Aryal Bhatta (Migration)

[2023] AATA 3476

Aryal Bhatta (Migration) [2023] AATA 3476 (29 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Srijana Aryal Bhatta
Mr Subash Bhatta
Master Arij Bhatta

REPRESENTATIVE:  Mr Sanjeev Prasad Pandey (MARN: 1172267)

CASE NUMBER:  2300831

HOME AFFAIRS REFERENCE(S):          BCC2022/259856

MEMBER:SM Michael Cooke

DATE:29 August 2023

PLACE OF DECISION:  Sydney

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

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

Statement made on 29 August 2023 at 1:37pm

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa– Subclass 187 – applicant did not commence the employment in the position of Retail Buyer – ground for cancellation in s 137Q exists – one of the children is an Australian citizen – significant professional and social ties to the Australian community – best interests of the applicant’s children – decision under review set aside  

LEGISLATION
Migration Act 1958, ss 137, 348, 359
Migration Regulations 1994, Schedule 2

CASES
Wan v MIMA (2001) 107 FCR 133

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 Home Affairs on 23 January 2023 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s 137Q of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that while the first named applicant (the applicant) did work in the factory at Burchgrove Group Pty Ltd, she did not undertake work in the nominated occupation of Retail Buyer as indicated in the nomination application TRN EGOEZ1PIIL. Thus, she had not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations.

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. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 137T(1) of the Act. As no decision was involved in the visa cancellation under s 137T(1), the Tribunal has no jurisdiction with respect to the other applicants.

5. The applicant was sent an Invitation pursuant to s.359A as follows:

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MRS SRIJANA ARYAL BHATTA, MR SUBASH BHATTA AND MASTER ARIJ BHATTA

   I am writing on instruction from the Member conducting your review, in relation to the applications for review made by you in respect of decisions to cancel Subclass 187 -Regional Sponsored Migration Scheme visas.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·A Certificate and Notification regarding Disclosure of Certain Information to the Administrative Appeals Tribunal under s.375A of the Migration Act 1958.

   This information is relevant to the review because the “gist” of the confidential information is that it involves a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance.

   If we rely on this information in making our decision, the Member may decide it forms a reason or part of a reason to affirm the decision under review.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 22 March 2023. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by 22 March 2023, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 22 March 2023, and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

6. The applicants did not respond to the s.359A Invitation which included, additionally, a copy of the s.375A Non-Disclosure Certificate for comment.

7. As the applicants did not respond by the appropriate date, resultingly, the applicants have lost their right to a hearing. The Tribunal thus cancelled the hearing pursuant to s.359C of the Act. However, the Tribunal informed the applicant’s representative that it would accept a submission submitted to it from the parties before making the decision subsequently ‘on the papers’ pursuant to s.359C of the Act.

8. The applicant responded via her representative in a tendered submission as follows:

   Dear Sir/Madam,

   Re: Case No: 2300831, Mrs Srijana ARYAL BHATTA, Mr Subash BHATTA and Master Arij BHATTA

   Response to the Section 375A Certificate

   At the outset, we would like to express our gratitude to the presiding Member for providing us with additional time to submit response to the s375A certificate (“the certificate”) issued by the Delegate of the Minister for Home Affairs on 25 January 2023. Page 2 of 3

   We note that the certificate provides three reasons why the disclosure of emails would be contrary to the public interest.

   The letter that the Administrative Appeals Tribunal (AAT) sent to us on 8 March 2023 mentions one of those three reasons and states that:

   This information is relevant to the review because the “gist” of the confidential information is that it involves a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance.

   If we rely on this information in making our decision, the Member may decide it forms a reason or part of a reason to affirm the decision under review.

   Our client’s Regional Skilled Migration Scheme (Class RN Subclass 187) visa was cancelled under Section 137Q of the Migration Act 1958 (“the Act”). Section 137Q(1) provides that: Employment does not commence 137Q(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.

