Baljeet Kaur (Migration)

[2020] AATA 3544

Baljeet Kaur (Migration) [2020] AATA 3544 (20 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Baljeet Kaur
Mr Raghbir Singh Sandhu
Miss Harsimrat Sandhu

CASE NUMBER:  1815156

HOME AFFAIRS REFERENCE(S):          BCC2016/3149549 BCC2017/3198611

MEMBER:Tigiilagi Eteuati

DATE:20 June 2020

PLACE OF DECISION:  Brisbane

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.

Statement made on 20 June 2020 at 7:07pm

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa– Subclass 187 – retail manager – employment terminated within the required employment period of 2 years–applicant made a genuine effort to remain employed for the required period –decision under review set aside

LEGISLATION
Migration Act 1958, ss 137T,137Q, 348
Migration Regulations 1994, r 2.50AA

CASES
Kaur & Ors v Minister for Immigration & Anor [2017] FCCA 2877

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 21 May 2018 to cancel the first named 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 on the basis that the applicant had her employment terminated within 2 years of commencing employment with her sponsor and she had not made a genuine effort to be engaged in that employment for the required 2 year period.

3. 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. However, Section 137T(2) of the Act has the consequence that, if the cancellation of the applicant’s visa is set aside, the cancellation of the visas of the Applicant’s husband and daughter are set aside.

4. The applicant appeared before the Tribunal on 20 December 2018 and 24 May 2019 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent. However, the representative did not attend the Tribunal hearing.

6. 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

7. 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

8. 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 r.2.50AA. In the case of a subclass 187 visa granted while the applicant was offshore, that period is six months from the applicant’s arrival in Australia.

9. 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.

10. The applicant applied for a Class RN Subclass 187 Regional Sponsored Migration Scheme visa in September 2016. She was sponsored in this application by Jayshree Enterprises Pty Ltd the Trustee for Jayshree Family Trust (“JE“).

11. The visa was granted on 5 June 2017 while the applicant was offshore. The applicant indicated at the hearing that after the grant of the visa she sold her family property in India and made arrangements to travel to Australia to begin employment.

12. She arrived in Australia on 13 June 2017 with her husband and her daughter who also held subclass 187 visas on account of the applicant been granted a subclass 187 visa.

13. JE ran a store in Buderim where it had been agreed that the applicant would work in her nominated occupation of retail manager.

14. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) which was referred to by the delegate provides for the functions and tasks of a retail manager as follows:

    “RETAIL MANAGERS organise and control the operations of establishments which provide retail services.
    …

    Tasks Include:

    ·     determining product mix, stock levels and service standards

    ·     formulating and implementing purchasing and marketing policies, and setting prices

    ·     promoting and advertising the establishment's goods and services

    ·     selling goods and services to customers and advising them on product use

    ·     maintaining records of stock levels and financial transactions

    ·     undertaking budgeting for the establishment

    ·     controlling selection, training and supervision of staff

    ·     ensuring compliance with occupational health and safety regulations”

15. The applicant indicated that when she attended the Buderim store on 14 June 2017 to start work, she was met by the director of JE, Mr Parmar, who had been the manager of the Buderim store business. Mr Parmar told the applicant that the Buderim store was no longer operated by JE and that he was seeking to open another convenience store where the applicant would work as retail manager. The applicant indicated that Mr Parmar asked her to work from his home office in Buderim until the new store opened.

16. The applicant indicated that she worked from Mr Parmar’s home office from 15 June 2017 until 4 October 2017. She provided documentary evidence that she was working for Mr Parmar during that period.

17. The applicant indicated that her work with Mr Parmar involved an accounting type role where she was required to go through invoices from the Buderim store to try to ascertain why the business had been failing.

18. On 23 August 2017, a migration agent employed by Mr Parmar sent an email to the Department indicating that the Buderim store had not been operated by Mr Parmar since 26 May 2017, before the applicant had been granted the visa. It appears that Mr Parmar failed to notify the Department or the applicant that JE was no longer involved in the Buderim store. The email from the migration agent indicated that the applicant was employed by JE on 15 June 2017.

19. On 4 October 2017 Mr Parmar sent an email to the Department informing the Department that, due to financial circumstances JE was no longer trading and were not able to continue to employee the applicant. Mr Parmar advised the Department that the applicant’s employment was terminated.

