Anguralia (Migration)

[2022] AATA 2568

Anguralia (Migration) [2022] AATA 2568 (29 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pankaj Kumar Anguralia

REPRESENTATIVE:  Mr Ashish Sethi

CASE NUMBER:  2004855

HOME AFFAIRS REFERENCE(S):         BCC2019/1081824

MEMBER:L. Hawas

DATE:29 April 2022

PLACE OF DECISION:  Melbourne

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 29 April 2022 at 5:43 pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – employment terminated within 2 years – genuine effort to engage in the employment – demotion – pay reduction – increased workload – mistreatment – contemporaneous communication with migration agent – employment history – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 137Q

Migration Regulations 1994 (Cth), r 2.50AA

CASES
Drake v MIEA (1979) 24 ALR 577
Re Drake and MIEA (No.2) (1979) 2 ALD 634

STATEMENT OF DECISION AND REASONS

Introduction

1. The applicant is a 35-year-old man from India. He first came to Australia in September 2006 on a student visa. While in Australia, the applicant studied for and obtained a series of qualifications in hospitality and commercial cookery. On 5 October 2015, the applicant was granted a 457 visa for four years on the nomination of a restaurant business in Perth. His approved position with his nominating employer was as a cook. While on his 457 visa, the applicant moved to Launceston in January 2017 and effectively transferred the sponsorship of his 457 visa to a restaurant business in that town for whom the applicant continued to work as a cook. On 25 October 2018, on the sponsorship of the new owner of the same Launceston restaurant at which the applicant had always worked, the applicant was granted a Subclass 187 – Regional Sponsorship Scheme Visa. The applicant’s sponsoring employer terminated his employment on 23 January 2019.

2. By written decision dated 6 March 2020, a delegate of the Minister for the Department of Home Affairs cancelled the applicant’s visa under s. 137Q(2) of the Migration Act 1958 (Act). The delegate found that the applicant’s employment with his sponsoring employer terminated within two years of the day upon which he commenced employment. The delegate was not satisfied that the applicant had made a genuine effort to be engaged with his employment for the necessary two-year period. After considering the proper exercise of the discretion to cancel the applicant’s visa, the delegate found that the circumstances before the delegate favoured cancelling the applicant’s visa and the delegate decided to cancel.

3. The applicant has now applied to this Tribunal for a review of that decision. The applicant gave the Tribunal a copy of the delegate’s decision at the time he applied for this review.

4. Accordingly, in this review, the Tribunal must decide whether the ground for cancelling the applicant’s visa is made out, and if so, whether the visa should be cancelled.  

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

Procedural matters

1. The applicant was represented in this review by a registered migration agent. The representative attended the Tribunal hearing.

2. Before the hearing, the applicant’s representative sent the Tribunal detailed written submissions with a bundle of supporting documents. After the hearing, the applicant sent the Tribunal further submissions and various other documents supporting his position. The Tribunal has considered all those documents in this review.

The relevant chronology

1. The evidence the applicant gave at the hearing and the documents he submitted to the Tribunal throughout this review reveal the following relevant facts:

   (a)The applicant first came to Australia on 19 September 2006 on a 572 student visa;

   (b)While in Australia as a student the applicant obtained a Certificate III in Hospitality – Commercial Cookery and a Diploma of Hospitality Management. Subsequently, the applicant obtained a positive skills assessments from Trades Recognition Australia as a cook and a chef;

   (c)On 5 October 2015, the applicant was granted a 457 visa for four years. The applicant’s sponsoring employer operated an Indian café and restaurant in Perth and employed the applicant in the approved position of a cook for the purpose of his 457 visa;

   (d)In January 2017, the applicant moved to Launceston to work at an Indian restaurant in that town (Launceston Restaurant). That employer applied to nominate the applicant for a 457 visa and the nomination was approved on 31 January 2017. The applicant’s approved position with that employer was as a chef. By that process, the applicant effectively transferred the sponsorship of his 457 to the owner of the Launceston Restaurant;