   On 22 December 2022, the Department of Home Affairs (“the Department”) issued a notice of proposed cancellation under section 137Q of the Act. The letter had outlined the background of the application and the reasons why the Department proposed that the applicant’s subclass 187 visa be cancelled. The delegate summarised it as follows:

   Therefore, I consider you did not commence the employment in the position of Retail Buyer, referred to in the relevant employer nomination TRN EGOEZ1PIIL within six months from the date of grant of the RSMS visa. It also appears that you did not make a genuine effort to commence that employment within that period. As such, I propose cancellation of your RSMS visa, under section 137Q(1) of the Act.

   Our clients are fully aware of the reasons why the Department cancelled their visas as they were outlined in the Department’s ‘notice of proposed cancellation’ letter issued on 22 December 2022 and subsequently in the decision record of visa cancellation issued on 23 January 2023.

   If the s375A certificate refers to the information/documents pertaining to the issues raised by the Department in the proposed cancellation letter (for example, the witness statement provided by the sole Director and Secretary of Burchgrove Group Pty Ltd dated 22 January 2021), we do not have any objection to the Department’s decision of not releasing those documents to us.

   However, if the file contains any other matters that were not previously discussed in the proposed cancellation letter issued on 22 December 2022, we submit that it would be unfair not to disclose those information/documents to our client.

   The tribunal, in its letter, has mentioned that “…if we rely on this information in making our decision, the Member may decide it forms a reason or part of a reason to affirm the decision under review.” If the Tribunal intends to rely on the information not disclosed to the applicant previously, it may lead to practical injustice to our client.

   Our client has already provided her response which were included in our submission to the Department. We request the tribunal to consider the factors that were included in the response to the Department and give adequate weights to them. We submit that the reasons not to cancel their permanent visa far outweigh the reasons why it should be cancelled. We therefore request the tribunal to revoke the cancellation decision.

   Our clients are happy to attend a hearing and are willing to respond to any questions that the tribunal may have.

9. The applicants were represented in relation to the review.

10. 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

11. 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 reg 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).

    Does the ground for cancellation exist (employment not commenced)

12. 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 reg 2.50AA.

    Findings and reasons:

    ·the employment referred to in the related employment nomination,

13. Departmental records indicate the nomination application (TRN EGOEZ1PIIL) was lodged on 01 August 2017 by Peppermint Grove Australia Pty Ltd (now known as Burchgrove Group Pty Ltd since 2018). The nominated occupation was ‘Retail Buyer’, and the proposed position was located in Bowral, New South Wales. On 25 January 2018, the applicant was granted a RSMS visa to work for Burchgrove Group Pty Ltd in the nominated occupation.

    ·whether the applicant commenced that employment in the relevant period and,

14. The applicant did commence work with the relevant employer but (according to the employer) not in the relevant employment with their nominated employer as outlined in the Departmental approval. The employer indicated in information given formally to the Department in relation to the nomination application (TRN EGOEZ1PIIL) that:

    ·The applicant was a legitimate employee at the organisation and worked at their factory.

    ·They were not aware of the nomination application (TRN EGOEZ1PIIL) for the position of Retail Buyer lodged by a migration agent.

    ·The position of Retail Buyer did not exist within the organisation.

    ·The employment contract dated 14 June 2017 in relation to the position of Retail Buyer was not authentic and they were unaware of the document - nor did they sign it.

    ·The document titled ‘Genuine need for the nominated position’ is bogus as they did not produce the document and some positions on the organisation chart do not exist, including the position of ‘Retail Buyer’.

    ·The document titled ‘Evidence of Equivalent Terms and Conditions of Employment’ contains an incorrect letterhead.

    ·The document titled ‘Labour Market Testing Report’ for the nominated position of ‘Retail Buyer’ is not a genuine document as they have never advertised for the position of ‘Retail Buyer’.

15. Furthermore, on her completed incoming passenger card dated 03 November 2018, shortly after the grant of the RSMS visa, the applicant had provided her occupation as ‘Warehouse Worker’ – her actual job at the company.

