1605074 (Migration)

[2016] AATA 4125

1605074 (Migration) [2016] AATA 4125 (20 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AMRINDER SINGH BAJWA

CASE NUMBER:  1605074

DIBP REFERENCE(S):  BCC2015/2608426

MEMBER:Glen Cranwell

DATE:20 July 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 187 -  Regional Sponsored Migration Scheme visa.

Statement made on 20 July 2016 at 12:55pm

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 12 April 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 on the basis that the delegate was not satisfied that the applicant commenced employment within the 6 month period or had made a genuine effort to commence employment with the sponsor in the regional area. 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. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   RELEVANT LAW

5. The Regional Sponsored Migration Scheme is for employers in regional Australia to employ skilled people in positions unable to be filled from the local labour market. It is a requirement that the employer commits to employing the person for at least two years.

6. Under the Act, the Minister may cancel regional sponsored employment visas if the Minister is satisfied that the employment either does not commence or terminates within two years: s.137Q.

7. In the circumstances of this case, the relevant ground is ‘Employment does not commence’: s.137Q(1), which provides as follows:

   s. 137Q Cancellation of regional sponsored employment visas

   Employment does not commence

   (1)      The Minister may cancel a regional sponsored employment visa held by a person if:

   (a)   the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and

   (b)   the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.

8. A regional sponsored employment visa is defined for the purposes of s.137Q to be a visa 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 this definition: s.137Q(3).

9. The visa and period prescribed by the regulations for the purposes of s.137Q are set out in r.2.50AA(1). In this case, item 3 relevantly provides:

   For section 137Q of the Act, each item in the table sets out:

   (a)  a kind of visa that is a regional sponsored employment visa; and

   (b)  the period within which a holder of a visa of that kind must commence the employment referred to in the employer nomination.

   …

2 Subclass 187 (Regional Sponsored Migration Scheme) visa If the holder was in Australia on the date of grant of the visa, 6 months from the date of grant of the visa If the holder was not in Australia on the date of grant of the visa, 6 months from the date the holder first entered Australia as the holder of the visa

1. If satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy, as set out in the Departmental guidelines, Procedures Advice Manual (PAM3). The guidelines on s.137Q require the decision maker to consider all available evidence as well as any responses from the visa holder in order to determine whether there are grounds for cancellation and the reasons for not cancelling outweigh the reasons for cancelling. The factors to be taken into account include:

   ·the circumstances leading to the grounds for cancellation

   ·the visa holder's current and past behaviour in relation to the department, such as the truthfulness of statements made to officers or in applications under consideration by the department

   ·the links the visa holder may have made to the community. This can include the strength of family, social, business and other ties in Australia. Strong ties to regional Australia and continued employment in that area may also be given special consideration

   ·the length of any period of employment with the sponsor, including any previous employment with the sponsor whilst the visa holder was on a temporary visa

   ·the degree of hardship that may be caused to the visa holder and any members of their family unit. Note that Article 3 of the Convention on the Rights of the Child requires that the best interests of any relevant child (which is anyone less than 18 years old, in Australia) be treated as a primary consideration, regardless of the child's immigration status. If there are members of the family unit who would qualify as a relevant child and whose interests could seriously be affected by cancellation, or who themselves would be affected by consequential cancellation, delegates have an obligation to treat as a primary consideration the effect of cancellation on any such children.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Commencement within prescribed period and genuine effort to commence employment within the prescribed period: s.137Q(1)

2. The applicant was nominated for his Subclass 187 visa by DB Customs Mechanical Pty Ltd. This is the relevant employer nomination for the purposes of s.137Q(1)(a).

3. The applicant’s Subclass 187 visa was granted on 28 April 2014, which means the end of the 6 month period from visa grant was 18 October 2014.

4. The following submissions dated 15 July 2016 (together with attachments) were provided to the Tribunal:

   The Review Applicant was granted an RSMS visa on 28 April 2014. The Review Applicant's nominated employer is DB Customs Mechanical Pty Ltd (Nominator') and whose nomination was approved on 30 July 2014, as per the NOITCC by the DBP dated 1 March 2016. We would like to draw your attention to the fact that the delegated decision maker has erred in providing the appropriate date of the nomination grant in the NOITCC when assessing the application. Evidently, the nomination grant date could not possibly be after the visa grant.

   The Nominator has since been issued with a Notice of Application for Winding Up Order (Annexure 2) and a Notice of proposed deregistration (Annexure 3).

