AZAD (Migration)

[2017] AATA 2526

AZAD (Migration) [2017] AATA 2526 (8 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD TANVIR AZAD

CASE NUMBER:  1620646

DIBP REFERENCE(S):  BCC2016/3120858

MEMBER:R. Skaros

DATE:8 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 08 August 2017 at 9:23am

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Applicant employed other than by his approved sponsor – Departmental site visit to employer – No applicant admission to working for the employer – Possibility of payment in cash

LEGISLATION

Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 November 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with paragraph 8107(3)(a) of condition 8107. 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 appeared before the Tribunal on 20 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Naila Nejhum, the applicant’s spouse, and from the applicant’s former employer, Mr Angus Abrahams, by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. Of relevance is paragraph 8107(3)(a)(ii) which requires the applicant to work only for the sponsor that last nominated him or an associated entity.

8. The applicant was granted a Subclass 457 visa on the basis of a nomination made by Mustaque Hassan. The nomination was approved in March 2015 and, at the time of the delegate’s decision to cancel the visa, was the most recently approved nomination in relation to the applicant.

9. On 28 October 2016 the Department sent to the applicant a notice of intention to consider cancellation (the first notice) stating that the Department received evidence that he had been working cash in hand in Sydney for Mrs Sippy Restaurant in Double Bay and not for the sponsor. It stated that on 21 January 2016 the applicant was subsequently found by Australian Border Force (ABF) officers to be working at the named premises in Sydney and had been working there for approximately two to three months.

10. On 31 October 2016 the applicant sent an email to the Department in which he requested evidence of the matters stated in the notice. He indicated that he was not located by ABF officers working at Mrs Sippy and stated that he had never worked for Mrs Sippy.

11. On 8 November 2016 the Department sent to the applicant a second notice. The particulars in that notice provided that on 21 January 2016 Departmental officers conducted a site visit at Mrs Sippy restaurant and bar in Double Bay and obtained information that the applicant was working there on a casual basis. It stated that Departmental officers spoke to the applicant over the phone whilst they were at the premises of the Mrs Sippy restaurant and that the applicant did not dispute the information provided by the officers and that he was advised that working for a business that was not related to the 457 sponsorship may constitute a breach of his visa condition.

12. In response, the applicant provided a statutory declaration dated 15 November 2016. In the statutory declaration the applicant stated that he had never worked for Mrs Sippy. He stated that he and his spouse moved to the Gold Coast after he was sponsored so he could work for the Red Garlic Restaurant. He and his spouse planned their holiday and visited family in Sydney between 30 November 2015 and 24 January 2016. He stated that he and his wife’s marriage is a love marriage and that this resulted in conflict with his wife’s aunt who lives in Sydney. He stated that when they were in Sydney there were a few incidents during which he and his wife were treated poorly by the aunt and the aunt’s husband. He stated that he used to work at the London Tavern in Paddington from 2008 to 2014 part-time as a cook and that the owner of the London Tavern and staff and chefs were friendly and he used to often visit them. When he was in Sydney for a holiday he visited the London Tavern and heard from some friends who were still there that a few people were working at Mrs Sippy at Double Bay. He stated that he and his wife visited Mrs Sippy and that it was just to say hello to his workmates. He stated that he did not go there for work and that he has never worked at Mrs Sippy.

13. The applicant stated that a few days later he got a call from an immigration officer named Peter through his manager’s phone on 21 January 2016 who told him that he has a sponsorship in Queensland and asked him what he was doing in Sydney. The applicant stated that he told the officer that he is on holiday for seven weeks in Sydney. The officer asked him if he worked at Mrs Sippy and he told the officer that he had not worked there and that he was on holiday. He stated that the officer told him not lie and that he assured the officer that he was not lying. He stated that the officer asked him if he knows the 457 rules and he confirmed with the officer that he does. He stated that the officer asked him where his wife was and that he told him that she was with him after which the officer said okay.

14. The applicant denied that he told the officer that he was working at Mrs Sippy and stated that he was not working at all when they were on holidays in Sydney. The applicant stated that he was contacted by a Departmental officer on 28 October 2016 and was asked for his contact details and was informed that he would be receiving a letter regarding his 457 visa after which he received the notice regarding the cancellation. He was subsequently fired without notice from the Red Garlic Restaurant.

15. In submissions to the Department, the applicant’s representative queried the validity of the notice, which the representative argued did not accord with procedural fairness as did not provide particulars of the information obtained during a site visit which showed that the applicant had worked for Mrs Sippy.