   (e)In February 2017, the applicant’s employer sold the Launceston Restaurant. It appears that the applicant ceased working at the Launceston Restaurant – temporarily as it turned out – shortly after this time to avoid breaching the conditions of his 457 visa;

   (f)On 30 May 2017, the applicant signed an employment contract with the new owner of the Launceston Restaurant. The term of the contract is expressed as commencing as soon as possible after the grant of the RSMS visa;

   (g)On 13 June 2017, the new owner of the Launceston Restaurant applied to nominate him for a 187 visa in the position of chef. On 19 July 2017, the applicant asked the department to cancel his 457 visa and applied for a bridging visa with work rights so that he could lawfully work for his new nominating employer whilst he was waiting for his 187 visa application to be determined. The department subsequently cancelled the applicant’s 457 visa and issued to him a series of bridging visa Es with work rights, the first of which was issued on 17 December 2017. From that date, the applicant worked for his nominating employer full time as a chef at the Launceston Restaurant under those bridging visas;

   (h)The application to nominate the applicant for his 187 visa was approved on 25 October 2018 and he was granted his 187 visa on that date;

   (i)The applicant’s employer terminated the applicant’s employment by written notice dated 23 January 2019, which gave the applicant two weeks notice of termination;

   (j)Subsequently, the department issued to the applicant a notice of intention to consider cancellation of his 187 visa dated 24 January 2020. The applicant responded to the notice by letter dated 21 February 2020;

   (k)The delegate cancelled the applicant’s visa on 6 March 2020;

   (l)Between September 2019 and February 2020, the applicant worked full time as a cook/chef in a busy café in Launceston;

   (m)From about December 2020, the applicant has operated his own Indian restaurant in Launceston with a colleague. The applicant continues to operate that restaurant. They operate the restaurant in effective partnership through a company. The restaurant has been successful, and the applicant wants to continue operating it in the longer term; and

   (n)The applicant has settled in Launceston and proposes to remain there in the longer term.

The relevant law

1. Section 137Q(2) of the Act provides:

   Employment terminates within 2 years

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

   (a)the Minister is satisfied that:

   (i)the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and

   (ii)the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment; and

   (b)the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.

2. ‘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 (Regulations) include 187 visas.

3. Regulation 250AA(1) of the Regulations provides that the period within which the holder of a 187 visa must commence the employment referred to in the employer nomination for the purpose of s. 137Q of the Act, if the visa holder was in Australia on the date of the visa grant, is six months of the date of the grant.          

4. In considering whether for the purpose of s. 137Q(2)(b) the visa holder has made a genuine effort to be engaged in the relevant employment for the necessary period, and for the purpose of cancelling a visa, the Tribunal will ordinarily apply lawful government policy unless there are cogent reasons against the application of policy: Drake v MIEA (1979) 24 ALR 577 per Bowen CJ & Deane J at 590; Re Drake and MIEA (No.2) (1979) 2 ALD 634 per Brennan J at 645.

5. The Department’s Procedures Advice Manual ‘PAM3: Act - Visa cancellation instructions - regional sponsored employment visas’ includes a section on the cancellation of regional sponsored employment visas includes a section on the cancellation of visas under s. 137Q of the Act. The relevant section of those policy guidelines provides, inter alia:

   (a)The purpose of the cancellation power at s. 137Q is to safeguard against any potential misuse of the regional sponsored migration scheme and discourage non-citizens who do not genuinely intend to settle in regional or rural Australia;

   (b)For the cancellation to occur, the delegate must be satisfied that the visa holder did not make a genuine effort to commence employment or to complete the required two-year employment period;

   (c)In assessing whether the visa holder has made a genuine effort (to complete the required two-year employment period), the factors a delegate may need to consider include:

   (i)The visa holder’s reasons and/or the circumstances leading to the failure to complete the two-year employment period (including any family or personal considerations);

   (ii)In the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment and the explanations given by the employer and the visa holder for the termination;