16. Based on the above information, it appears the applicant was employed to work in the factory at Burchgrove Group Pty Ltd but was not employed to work in the nominated occupation of ‘Retail Buyer’ as indicated in the nomination application (TRN EGOEZ1PIIL). Information provided to the delegate indicates that the position did not exist - according to the person responsible.

    ·if not, whether satisfied of genuine effort to commence that employment.

17. The Tribunal finds, from the above reliable information, that the applicant’s purpose of stay in Australia was not aligned with the purpose of the grant of the RSMS visa. The applicant did not commence the employment in the position of Retail Buyer (referred to in the relevant employer nomination (TRN EGOEZ1PIIL) within six months from the date of grant of the RSMS visa. Furthermore, the applicant did not make a genuine effort to commence that particular employment within that period as the position did not exist.

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 137Q exists. As the power to cancel under s 137Q is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.

    Should the visa be cancelled?

19. There are no matters specified in the Act or Regulations that must be considered in relation to the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual ‘PAM3: Act - Visa cancellation instructions - Regional sponsored employment visas’.

20. The applicant in her response to the Tribunal Invitation pursuant to s.359A has claimed their understanding was that as long as they worked for the employer, they ‘would not be breaching any conditions’. This was because the visa grant letter did not have any condition which required them to work in the nominated occupation. They stated they ‘genuinely believed’ that they ‘could work in any occupation as long as it was with the same employer’. In addition, their employment contract stated that the employer ‘may from time to time’ require them to perform other duties, functions and responsibilities within their capabilities. Further, they claimed they were unaware of what documents were submitted to the Department with the nomination application as the paperwork related to the nomination application was organized by the agent and the employer.

    Consideration of any relevant factors, including the departmental guidelines, and matters raised by the applicant. Departmental guidelines cover such matters as:

    ·if there are children whose interests would be affected by cancellation, or consequential cancellation under s 137T, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

21. The Tribunal notes from the decision record of the delegate (tendered by the applicant) that the applicants have two young children in Australia. The family is made up of a 9 year old son (who was born and has spent his entire life in Australia) as well a baby son who is an Australian citizen.

22. The applicant has claimed it is in the best interests of the children that they can continue to live with their parents and get ‘world class education’ in Australia. They maintain that their parents’ continuous presence is very crucial for their children’s well-being. Therefore, they claim that ‘not allowing the parents to live in Australia will have detrimental effects in the children’s well-being and it will not be in their best interests’.

23. The Tribunal notes that one of the children is an Australian citizen and gives this consideration heavy weight. His brother is totally Australian raised. This is due to the longevity of his stay in Australia and subsequent education here. He was a year off securing citizenship as a result of this fact until the visa cancellation.

24. The Tribunal gives this primary consideration maximum weight against cancellation.

    ·the circumstances leading to the grounds for cancellation

25. The grounds for cancellation arose when the applicant did not commence the specific employment referred to in the relevant employer nomination (‘Retail Buyer’), nor make a genuine effort to commence that specific employment, within the prescribed period after the grant of their RSMS visa, thus enlivening the ground for cancellation.

26. In the response to the Notice, the applicants claimed the circumstances in which the ground for cancellation arose were ‘beyond their control’ as they were not aware of the documents prepared and lodged by their employer and/or agent in relation to the nomination. They stated they always worked as per the instructions of their employer. The Tribunal is aware of this claim but also notes that the applicant provided a copy of the employment contract dated 14 June 2017 to the delegate which states her position as ‘Retail Buyer’. Therefore, the Tribunal finds she cannot claim she was unaware that the nomination application in relation to their RSMS visa was approved for the position of ‘Retail Buyer’.

27. To further confuse matters, the applicant has claimed that the circumstances in which the ground for cancellation arose were ‘beyond her control’ as they were not aware of the documents prepared and lodged by their employer and/or agent in relation to the nomination. Furthermore, they stated they always worked as per the instructions of their employer.

