Azeem (Migration)

[2019] AATA 3298

Azeem (Migration) [2019] AATA 3298 (18 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Waqas Azeem

CASE NUMBER:  1811520

HOME AFFAIRS REFERENCE(S):          BCC2017/2595477

MEMBER:Stavros Georgiadis

DATE:18 July 2019

PLACE OF DECISION:  Adelaide

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 18 July 2019 at 3:56pm

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa– Subclass 187 – Café Manager (ANZSCO 142111) – employment terminated within the required employment period of 2 years– business ceased operations – genuine effort to engage, find and maintain work– decision under review set aside

LEGISLATION
Migration Act 1958, s 137Q
Migration Regulations 1994, r 2.50AA

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 19 April 2018 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(2) on the basis that the applicant’s employment terminated within the required employment period of 2 years and the delegate was not satisfied that the applicant made a genuine effort to be engaged in the specified employment for the required period of employment. The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Ms Sidra Sattar and two witnesses: a co-worker, Ms Misbah Fatima and former employer, Mr Dipesh Chopra. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu 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.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

   Does the ground for cancellation exist? (employment terminated within 2 years)

7. Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.

8. The applicant was granted a Class RN Subclass 187 visa on 25 November 2015 for specified work as a Café Manager (ANZSCO 142111) with his sponsor employer, Dipesh Pty Ltd.  The business trades as Aroma Café Forrest Lakes and is located in the suburb of Thornlie in metropolitan Perth, Western Australia. The business is a franchised Café to franchisor, Gemaka Pty Ltd.

9. The applicant had commenced work with the sponsor employer in the nominated position of Café Manager in November 2014 as an ongoing employee with recreation leave, sick leave and other conditions / industrial entitlements. The applicant’s fortnightly payslip dated 23 March 2016 shows that the applicant was paid at the rate of $26.50 per hour for full-time work (40 hours a week) with deductions made for superannuation and taxation.

10. The applicant’s visa was cancelled on 19 April 2018 after the Department was informed on 21 July 2017 that the applicant’s employment with his sponsor had ceased with the last day of trading on 29 April 2016.  The Statutory Declaration dated 11 July 2019 from sole Director of Dipesh Pty Ltd, Mr Dipesh Chopra, sets out that the applicant’s employment “ceased on 29 April 2016 due to the closure of the store permanently which was beyond the control of Waqas.”  At the hearing Mr Chopra explained further that negotiations with the franchisor, Gemaka Pty Ltd, and property manager, Lease Equity, failed to result in lease renewal and having been provided with four weeks’ notice to vacate the premises, the business closed permanently.

11. The Tribunal accepts from this evidence that the business ceased all operations on 29 April 2019 and that the applicant’s employment was discontinued from that date as the oral evidence at the hearing is consistent with the written submissions provided prior to the hearing as set out below (in part):

    “… Failure to complete the two year employment period was due to a circumstance

    beyond the visa-holder’s control

    11. We submit that the Review Applicant was employed in the occupation of Cafe
    Manager (ANZSCO 142111) until 29 April 2016.

    12. We are instructed that the business, Aroma Cafe, which was situated at Forest Lakes Shopping Centre in Thornlie WA (hereinafter referred to as “the business”) closed due to the expiry of the lease term. Please see attached and marked “L”, the letter from Alicial Mule, General Manager of Aroma Cafe.

    13. We are further instructed that the last day of operation of the business was 29 April 2016. It is significant to note that this was also the last day of employment of the
    Review Applicant, at the said business.

    14. We submit that the owner of the business, Dipesh Chopra attempted to negotiate the lease term and agreement. However, due to these attempts being futile, he closed down operation of the business. Please see attached and marked “A”, the Statutory Declaration of Dipesh Chopra.

    15. We submit that the inability to complete working in the nominated occupation at the sponsor’s business was beyond the control of the Review Applicant. Please see attached and marked “C”, the Statutory Declaration of Waqas Azeem highlighting the events relating to sponsorship and cessation of his employment at Aroma Cafe, Forest Lakes. …”

    _________________________________________________________________________

12. The Tribunal accepts that the 2 year ‘required employment period’ is to commence from the grant of the Subclass 187 visa on 25 November 2015. In this case the material employment period with the sponsor was just over 5 months duration (being 25 November 2015 to 29 April 2016). Accordingly, the Tribunal finds from the evidence discussed above that the applicant, as a Subclass 187 visa holder, commenced the employment (Café Manager) referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA), and that the employment terminated (on 29 April 2016) within the period (the ‘required employment period’) of 2 years starting on the day the person commenced that employment - cl.137Q(2)(a).