   (iii)Under policy, periods of more than 12 months may generally be accepted as representing a genuine effort. However, a visa holder can be found to have made a genuine effort if employed for under 12 months. Officers must consider the individual merits of each case when determining whether there has been a genuine effort; and

   (iv)Any other matter which is relevant to the commencement or cessation of employment;

   (d)The 137Q cancellation power is unlikely to be used where a visa holder fails to complete the two-year employment period because of a situation beyond the visa holder’s control;

   (e)Even if the delegate determines that grounds for cancellation do exist, there may be factors that should be considered when assessing whether to exercise the discretion to cancel the visa under s. 137Q of the Act, including:

   (i)The circumstances leading to the grounds for cancellation;

   (ii)The links to the community the visa holder may have made. 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; and

   (iii)The length of any period of employment with the sponsor, including any previous employment with the sponsor whilst the visa holder was on temporary visa.

6. Although the Tribunal is not bound to apply the department policy considerations in PAM 3 as set out in paragraph 13 above, the Tribunal considers those matters to be relevant to this review and should be applied.

The employment referred to in the applicant’s employer nomination and the applicant’s commencement of that employment

1. On the evidence before the Tribunal, the applicant’s employment referred to in the relevant employer nomination for the purposes of ss. 137Q(2)(a)(i) and (ii) of the Act was that described in the written employment contract the applicant put before the Tribunal as referred to in paragraph 8(f) above. That contract was expressed to commence as soon as possible after the grant of the RSMS visa. Plainly, the applicant and his nominating employer entered into the contract on 30 May 2017 in contemplation of the employer subsequently applying to nominate the applicant for a 187 visa (which it did on 13 June 2017). The applicant continued to work for his nominating employer after 25 October 2018 when the applicant was granted his 187 visa. Accordingly, on about that date, the term of the applicant’s employment contract commenced, and the applicant commenced his employment referred to in the employer nomination.

2. As the applicant’s employment commenced on 25 October 2018 and was terminated after the expiry of the two week notice period, which commenced on 23 January 2019, the period of the applicant’s employment was for about three months – well below the required employment period of two years. Further, that is below the 12-month period that PAM 3 identifies as a guide for what may be generally accepted as representing a genuine effort to be engaged in the employment as set out in paragraph 13(c)(iii) above.

3. In his submissions to the Tribunal, the applicant’s representative argued that the relevant period of the applicant’s employment subsisted for about 14 months between about 17 December 2017, when the applicant first commenced full time work for his nominating employer at the Launceston Restaurant, and early February 2019 when the applicant’s employment was terminated. The representative submitted that the Tribunal should take that as the period of the applicant’s employment when considering whether the applicant made a genuine effort to be engaged in his employment for the required two-year period.

4. That submission cannot be sustained. As stated in paragraph 15 above, the employment referred to in the applicant’s employer nomination here is that described in the employment contract the applicant put before the Tribunal and not earlier employment completed pursuant to some other arrangement between the applicant and his sponsoring employer. True it is that the applicant was employed full time by his sponsoring employer as a chef continuously from about 17 December 2017 to early February 2019, which period straddled that before the applicant was granted his 187 visa on 25 October 2018 and the period after. But the applicant’s employment before he was granted his 187 visa was different employment to that after his visa grant. The employment before the applicant’s visa grant was pursuant to some verbal or informal express arrangement between the applicant and his nominating employer, or employment that can be inferred from the parties’ conduct. The employment after the applicant was granted his 187 visa was that described in the written employment contract as expressly relating to the grant of the visa, which employment commenced shortly after the visa grant.

5. But that is not to say that the applicant’s continuous full-time employment with his nominating employer from about 17 December 2017 is irrelevant and should be disregarded when considering whether the applicant made a genuine effort to be engaged in the relevant employment for the purpose of s. 137Q(2)(b) of the Act. As set out in paragraph 13(c)(iii) above, PAM 3 also provides that the circumstances of each case should be considered to determine whether the visa holder made a genuine effort even where the period of employment lasted for less than 12 months. In the circumstances of this case, the Tribunal considers the applicant’s total period of full-time employment with his nominating employer at the Launceston Restaurant to be a relevant contextual circumstance and should be considered with the other circumstances. That is dealt with below.