28. Patently, there has been fraud in the preparation and lodgement of the appropriate documentation by the agent. The applicant (for her part) has claimed ignorance of this malpractice and blamed her agent of the time. Yet, as is plain to see the visa fraud was sophisticated and elaborate - when seen in the light of the ample documentation presented to the Department to support the bogus application. The Tribunal does not accept, therefore, that she was oblivious to the presentation of the fraudulent application as claimed. The Tribunal rejects the notion that it was purely a creation of her agent which, through serendipity, happened to benefit the applicant.

29. The Tribunal gives this consideration heavy weight in favour of cancellation.

    ·the applicant’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

30. The applicant has engaged with the cancellation by responding to the Notice and, on review, to Tribunal correspondence. The Tribunal is aware that she did correctly indicate the true nature of her employment, it seems, as a ‘Warehouse worker’ on the incoming passenger card she presented on 3 November 2018. She also has no prior bad history with the Department and has previously held three Student visas.

1. The Tribunal gives this consideration some positive weight against cancelling the visa.

   ·the links to the community the applicant may have. 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

2. Information available to the Department indicates that the applicant has been residing in Australia since 2011 while her spouse has been living in Australia since 2007. They have an Australian citizen child and another child who was born in Australia in 2014. The applicant’s spouse and elder child have a pending Australian Citizenship application before the Department.

3. In the response to the Notice, the applicant has insisted that the family has settled in Australia and consider Australia as their home. In particular, they have stated that they have purchased a house in 2020 and are paying a mortgage for the property. On the evidence before it, the Tribunal accepts this claim.

4. The Tribunal gives this consideration some positive weight against cancellation.

   ·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

5. The applicant worked for the sponsor for two years until securing the (now cancelled) visa - the subject of this review.

6. The Tribunal gives this consideration neutral weight for or against cancellation.

   ·the degree of hardship that may be caused to the visa holder and any members of their family unit

7. The applicant submitted that she has been working as an Assistant Nurse at Wesley Rayward Aged Care Facility while her spouse has been working as a Cleaner at MKD Facility Services. They have indicated that one of their children was born in Australia as an Australian citizen while the other ‘has always been a resident of Australia and will be an Australian citizen next year once he turns ten’. The Tribunal observes from the decision record that her son was born in Westmead, Sydney on 5 March 2014. As such, they have both stated that a decision to cancel their visa would cause significant hardship to them and their family members because she and her spouse would not be able to work to pay for the mortgage and their children will have to live in Australia with ‘no parents and no home’.

8. The Tribunal accepts (from the longevity of their stay) that the applicant and her family members have formed significant professional and social ties to the Australian community. In such a situation any visa cancellation would prevent them from maintaining community ties which would cause them emotional hardship. Furthermore, the applicant and her spouse would cease to have permission to reside and work in Australia, which would cause them significant financial hardship in view of their mortgage.

9. The Tribunal acknowledges that the applicant’s spouse and elder child would no longer be eligible to become Australian citizens as their visas would be cancelled as a consequential cancellation under s137T of the Act.

10. If the visa were cancelled, the applicant would become an unlawful non-citizen and be liable for detention under section 189 and removal under section 198 of the Act if she did not voluntarily depart Australia.

11. The applicant would also be affected by section 48 of the Act, which would cause her family members to have limited options if applying for further visas while in Australia. Public Interest Criterion 4013 may prevent them from being granted particular temporary visas for a specific period. This would cause them further personal hardship.

12. The Tribunal gives these considerations overall significant weight against cancellation.

    ·any other relevant matters.

13. The circumstances of this case are not such that cancellation of the applicant’s visa would lead to removal in breach of Australia’s non-refoulement obligations.

14. The Tribunal, therefore, gives this consideration neutral weight for or against visa cancellation.

15. The Tribunal is cognizant of the damage to the Australian visa system of fraudulent visa practices. Nevertheless, the primary consideration before it is required to be the best interests of the applicant’s children.

16. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

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

    Michael Cooke

    
    

    Senior Member