16. On review, the Tribunal request the Department to provide the evidence on which it relied to issue the notices to the applicant. In response, the Tribunal received a copy of a compliance report which recorded details of a site visit that was conducted by a number of the departmental officers on 21 January 2016 at 37 Bay Street Double Bay NSW. It was recorded that during the site visit one of the Departmental officers spoke to the owner of the restaurant, Mr Angus Abrahams and that Mr Abrahams told the officer that the applicant had been working at the business for approximately two months and that the applicant worked at the location on that day and left after finishing his shift.  It was recorded that Mr Abrahams advised the officer that the head office in Manly takes care of employment of staff and conducts the relevant checks regarding immigration status and work rights. It was recorded that one of the officers showed Mr Abrahams how to conduct VEVO checks and that during that time Mr Abrahams made contact with the applicant using his mobile phone and handed the phone to another officer to speak with the applicant. It was recorded that journalists were at the premises and some of the officers and Mr Abrahams had to move to another part of the restaurant. It was recorded that the applicant continued to talk with one of the officers and that the applicant initially denied being employed at the location before admitting and saying that you would return to Queensland. It was recorded that the officer told the applicant that he would speak to him the following day. It was recorded that Mr Abrahams advised the officers that he would cease the applicant’s employment immediately.

17. At the hearing the applicant gave evidence about his employment history in Australia which was consistent with the information he provided in the statutory declaration. When queried further about his employment with the sponsor who last nominated him, he stated that he moved to Queensland and commenced work as a cook at the restaurant shortly after getting the 457 visa in May 2015. He worked for the sponsor up until his employment was terminated in October 2016, which was around the time he received the notice from the Department. He stated that he was last paid by the sponsoring employer in September 2016 and that his wages were paid by bank deposit. He gave evidence that he took 5 weeks paid leave in November 2015 and some unpaid leave up to January 2016. When asked if he had worked at Mrs Sippy during the time he was in Sydney between November 2015 and January 2016 the applicant emphatically stated no. The applicant gave evidence that when he was in Sydney he and his wife visited his old boss Mr Abrahams and their friends who used to work at the London Tavern. The applicant then gave evidence about the conflict he and his wife had with her aunt and the aunt’s husband and how poorly they had been treated by them. When asked how the evidence regarding the family conflict was relevant, the applicant stated that he believes that his wife’s family, who knew they had visited his friends, were the people that contacted immigration so they can cause problems for him.

18. The Tribunal discussed with the applicant the evidence in his declaration in which he stated he had received a call from immigration through his manager’s phone on 21 January 2016. The applicant stated that the immigration officers asked Mr Abrahams, who was his boss at the London Tavern, whether they knew him and that Mr Abrahams confirmed told them that he knows him (the applicant) well and that he still had his number saved on his (Mr Abraham’s) mobile phone.  The applicant insisted that he had only visited Mrs Sippy to see Mr Abrahams and his friends and maintained that he has never worked at the Mrs Sippy restaurant.

19. The Tribunal called Mr Angus Abrahams on the mobile number provided by the applicant. Mr Abrahams confirmed his personal details which were consistent with information in the site visit report. Mr Abrahams stated that he first met the applicant at the London Hotel where the applicant worked for a few years.

20. Mr Abrahams confirmed that a number of Departmental officers attended the Mrs Sippy premises on 21 January 2016. He also stated that he tried to contact Mr Azad during the site visit on his mobile phone and gave the phone to the officer. When asked why the officers wanted to speak to Mr Azad he stated because he (Mr Azad) came to the venue and the officers were asking about him. Mr Abrahams stated that the restaurant was at capacity at the time and he could not recall the details of the conversation with the officers. He recalls that there were a number of officers and that a journalist may have been outside the venue.

21. Mr Abrahams stated that Mr Azad came with his wife to the venue to visit as they were down from Queensland and knew some of the staff there. Mr Abrahams could not recall telling the officers that Mr Azad had worked at Mrs Sippy or that he worked there for two months or that he had finished a shift that day. He stated that he recalls one of the officers telling him that they needed to understand the background their employees and do an audit on the status of their visas. He stated that he recalls telling the officer that all the background checks were done by the head office in Manly where all records of employment were kept. Mr Abrahams stated that sometimes people come in asking for employment and that if a position is available they provide that person with the relevant forms to complete, which includes a series of questions regarding their status and that for any new staff the paperwork will be sent over to the Manly office and that there is an element of checking the background of employees.

22. When the Tribunal put to Mr Abrahams that his evidence about Mr Azad’s employment with Mrs Sippy appeared inconsistent with the information recorded in the site report about what he told the Departmental officers during the site visit, Mr Abrahams indicated that the information could be confirmed by the payroll records, which he is sure would not show that Mr Azad worked there.