Did the applicant make a genuine effort to be engaged in the relevant employment for two years?

1. The evidence before the Tribunal relevant to the circumstances in which the applicant ceased employment at the Launceston Restaurant in early February 2019 is as follows:

   (a)The applicant worked full time for his nominating employer at the Launceston Restaurant from about 17 December 2017 without incident (or if there were problems there is no evidence of that before the Tribunal, whether direct or circumstantial). This changed shortly after the applicant was granted his 187 visa on 25 October 2018;

   (b)The applicant maintains that shortly after the grant of his 187 visa, his employer’s attitude toward him changed and the employer began to bully and disrespect him. The applicant stated that his employer’s behaviour was part of a deliberate attempt to replace him with a part time chef as the Launceston Restaurant suffered a downturn and his employer sought to reduce its wages bill;

   (c)In support of his claim, the applicant produced a letter dated 10 January 2019, which he said his employer presented to him on 7 January 2019, headed Notice to cease employment. The letter was signed by the applicant’s employer but not by the applicant, although the letter contained provision for the applicant to sign. The letter provided that the parties had agreed amicably that the applicant’s employment would cease on 24 January 2019 due to unforeseen circumstances. The letter provided that the applicant had made a valuable contribution during his employment, that it had been a pleasure to employ the applicant, and the employer would be happy to recommend the applicant to another employer. The applicant said that his employer presented the letter to him and asked him to sign it as part of an attempt to get rid of him. The applicant refused to sign the letter;

   (d)The applicant said that he refused to sign the letter because he knew that ceasing his employment so quickly would jeopardise his visa. At that point, the applicant’s employer told the applicant that he could remain only if he accepted a lesser role of kitchen and general hand and accept lower pay. The applicant said he had no choice but to accept because he was desperate to keep his employment. The applicant’s reduction in pay at about this time was verified by the applicant’s payslips that he gave the Tribunal. The applicant said that his employer also required him to work longer hours and did not always pay him for the increased hours;

   (e)The termination letter dated 23 January 2019 under which the applicant’s employer unilaterally terminated his employment painted a different picture of the relationship with the applicant after his 187 visa was granted on 25 October 2018. The letter provides:

   (i)The employer had no option but to give the applicant two weeks notice of the termination of his employment;

   (ii)Once the applicant was granted his 187 visa his attitude changed almost instantly. He began disobeying instructions, disrespecting other employees, and generally displayed a poor attitude;

   (iii)A few weeks before termination, the applicant told his employer that he wished to resign. He sought his employer’s cooperation to frame the ceasing of his employment as due to unforeseen circumstances to avoid jeopardising his visa (hence the letter of 10 January 2019);

   (iv)After obtaining legal advice, the applicant changed his mind and told his employer that he could not leave his employment as it would jeopardise his visa. The applicant’s attitude improved temporarily before deteriorating again;

   (v)At this point, the employer decided to replace the applicant but offered him a lesser role of kitchen hand so as not to jeopardise his visa;

   (vi)But as the applicant’s attitude did not improve and he obviously wanted to leave but was staying only for the purpose of his visa, the employer had no option but to terminate the applicant’s employment;      

   (f)The contemporaneous evidence before the Tribunal reveals that when the applicant’s relationship with his employer began to deteriorate, and before his employment was terminated, the applicant sought formal advice about his predicament on several occasions. On 12 November 2018, about three weeks after the applicant was granted his 187 visa, he contacted a migration agent by email and stated:

   I am wondering what’s my obligation what happen if my employer find new guy for work? which he is finding. I am very stressed about my pr and my citizen application will be cancelled or refused?

   ………

   My situation is very genuine. I am putting all my genuine effort to keep my job safe but me and my employer we have already so much difference and its on peak? He don’t want to see my work all he wants……… and work long long hours.       