13. In these circumstances the Tribunal may cancel the visa, if the applicant fails to satisfy the Tribunal under cl.137Q(2)(b) that the applicant has made a genuine effort to be engaged in that employment referred to in the employer nomination (as Café Manager) for the ‘required employment period’ of two years.

    Genuine effort

14. The Tribunal has had regard to the applicant’s oral evidence and written submissions in respect of the issue of whether a genuine effort was made to be engaged in the material employment.  The applicant’s written submissions set out (in part) as follows:

    “… Genuine effort to complete the required two year employment period

    16. We are instructed that the Review Applicant made genuine efforts to remain
    employed in the same occupation as that reflected in the nomination application
    lodged on 21 April 2015. Please see attached and marked “B” and “C”, the
    Statutory Declarations of Waqas Azeem highlighting his employment and immigration
    history.

    17. We submit that the Review Applicant secured employment at Flame Indian Bistro. In this role, he managed the restaurant operations in the absence of the owner Zahid Ashraf.

    18. We are instructed that the Review Applicant realised that while working for Flame
    Indian Bistro he was not paid superannuation and no tax deductions were made from
    his pay.

    19. We are further instructed that the Review Applicant being sceptical about his situation in relation to pay, superannuation and tax deductions asked a co-worker if she was being paid regularly with superannuation benefits and if her tax was withheld. Please see attached and marked “E” the Statutory Declaration from Misbah Fatima.

    20. We are instructed that the Review Applicant questioned the owner of Flame Indian Bistro with respect to superannuation and tax deductions and also requested [for] his pay slips to which the owner responded that he was developing a software and once available his pay slips would be given to him.

    21. We submit that the Review Applicant did not receive his pay slips as promised by his employer.  However, the Review Applicant was informed by the owner of Flame Indian Bistro verbally that the business was to be sold and he was no longer required to attend work. Please see attached and marked “C”, the Statutory Declaration of Waqas Azeem.

    22. We are instructed that the Review Applicant then found employment and started
    working at Gloria Jeans Ellenbrook which was situated in a nearby suburb. Please
    see attached and marked “G” the email and reference letter from Rehman Shoket.

    23. We are instructed that the Review Applicant was faced with difficult and unfortuitous circumstances with respect to employment in his occupation as the businesses he was employed in failed or were sold, after which he started to work as an Uber/Taxi driver to support his family financially.

    24. We submit that the Review Applicant has made a genuine effort to secure employment in his nominated occupation as he is currently employed by Aroma Cafe, Northbridge as a Store Manager. Please see attached and marked “H” and “I” the Review Applicant’s Current Employment Contract and Payslips from Gloria Jeans (Ellenbrook) and Aroma Cafe (Northbridge) respectively. …”

    _________________________________________________________________________

15. The review applicant first arrived in Australia in December 2008. He has since married and started a family.  Both children of the couple are born in Australia (from the Birth Certificate of Adam Waqas marked “N” and Birth Certificate, Passport Biodata page and Citizenship Certificate of Amal Waqas marked “J”).  The applicant’s son is a dependent child attached to the review applicant’s Permanent Residency status. The review applicant’s daughter, aged 2 years, is an Australian Citizen.

16. The applicant’s submission is that should the family be required to leave Australia, to return to Pakistan, their daughter will have to forego education and other developmental opportunities, will not be able to access Medicare services available to her in Australia, and have difficulty in adjusting to life in Pakistan. This submission is that this not in the best interests of the Australian citizen child. Further, the applicant submits that the couple’s son is well adjusted in Australia, being a little older at 5 years of age, and progressing well at school and will therefore, be significantly adversely impacted.  The applicant’s wife has also suffered illness that will also be adversely impacted by such a change of circumstances.

17. The Tribunal found the review applicant to appear at times, nervous, being unfamiliar with the Tribunal formalities, and verbose in responses generally, although not necessarily evasive.  The Tribunal considers that despite such shortcomings, overall the applicant’s oral evidence is consistent and plausible in the context of other documentary material considered and oral evidence before the Tribunal on relevant matters. The Tribunal accepts the applicant to be a truthful witness - in unfamiliar surroundings.

18. The Tribunal has carefully considered the submissions and oral evidence provided and finds, on balance, that the applicant has made a genuine effort to be engaged in the specified employment.  The Tribunal places weight on the Statutory Declarations provided by Mr Chopra and the applicant together with their oral evidence setting out the work undertaken with the sponsor employer as Café Manager since the grant of the Subclass 187 visa. The applicant’s PAYG Payment Summary shows earnings of some $37,471K for part of the 2015/16 financial year, consistent with working full time as Café Manager up to 29 April 2016 allowing for approved annual leave (overseas holiday), sick leave and other leave taken to care for his ill spouse during that period.  Relevantly, the applicant returned to his work duties immediately upon return from his approved leave overseas.