23. The Tribunal put to Mr Abrahams its concern that Mr Azad may have been getting paid in cash whilst working for Mrs Sippy. In response, Mr Abrahams stated that they are a large business and would never do that, it is not their practice to pay by cash at all. Mr Abraham stated that he can do some background checking if there is something he missed and that if Mr Azad was on their payroll then he may be wrong.

24. Mr Abrahams indicated that he was not shown any record of interview to check if what was recorded about what he said is accurate. He stated that he does not recall being given a copy of the interview, though if anything was given it would have been placed in the management diary for that day. Mr Abrahams stated that if Mr Azad has been mischievous in any way he does not want to have anything to do with him though he is prepared to assist the Tribunal if required.

25. The Tribunal also took evidence from the applicant’s spouse. She gave evidence that she and the applicant were on holidays in Sydney between November 2015 and January 2016. She stated that the applicant has never worked at Mrs Sippy and that they had only gone to visit some friends from the London Hotel when they were on holidays in Sydney.

26. After the hearing, the Tribunal wrote to Mr Abrahams and requested for records kept by the business to be provided.  The Tribunal also wrote to the Department requesting further information regarding various matters referred to in the notices and the site visit report. The Department subsequently provided the same site visit report with no additional information. Mr Abrahams provided a statement and payroll records for Mrs Sippy for the periods between 1 October 2015 and 31 January 2016.

27. In his statement Mr Abrahams stated the following, Mrs Sippy is a bar restaurant that is operated by Bay St Investments Pty Ltd. He relevantly stated that during the immigration inspection he was asked a number of questions about a person called Mr Md Tanvir Azad and at the time of the questioning he was not exactly sure who the officer was referring to as the business employs a number of foreign staff in the kitchen who have long and difficult names to pronounce and who also refer to themselves with different names for the benefit of others. He stated that as the owner of the business his communication with kitchen staff is directed through the head chef or sous chef and that he often will not know the names of all the staff given the constant turnover of workers. He believes that this is the reason why he may have been confused when he first spoke to the officer. He stated that when he was initially speaking to the officer he was thinking about a different person but the more they spoke he definitely realised who the officer was talking about and tried to assist the officer by contacting Mr Azad though he cannot recall if the officers eventually reached Mr Azad. Mr Abrahams stated that Mr Azad worked for him at the London Hotel in Paddington and was on the payroll there as a cook for 6 years and that the hotel was sold in 2014. He stated that Mr Azad has never worked for Mrs Sippy in Double Bay though he did visit the venue on a two occasions to visit some of the staff who used to work at the London Hotel. He stated that he knows Mr Azad was working in Queensland and had relocated there with his wife.

28. The Tribunal has considered the evidence before it but has been unable to be satisfied that the applicant had worked for Mrs Sippy in breach of condition 8107(3)(a). The Tribunal’s assessment of the evidence and the reasons for its conclusion follows.

29. Mr Azad has maintained in all of his communication with the Department and the Tribunal that he has never worked for Mrs Sippy. The applicant spouse also maintained that the applicant had never worked for Mrs Sippy. Mr Abrahams, in his oral and written evidence to the Tribunal, also indicated that the applicant had not worked for Mrs Sippy and gave evidence that if the applicant had done so, the business’ payroll would indicate this. The Tribunal has considered Mr Abraham’s evidence and the payroll documents further below.

30. Against the above, is the site visit report that was provided to the Tribunal which contained some information that suggests the applicant may have worked at Mrs Sippy. The site report states that one of the officers spoke to Mr Azad on Mr Abraham’s phone during the site visit and that Mr Azad “initially denied being employed at the location before admitting and saying he would return to Queensland”. The Tribunal sought further information from the Department about the record of conversation between the officer and Mr Azad during the site visit however it only received another copy of the site report. The information in the site visit report indicating that Mr Azad had admitted to working at the location did not include a detailed record of the conversation between the officer and Mr Azad. Mr Azad in his statutory declaration sets out his version of the record of conversation, including the questions asked by the officer and his responses to the officer’s questions, which did not indicate that he made any admission to working at Mrs Sippy. The applicant reiterated his version of the conversation at the hearing and denied that he admitted to working at the restaurant.  There is no record in the site report of the questions asked by the officer and no record of Mr Azad’s responses to those questions. Given the limited evidence before it, the Tribunal is unable to be satisfied that what Mr Azad told the officer during the telephone conversation was an admission that he worked at Mrs Sippy. The Tribunal also notes that it was indicated in the report that the officer who spoke to Mr Azad told him that he would contact him the following day however there is no record before the Tribunal of any further contact between the officer and Mr Azad.