20. The applicant said that on 4 October 2017 she received an email from Mr Parmar indicating that for financial reasons, he would not be longer be able to continue to employ the applicant and that her employment was terminated immediately.

21. The applicant indicated that that from the time her employment was terminated in October 2017 she had been applying for jobs in the retail industry.

22. The applicant provided the department with documentary evidence that between October 2017 and January 2018 she had applied for a number of jobs in the retail sector in the Sunshine Coast area.

23. On 23 January 2018, the Department sent the applicant notification of proposed cancellation of her visa under section 137Q of the Act. The letter indicated that cancellation under section 137Q(2) of the Act was being considered as it appeared that the applicant had ceased employment referred to in the relevant employer nomination which had been terminated in October 2017, less than two years after she had commenced employment.

24. The notice from the Department indicated that the applicant was given the opportunity to make representations concerning the proposed cancellation. The applicant responded to the proposed cancellation through a migration agent on 20 February 2018.

25. The applicant’s response made representations that the ground for cancellation of the applicant’s visa did not exist as she had made genuine efforts to be engaged in the relevant employment. Among other things the response indicated that on 19 February 2018, the applicant had been offered full-time employment as a shop assistant with a store in Wurtulla which was operated by Yashvi Enterprises Pty Ltd The Trustee for the Yashvi Family Trust (“YE”). Documentation provided by the applicant indicated that the director of YE was a Ms Parmar, the wife of Mr Parmar, director of JE.

26. The applicant’s visa was cancelled on 21 May 2018. The decision record indicates that the Department had evidence that when the Buderim store closed, JE was operating two other stores, one in Maroochydore and one in Wurtulla. The delegate was concerned that JE did not offer the applicant work as a retail manager in either of these two stores. The decision record indicates that the Department also had information that the store in Wurtulla was transferred from JE where Mr Parmar was the director, to YE where Ms Parmar was the director. YE was the company that offered the applicant employment as a shop assistant on 19 February 2018. The Department was also concerned that YE had sought to fill the position of retail manager at the Wurtulla store by sponsoring a temporary visa holder rather than offering the position to the applicant.

    Consideration

27. From the above, it is clear that there was never a basis for the applicant’s visa to be cancelled under section 137Q(2) of the Act. That is because the applicant never commenced employment referred to in the relevant employer nomination, that is, as a retail manager. Between June 2017 and October 2017, she was employed in a role which involved studying invoices. That role does not in any way fit within the description of a retail manager provided by ANZSCO and excerpted above.

28. In Kaur & Ors v Minister for Immigration & Anor [2017] FCCA 2877 the Federal Circuit Court, Judge Lucev made it clear that the employment relevant for the purposes of section 137Q of the Act was the employment referred to in the relevant employer nomination. His Honour stated at [21]:

    “There does not appear to be any authority concerning the construction of s.137Q of the Migration Act. One good reason for that might be that its terms are plain. Its terms provide the Minister with discretion to cancel a regional sponsored employment visa (and the 857 Visa is one of those) if the Minister is satisfied that a person has not commenced “the employment referred to in the relevant employer nomination”. It is only the employment in the relevant employer nomination which must be considered, and not some other employment outside that referred to in the relevant employer nomination. That employment, which is the employment referred to in the relevant employer nomination, must be commenced within the period prescribed by the Regulations, which is six months: Migration Regulations, reg.2.50AA, Item 3. If the person is found not to have commenced that employment the onus falls on to the person concerned to satisfy the Minister that they have made “a genuine effort to commence that employment within that period”: Migration Act, s.137Q(1)(b). The reference to “that employment” in s.137Q(1)(b) of the Migration Act is plainly a reference to “the employment referred to in the relevant employer nomination” in s.137Q(1)(a) of the Migration Act. Thus, it is only the employment referred to in the relevant employer nomination that must be considered by the Minister in determining cancellation. The fact that a person is employed elsewhere, and in employment not referred to in the relevant employer nomination, is irrelevant. In the circumstances, the Tribunal proceeded on a correct interpretation of the provisions of s.137Q(1) of the Migration Act. The construction put forward by the applicant in these proceedings is, for the above reasons, without any basis in the terms of s.137Q(1) of the Migration Act.

29. The applicant did not commence the employment referred to in the relevant employer nomination within the prescribed period of six months from her arrival in Australia on 13 June 2017, that is, by 13 December 2017.

