queries about the circumstances of the applicant’s employment, Ms Darby stated that she recalls the applicant really struggling financially and having a rough time with his employer.

21. The Tribunal took evidence from Mr Sarwan Singh, who resides in Albury and works as a taxi driver. Mr Sarwan Singh gave evidence that he has seen the applicant in Albury and that the applicant moved there for work. He said that he has seen the applicant at the restaurant on Wagga Road and that he had given the applicant a lift a few times. He and his wife had also seen the applicant at Coles a few times.

22. The Tribunal took evidence from the applicant’s brother, Mr Ravinder Singh, whose evidence was consistent with the applicant’s evidence and the documentary evidence, particularly the bank and credit card statements which showed that he had deposited funds into the applicant’s account whilst the applicant was living in Albury and that he used his credit card to order take-away food for the applicant so he could eat. Mr Ravinder Singh told the Tribunal that after the visa was approved the employer, whom he referred to as Harry, put pressure on his brother to go to Albury as quickly as possible, which he did. He said when the applicant got there he realised that the restaurant is not that busy. He said his brother was sponsored to work as a Chef for the restaurant and that the owner also made him do cleaning because he had a cleaning contract. He said that his brother was not paid for any of the work he did as a Chef or cleaner and that he had spoken to Harry on a number of occasions to at least pay for his brother’s accommodation and food, but after working for free for eight weeks the applicant was still not paid and he could no longer support his brother’s stay in Albury.

23. The Tribunal discussed with the applicant a number of its concerns. Firstly, it asked him why he did not make a complaint or report the employer to Fair Work, to which he responded that he waited for a while hoping that he would get paid the two months’ salary and that he may resume work. He also stated that he was concerned about what would happen to his visa. The Tribunal noted that according to the email correspondence between him and Mr Harpinder Singh, in September 2014, he was asked about commencing work for the employer. The applicant stated that he was not sure why the email was sent but thought the employer was up to something. He said that he had still not been paid two months’ salary and he believed that the employer wanted him to work for free again and did not trust him. The Tribunal asked the applicant if he had paid any money to the employer for the nomination for the purpose of securing a visa. The applicant insisted that he did not. He stated that he entered into the employment contract on the basis that he would be employed as a Chef. He said that the employer’s business was struggling and the employer thought that if he sponsored a qualified chef the business would grow. He said that the employer continued to operate the business because he had previously sponsored a family member and needed to keep the business operating for that purpose and wanted the business to grow by employing a qualified chef without having to pay any money. He stated that the employer had no money to invest in the business and was almost $7000 behind on the rent.

24. The Tribunal noted that the employment in the nomination is full time cook for Dhillon’s Pty Ltd, and that his description of his duties indicated that he undertook tasks of a kitchen-hand and cleaner and may not be considered the ‘employment referred to in the employer nomination’. The applicant stated that at times he started work at 11.00am to do preparation work for the restaurant and that when a function was being held he started early to prepare all the entrees. He said that there were some days when not many orders would come in but he still stayed at the restaurant and waited for orders come in.

25. The representative submitted that the applicant’s other work was in addition to his duties as a full time cook and that if the Tribunal was not satisfied that it was the relevant employment then the evidence nevertheless supports that he made a genuine effort to do so, particularly in light of the fact that the applicant continued to work without getting paid for two months.

26. The Tribunal has carefully considered all of the evidence before it, and for the reasons that follow, is satisfied that the applicant had commenced the relevant employment in the relevant period.

27. On the evidence before it the Tribunal finds that the employment referred to in the relevant employer nomination is that of the position of Cook with Dhillon’s Pty Ltd. The applicant’s visa was granted on 7 March 2014, and accordingly, the Tribunal finds that the relevant period, as specified, in this case is 7 September 2014, being 6 months from the date of the visa grant.