31. The site visit report indicates that during the site visit Mr Abrahams told the officers that Mr Azad had worked there for two months, had worked that day and finished his shift. At the hearing Mr Abrahams could not recall that he had told the officers that Mr Azad had worked at the restaurant as described the report. Mr Abraham’s evidence was that if Mr Azad was employed at restaurant then the business’ payroll records would show this. When it was put to him that Mr Azad was getting paid in cash, Mr Abrahams insisted that this would not occur as business is a large operation and it is not their practice to pay staff in cash. Mr Abrahams indicated that he told the officers that the head office in Manly conducted background checks on staff and kept records of employees. This is consistent with information in the site report indicating that Mr Abrahams told the officers that “the head office in Manly takes care of the employment of staff and conducts the relevant checks regarding the immigration status/work rights etc.” 

1. Mr Abrahams provided the payroll records for Mrs Sippy to the Tribunal which indicated that the business employed between 39 to 46 people in each given month in various positions within the different departments of the bar restaurant. The records also showed the number of hours each employee, wages received and superannuation entitlements. Mr Azad’s name did not appear on the list of employees for any of the months between October 2015 and January 2016, and Mr Abrahams in his post hearing evidence indicated that the applicant had never been employed by Mrs Sippy and that during the first part of the site visit he was confused about who the case officers were asking about and was thinking about another person and that after he realised who the officer was talking about he tried to assist by getting in contact with Mr Azad. Both Mr Azad and Mr Abrahams’  evidence in response to the queries about the officer contacting Mr Azad using Mr Abraham’s phone during the site visit is that Mr Abrahams had Mr Azad’s contact number on his phone since Mr Azad worked at the London Tavern.

2. Mr Abrahams could not recall telling the officers during the site visit that Mr Azad had worked at Mrs Sippy and claimed that he was initially confused about who the officers were referring to. The site report contains limited information regarding the officers’ conversations with Mr Abrahams. There is no detailed record of the particular questions asked by the officers about Mr Azad’s employment or Mr Abrahams’ responses to the questions. The report contained very limited information about the alleged employment, for example, there were no details about the number of times Mr Azad worked at the venue, he often he worked there, if he was included in the staffing roster, which department he worked in, in what position he worked, how much he was paid, the method of payment or the length of his shifts etc.

3. The Tribunal acknowledges that the first notice indicated that the Department had received information that the applicant was working cash in hand however the site report makes no mention of how the applicant was paid and whether any enquiries had been made, with Mr Abrahams or the business’ head office in Manly, about the method of payment. The first notice also states that the applicant was located by boarder force officers working at the location and that he had worked there for two to three months however this does not appear to be supported by any other evidence before the Tribunal. The Tribunal acknowledges that the particulars in the second notice appeared to be more consistent with the information in the site visit report however, like the report, it also contained limited information and indicated that the applicant did not dispute the information provided by the officers, namely that the applicant was working on a casual basis at Mrs Sippy, and that he was advised that working for a business that was not related to the 457 sponsorship may constitute a breach of visa conditions. The Tribunal notes that the site visit report provided does not record that the applicant was advised during the telephone conversation that he may be in breach of his visa condition. It is not clear to the Tribunal whether there were other records that were being relied on by the Department when the notices were issued, if there were, these records were not provided to the Tribunal.

4. Mr Azad has maintained that he has never worked for Mrs Sippy and suggested the site visit may have been the result of information provided by spouse’s family members who dislike him and who knew that he was going to visit his friends at Mrs Sippy. Mr Azad’s spouse’s evidence to the Tribunal is that they had only ever visited Mrs Sippy and that Mr Azad had never worked there. Mr Abraham’s evidence to the Tribunal also appeared to largely support Mr Azad and his spouse’s evidence, namely that they had only visited Mrs Sippy bar restaurant and that Mr Azad had never worked there. As for the information contained in the site visit report and the notices, as discussed above, some the particulars included in the notices are not recorded in the site report and there is limited evidence before the Tribunal regarding source of that information.  Further, the information contained in site report is limited and lacking in detail.

5. Given the limited evidence before the Tribunal regarding Mr Azad’s alleged employment at Mrs Sippy, the Tribunal is unable to be satisfied that Mr Azad did work at Mrs Sippy as particularised in the notices.  The Tribunal is accordingly not satisfied that the applicant was in breach of condition 8107(3)(a).

6. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

   DECISION

7. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

   R. Skaros
   Member