30. Therefore, if the Tribunal is not satisfied that the applicant made a genuine effort to commence employment as a retail manager prior to 13 December 2017, the discretion to cancel the applicant’s visa under section 137Q(1) of the Act would have been enlivened.

31. For the following reasons, the Tribunal is satisfied that the applicant made a genuine effort to commence employment as a retail manager between 13 June 2017 and 13 December 2017.

32. The day after the applicant arrived in Australia she reported to the Buderim store to commence work referred to in the relevant employer nomination, that is, as a retail manager. Mr Parmar told the applicant that the Buderim store was no longer operated by JE and that he was seeking to open another convenience store where the applicant would work as retail manager.

33. Mr Parmar asked the applicant to work from his home office in Buderim until the new store opened. The applicant worked from Mr Parmar’s home office from 15 June 2017 until 4 October 2017. The Tribunal considers that the applicant decided to work for Mr Parmar on the promise that he would open a new store where she would be employed as a retail manager. It is apparent that, from the applicant’s point of view at that time, this was the course of action most likely to result in the applicant being employed as a retail manager.

34. The applicant worked in that position, awaiting being employed as a retail manager until she was informed, on 4 October 2017, that her employment had been terminated.

35. The applicant then applied to a number of businesses for work on the Sunshine Coast in the retail sector. She was unsuccessful with these applications.

36. After she was sent notification of proposed visa cancellation by the Department, she was offered employment as a shop assistant in the Wurtulla store operated through the company controlled by Ms Parmar. The applicant indicated that she never took up this role as her visa was cancelled. Instead the applicant, after being granted a Bridging visa with working rights, took up her current role in a beauty therapy business.

37. The Tribunal notes that, in deciding that the applicant had not made genuine efforts to be engaged in the employment of a retail manager, the delegate indicated that the positions which the applicant applied for between October 2017 and January 2018 were not retail manager positions. That assumes, of course, that such positions were available and had been advertised. There is no evidence that this is the case and indeed the applicant indicated to the Tribunal that she applied for positions in the local area which had been advertised. In addition, it makes no sense that the applicant would deliberately want to work in sales positions which paid less than positions as a retail manager. That also applies to the offer of work from Wurtulla store operated by YE. The applicant was offered a job as a shop assistant rather than as a retail manager. As the delegate pointed out, a shop assistant occupation is a lower skilled occupation than a retail manager according to ANZSCO, and has a substantially lower base salary.

38. The Tribunal is satisfied that the applicant made a genuine effort to commence employment as a retail manager between 13 June 2017 and 13 December 2017.

39. As such, there is no power to cancel the applicant’s visa under section 137Q(1) of the Act.

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

    Possible fraudulent activity by sponsor.

41. The Tribunal notes that it is apparent from the delegate’s decision that the delegate considered that Mr and Mrs Parmar may have been engaged in some unsavoury operation whereby their businesses sought to sponsor overseas applicants to travel to, and work in, Australia and then proceed not to employee those applicants. That is evidenced by the delegate’s concern that the applicant was not offered a position at one of the other two stores that JE operated. It is also evidenced by the delegate’s concern that one of those stores, the Wurtulla store, was transferred to YE and that YE then proceeded to sponsor another person to travel to Australia to fill the position of retail manager in circumstances where the applicant had been brought to Australia to fill such a position.

42. The Tribunal considers that the delegate had every reason to be concerned by the behaviour of Mr and Mrs Parmar in the way described. Much of the delegate’s decision focused on the delegate’s concern that it appeared that JE and YE could have employed the applicant as a retail manager but instead transferred a store operated by JE to YE and then sought to sponsor another person to fill the retail manager position.

43. However, there is no evidence of any weight which indicates that the applicant was involved in any fraudulent activity. Indeed, the activity of Mr and Mrs Parmar appears to have been detrimental to the applicant. The applicant had been promised work as a retail manager in a store operated to a company controlled by Mr Parmar. She never worked in that role, through no fault of her own, exposing herself to visa cancellation. Instead, she undertook accounting tasks between June 2017 and October 2017 for Mr Parmar. Her employment was terminated by Mr Parmar in October 2017, citing financial difficulties.

    DECISION

44. 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.

45. Section 137T(2) of the Act has the consequence that the cancellation of the visas of the applicant’s husband, Mr Raghbir Singh Sandhu, and daughter, Miss Harsimrat Sandhu are set aside.

    Tigiilagi Eteuati

    
    

    Member