28. The Tribunal considers that the evidence as a whole supports the conclusion that the applicant travelled to Albury on 7 April 2014 for the purposes of his employment with Dhillon’s Pty Ltd. The evidence, which includes the applicant and his brother’s bank account transactions, the applicant’s own detailed evidence of the place of work, the employer’s circumstances, his residence in Albury and the duties of position,  in combination with the consistent oral evidence received from Ms Darby, Mr Sarwan Singh and the applicant’s brother, and the contemporaneous messages between Ms Darby and the applicant about the late payment of rent and the reasons, strongly support the applicant’s claim that he worked as a cook at the restaurant operated by Dhillon’s Pty Ltd on Wagga Road in Lavington, Albury, between 8 April 2014 and 1 June 2014. The Tribunal also considers the applicant’s claim to have not been paid for his work to be credible and consistent with the evidence as a whole. The Tribunal notes that the applicant had also undertaken other types of work, including cleaning and as a kitchen hand, but nonetheless accepts the submission that the duties associated with those roles were in addition to his duties as a cook, and does not detract from his claims to have worked as a full time cook for the nominating employer. 

1. In addressing the evidence and concerns raised in the decision record about the applicant’s employment, the Tribunal makes the following observations. 

2. The information on the Department’s file indicates that Director of the nominating business, Mr Harpinder Singh, told the Department that the applicant never commenced work and that the applicant was in Albury for just a few days and went back to Sydney. Other than a record of conversation and an organisation chart for Dhillon’s Pty Ltd, there is limited evidence on the Department’s file regarding the employer’s claim that the applicant had never commenced work. In any case, the Tribunal does not accept that evidence, because it is inconsistent with the all of the evidence before it, as detailed above, which indicates that the applicant was in Albury for a period of two months, and there is no evidence before the Tribunal to suggest that the applicant was in Albury for that period of time for any reason other than to work for the nominating employer.

3. Information on the Department’s file also indicates that the applicant was contacted by the Department on the same day and asked why he had not commenced work with the nominating employer, to which he responded that he had worked for the employer for three months and was not getting paid. Although the period of time he initially indicated to the Departmental officer was somewhat exaggerated, his evidence about having commenced employment with the nominating employer and not being paid was consistent, and was subsequently supported by the documentary and oral evidence provided to the Department and to the Tribunal on review.

4. The delegate was concerned that the applicant had not provided evidence of payslips or bank accounts to show that he was employed, and had not contacted the Department and did not make a complaint with Fair Work.

5. The applicant’s claim however is that he worked for the employer and was never paid, and as indicated above, the Tribunal accepts that he had commenced the relevant employment and was not paid a wage in accordance with the contract of employment by the employer, and as such it is understandable that he has not been able to provide evidence of payment of wages.

6. The Tribunal has also considered the concerns about the applicant not notifying the Department or reporting the employer to Fair Work. At the hearing, the applicant explained that he did not make a complaint because he was hoping to be paid his wages and was concerned about what would happen to his visa. The applicant’s explanation, particularly his concern that his visa may be cancelled, is consistent with observations noted in the recent report released in March 2016 on the Exploitation of Temporary Work Visa Holders that visa holders are reluctant to seek recourse under workplace laws for the apparent contravention by their employer of their employment rights because of fears about their visa status.  The Tribunal accepts the representative’s written submissions that the same reluctance and fear of having a visa cancelled is equally applicable to Subclass 187 visa holders who depend on their sponsoring employer to maintain their visa status in Australia, nevertheless the Tribunal considers the applicant’s failure to report the employer’s apparent breach and to notify the Department of the circumstances reflects poorly on him as he would have been fully aware of his obligation to live and work for the nominating employer in a regional area for a period of at least two years. While the applicant’s conduct in failing to inform the Department and report the employer to Fair Work is of concern to the Tribunal, it does not  of itself support a finding that the applicant has not commenced the relevant employment in the prescribed period.

7. Turning to the issue before the Tribunal, the Tribunal finds on the totality of the evidence before it that the applicant has commenced the employment referred to in the related employment nomination and is satisfied that the applicant has commenced that employment in the relevant period.

8. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q(1) exists. It follows that the power to cancel the applicant’s visa under s.137(Q)(1) does not arise.

   DECISION

9. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

   Rania Skaros

   
   

   Member