   (g)The applicant received written advice from his migration agent in response to the effect that he should remain employed with his nominating employer for two years to avoid the risk of his visa being cancelled. If that was not possible, the applicant should remain employed for as long as possible so he could make out that he made a genuine effort to be engaged in his employment if that ever became necessary. Leaving his employment so quickly after his visa was granted would jeopardise his visa;

   (h)On 7 January 2019 the applicant sent a further email to his migration agent in which he stated:

   My situation is very tense owner hired another casual chef and offered me to do kitchen hand job he wanna give me termination letter.

   As I got my 187 visa 26^th of October what should I do? I am so stressed and depressed feeling like my visa will be cancelled as I got my permanent residency after 13 year. I came in 2006 in Australia.

   (i)Again, the migration agent advised the applicant to remain employed with is nominating employer for as long as possible; and

   (j)On 14 February 2019, the applicant called the Fair Work Ombudsman and had a lengthy conversation with the office. The applicant submitted to the Tribunal his phone records, which made that out. He said he took advice from the Ombudsman on his rights given he had recently been terminated from his employment. The applicant said that he did not proceed with any claim against his former employer as he did not want to antagonise the employer in the hope that his visa may not be cancelled.

1. On that evidence, one of two things occurred after the applicant was granted his 187 visa on 25 October 2018. On the applicant’s version of events, the applicant’s employer began taking advantage of him knowing that he was reliant on his employment continuing for two years to avoid his 187 visa being jeopardised. The applicant maintains that his employer demoted him, reduced his pay, increased his workload, and generally mistreated him. When the applicant protested and refused to co-operate with his employer’s attempt to force the applicant to leave voluntarily, the applicant’s employer unilaterally terminated him. To the contrary, the applicant’s employer maintains that after the applicant obtained his 187 visa and secured the permanent visa he had sought, his attitude deteriorated. He became rude, disrespected other employees, and he began to refuse to undertake his usual work. As the applicant wanted to leave, and his employer concluded it would be better off without the applicant, the employer initially co-operated with the applicant to make out that he was leaving due to circumstances beyond his control in the hope the applicant would just go. When the applicant changed his mind and insisted on remaining without a commensurate improvement in his attitude, the employer just terminated the applicant. Both versions have a ring of truth about them and both have inconsistencies when considered with all the circumstances and the documentary evidence before the Tribunal, including text message exchanges between the applicant and his employer at the time.

2. The Tribunal’s task in this review is not so much to prefer one version of events over the other and or make findings on who was responsible for the applicant’s employment failing so quickly after the applicant was granted his 187 visa. In any event, it is not possible to make such findings with any confidence because the Tribunal has not heard from the applicant’s employer or has not had the benefit of proper submissions from the department about the employer’s position. The Tribunal has ascertained the employer’s position only from the 10 January and 23 January 2019 termination letters. The Tribunal’s primary task in this review is to decide whether, on all the evidence before it, the applicant made a genuine effort to be engaged in his employment with his sponsoring employer for two years from the time that employment commenced, being about 25 October 2018.

3. On the evidence before the Tribunal, and on balance after considering the perspective of the applicant’s employer, the Tribunal is satisfied that the applicant made a genuine effort to be engaged in his employment with his sponsoring employer for two years from the time his employment commenced for the purpose of s. 137Q(2)(b) of the Act. The Tribunal has arrived at that conclusion based primarily on the following matters:

   (a)The applicant is a competent chef and for the most part a satisfactory employee. The owner of the Launceston Restaurant was prepared to nominate him for a 187 visa. The applicant worked for his nominating employer without incident from December 2017 to the date of his visa grant on 25 October 2018. The applicant performed satisfactorily during this time because the employer proceeded with the nomination application until its conclusion. Further, the applicant’s employer stated effectively in its 23 January 2019 termination letter that the applicant’s satisfactory performance before his 187 visa grant only became unsatisfactory afterwards;