   Regulation 2.50AA(b) at Item 2 stipulates the period within which an RSMS visa holder must commence the employment referred to in the employer nomination as being six months from the date of grant of the visa. Accordingly, the Review Applicant was required to commence employment by 28 October 2014. The Review Applicant commenced employment on his RSMS visa on 28 April 2014 as he was already working with the Nominator while on a subclass 457 visa.

   Annexure 4 is a Statutory Declaration by the Review Applicant affirming that he had commenced employment with the Nominator on 28 April 2014. Therefore, the Review Applicant had commenced employment within the period prescribed by the Regulations,1 thereby satisfying s 137Q(1)(a) and (b) including that he made a genuine effort to commence employment within that period.

   In the Department's correspondence to the Review Applicant regarding the Notification of Cancellation dated 12 April 2016, the Delegate states that the Department's Sponsor Monitoring Unit (SMU) conducted three unannounced site visits on 31 July 2014, 5 September 2014 and 29 January 2015. The Delegate indicated in that correspondence that during those visits, the Officers did not meet nor see any evidence of the Review Applicant commencing employment with the sponsor or working for the sponsor.

   With regards to the first site visit conducted by the SMU on 31 July 2014, the Review Applicant was on annual leave from 30 July 2014 until 16 September 2014. Annexure 5 is a copy of the Review Applicant's annual leave application form. Accordingly, the Review Applicant was not on site during this initial site visit.

   During the second site visit conducted by the SMU on 5 September 2014, the Review Applicant was in India with his wife. Annexure 6 is a copy of the Review Applicant and his wife's passport evidencing immigration travel stamps. Evidently, the Review Applicant was not present during the site visit.

   On the third site visit conducted by the SMU on 29 January 2015, the Review Applicant was absent as a result of a medical condition he had at the time. Annexure 7 is a copy of the Review Applicant's Medical Certificate to that effect.

   As per regulation 2.50AA(b), we respectfully submit that that the site visits should not constitute grounds nor are they substantiated grounds for cancelling the Review Applicant's visa. The Review Applicant, according to Legislation, had six months from the date of the grant of his visa to commence employment. The Review Applicant commenced employment from the date of his RSMS visa grant. In addition, the Review Applicant has provided ample evidence in support of his absence for the site visits conducted.

   Annexure 8 are bank statements evidencing that the Review Applicant was in receipt of wages from the Nominator throughout the duration of his employment. The Review Applicant has provided tax returns at Annexure 9 evidencing his employment. Annexure 10 is a copy of the Review Applicant's Notice of Assessment.

   Furthermore, in the Notification of Cancellation dated 12 April 2016, the Delegate states that:

   "None of the 457 visa holders sponsored by the sponsor and interviewed during the three site visits and a number of telephone interviews have mentioned Mr Bajwa working for the sponsor."

   It cannot be ascertained from the Delegate's statement what discussions the SMU Officers had with the said 457 visa holders. Likewise, it is such an ambiguous statement and these dealings cannot be verified given that the Review Applicant's Freedom of Information (F01) file does not contain any file notes, call logs or recordings pertaining to any of the site visits conducted. The Review Applicant will be providing a Statutory Declaration from a former employee of the Nominator who was interviewed by SMU Officers during one of the site visits conducted. This Statutory Declaration will be provided for Member's consideration in due course.

5. After examining the evidence referred to in the above submission, the Tribunal accepts that the applicant commenced employment with DB Customs Mechanical on 20 June 2013 as the holder of a Subclass 457 visa, and was employed at the time of the grant of the Subclass 187 visa.  The Tribunal finds the applicant’s bank statements and taxation documentation to be persuasive.

6. The Tribunal notes that the delegate’s decision was primarily based on the absence of the applicant during 3 site visits on 31 July 2014, 5 September 2014 and 29 January 2015.  The Tribunal has checked the Department’s movement records, which confirm that the applicant was outside Australia between 11 August 2014 and 16 September 2014.  He has provided a medical certificate dated 29 January 2015, stating that he was unfit for work from 29 January 2015 to 4 February 2015.  He has also provided an annual leave application form for the period 31 July 2014 to 16 September 2014.  Given that the applicant has provided explanations for his absences on each of the dates of the site visits, the Tribunal places no weight on his absence during those site visits.

7. 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 does not arise.

8. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled. The Tribunal notes that it has not considered the ground of cancellation in s.137Q(2) as this was not relied on by the delegate.

   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.

   Glen Cranwell

   
   

   Member