19. The Tribunal places weight on the oral evidence and Statutory Declaration of Mr Chopra as business owner, finding that the closure of the sponsor’s business on 29 April 2016 was not due to any action or omission on the part of the applicant but due to the reasons given of non-renewal of the lease resulting from negotiations between Mr Chopra as franchisee, the franchisor and the property manager.  In this regard the closure of the business appears completely outside the control of the applicant and the Tribunal accepts that his termination was consequential from the unsuccessful negotiations and actions of his sponsor employer.

20. The Tribunal also places weight on the circumstances that the review applicant made significant endeavours to remain employed as Café Manager.  Acknowledging that he could not stay on in this nominated role with Dipesh Pty Ltd as the business had closed permanently, he sought and was successful, in securing work as Café Manager with another establishment. The Tribunal accepts the evidence that the applicant soon started such employment with Rohaaniya Entrprises (trading as Flame Indian Bistro).  Bank transactions into the applicant’s account held with Bankwest show that he was so employed from at least early May 2016 to late July 2016. The Tribunal accepts the evidence that in this role, the applicant managed the Café Restaurant / Bistro operations in the absence of the owner Zahid Ashraf.

21. The Tribunal accepts that this employment terminated following a dispute raised by the applicant with the owner of Flame Indian Bistro over non-payment or underpayment of superannuation entitlements and lack of payslips as this is also corroborated by a colleague employee, Ms Misbah Fatima, who had similar problems with that employer.  Ms Fatima was present at the hearing and provided evidence in this regard from her discussions with the applicant that the Tribunal accepts, and is consistent with her Statutory Declaration provided.

22. The Tribunal notes the delegate’s comments regarding concerns over the bona-fides of the applicant’s termination of employment with Flame Indian Bistro and other concerns regarding the timing of the said closure or sale of that business (understood as the reason for termination of employment).  However, in circumstances that legislated entitlements such as superannuation were not being properly met and the conflict that was raised over this, the Tribunal considers it reasonable that an employee might withdraw their labour due to the breach of mutuality by an employer.  It is to be noted however, that in this particular case, the applicant’s accepted oral evidence is that he was terminated by his employer “I don’t need your services any more” from the conflict raised over unpaid superannuation and lack of payslips. The evidence is that this business subsequently closed a short time later.

23. The Tribunal accepts that the applicant turned to increasing time driving taxis to enable him to provide financially for himself and his family.  This is an addition to weekend work previously undertaken as a supplement to his then work as a Café Manager.  The material point however, is that the Tribunal accepts the applicant continued reasonably to search for work as a Café Manager. The Tribunal accepts his oral evidence that he undertook on-line searches on Gumtree.com, Seek.com and also responding to print advertisements in the Quokka Newspaper in Perth.  There is some evidence retained by the applicant of this, including e-mails relating to his job search activities for Café Manager as follows:

    ·4/7/18                        Pappagallo Restaurant

    ·26/6/18  Bentley Hotel

    ·18/6/18  Retail Carrier Consulting

    and several other organisations including Gloria Jean’s Café franchises.

24. The Tribunal accepts from contract documents provided and the oral and documentary evidence, that between 10 September 2018 and 27 January 2019, the applicant secured work with Gloria Jean’s Café, Ellenbrook in a nearby suburb. This is supported by emails attached to the written submissions marked “G” and the email and reference letter of 18 February 2019 from the owner, Rehman Shoket, attesting to the applicant’s full-time work as Café Manager. The owner confirms that the applicant’s employment ended as this business also closed, which was outside of the applicant’s control.

25. The Tribunal accepts that the applicant has returned to work as Café and Restaurant Manager as he continues in that role with a different franchise of Aroma Café, this time in Northbridge, Western Australia as Store Manager.  The applicant’s ongoing employment in this occupation is evidenced by his current Employment Contract and from payslips attached and marked “H” and “I” to the applicant’s written submissions.

26. The Tribunal accepts that the applicant made numerous and sustained attempts to engage, find and maintain work consistent with an intention to continue as a Café and Restaurant Manager both with his former employer(s) and currently - all for the purpose of grant of the Subclass 187 visa. 

27. The Tribunal is satisfied overall, on balance, that the applicant has made a genuine effort to be engaged in that employment referred to in the employer nomination (as Café Manager) for the ‘required employment period’ of two years - for the purposes of cl.137Q(2)(b).

28. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that in this particular case, the power to cancel the applicant’s visa does not arise.

    DECISION

29. 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.

    Stavros Georgiadis

    
    

    Member