   (b)On the evidence, the first sign of trouble between the applicant and his employer emerged on 12 November 2018 when the applicant wrote to his migration agent as set out in paragraph 20(f) above. In that email, the applicant stated that he was worried about his employer looking for another chef and making him work very long hours. He stated that he was making a genuine effort to stay with his employer but too many differences had emerged. On its face, that contemporaneous communication was of an employee who genuinely wanted to remain with his employer, not one who was looking to contrive a pretence to leave. That is reinforced by the applicant’s further email to his migration agent on 7 January 2019 as set out in paragraph 20(g) above. The consistent advice the applicant received from his migration agent was that he must remain employed with his nominating employer for as long as he could so he could demonstrate that he had genuinely engaged with his employment. Although the applicant may have contemplated leaving his employer, which explains partly at least why he sought advice, the advice he received reinforced the applicant in what he was telling his migration agent – that he wanted to and should engage with his employment for two years or as long as possible; and

   (c)Given the applicant had worked satisfactorily at the Launceston Restaurant for his nominating employer for nearly a year before his 187 visa was granted, there was no apparent reason why the applicant could not continue in the same vein after his visa was granted. The applicant expressed the desire to his migration agent in late 2018 and early 2019 to continue with his nominating employer, which was reinforced by the advice the applicant received. That the applicant was not able then to restore the relationship with his nominating employer to what it was before the visa grant is difficult to explain. The applicant’s contemporaneous communications with his migration agent do, however, tend to support the applicant’s evidence that his employer’s attitude toward him changed for the worse after he obtained his 187 visa. Although the precise reason for the employer’s change in attitude to the applicant is not revealed (it may well have been because of provocation by the applicant), it is difficult to reconcile the applicant’s contemporaneous communications with his migration agent in late 2018 and early 2019 with an employee who was deliberately provoking his employer or not cooperating with a view to leaving prematurely.

4. Accordingly, on balance, the Tribunal is not satisfied that the ground for cancelling the applicant’s 187 visa under s. 137Q(2) of the Act has been engaged. It follows that the power to cancel the applicant’s visa does not arise.

The Discretion

1. Even if the Tribunal is wrong in that conclusion and the power to cancel the applicant’s 187 visa was enlivened under s. 137Q(2) of the Act, on the evidence before it, the Tribunal would not have cancelled the applicant’s visa. It would have given substantial weight against cancelling the applicant’s visa to the following matters, which outweigh the matters favouring cancellation:

   (a)The applicant was employed full time as a chef by his nominating employer at the Launceston Restaurant for about a year before his 187 visa granted on 25 October 2018 (PAM 3 as set out in paragraph 13(e)(iii) above);

   (b)After the applicant’s employment was terminated, he located work in a café in Launceston where he worked until about around the middle of 2020. That is consistent with purpose of a 187 visa – settlement in a regional area (PAM 3 as set out in paragraph 13(a) above);

   (c)In September 2020, the applicant opened a restaurant in Launceston in effective partnership with a colleague. He is still operating the restaurant. The applicant has submitted to the Tribunal the latest BAS return the applicant has completed in relation to his restaurant. The return reveals the restaurant is operating successfully. That is consistent with the purpose of a 187 visa – also settlement in a regional area (PAM 3 as set out in paragraph 13(a) above);

   (d)The applicant has lived in Launceston since January 2017 and is settled there. He wishes to stay there long-term operating his restaurant. That is consistent with the purpose of a 187 visa – also settlement in a regional area (PAM 3 as set out in paragraph 13(a) above);

   (e)The matters set out above reveal that the applicant has not sought to misuse the regional sponsored migration scheme by seeking to settle in an area that is not a part of rural or regional Australia (PAM 3 as set out in paragraph 13(a) above); and

   (f)The applicant has made substantial business connections in Launceston, primarily his business partner (PAM 3 as set out in paragraph 13(e)(ii) above).     

Decision

1. 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.

   L. Hawas
   Senior Member