Baljit Singh (Migration)

[2019] AATA 1490

Baljit Singh (Migration) [2019] AATA 1490 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Baljit Singh
Mrs Sheetal Randhawa

CASE NUMBER:  1720818

HOME AFFAIRS REFERENCE(S):           BCC2017/2172619

MEMBER:Wan Shum

DATE:31 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 31 January 2019 at 3:44pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Business (Long Stay)) – business sponsored applicant – applicant to work in nominated occupation – applicant did not work in nominated occupation – applicant did not fulfil purpose of visa – no jurisdiction for second applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140M, 348
Migration Regulations 1994 (Cth), condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379

Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. The first named applicant was sponsored by the Trustee for Singh Family Trust (the Trustee) for the nominated occupation of Transport Company Manager. He was granted the Subclass 457 visa in association with the nominated occupation on 1 July 2016. On 12 June 2017, a delegate of the Minister decided to cancel the approval of the Trustee as a standard business sponsor under s.140M(1)(a) and bar the Trustee for one year from making future applications for approval under s.140M(1)(d).

3. The first named applicant’s visa was subsequently cancelled under s.116(1)(b) on the basis that the first named applicant did not comply with condition 8107, to work only in the occupation listed in the most recently approved nomination. 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. The Trustee has sought review of the decision to cancel the approval as a standard business sponsor and the bar. The applicants have sought review in respect of their visa cancellations.

5. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

6. The first named applicant (the applicant) appeared before the Tribunal on 24 October 2018, however this hearing was adjourned till 22 November 2018. On that date, both the applicant and Mr Gurprit Singh, the owner/director of Trustee, appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant was granted the Subclass 457 visa on 1 July 2016, sponsored by the Trustee for Singh Family Trust (the Trustee) to work in the nominated occupation of Transport Company Manager.  Condition 8107 was attached to the visa. It requires, among other things, that the visa holder work only in the occupation listed in the most recently approved nomination. In December 2016, officers of the Department began monitoring the Trustee. An officer of the Department interviewed the applicant by phone on 30 January 2017. During the interview, the applicant had said that he worked as a Transport Company Manager for the Trustee and said, amongst other things that he manages the accounts and other administrative tasks, does not work as a taxi driver or in any role other than as a Transport Company Manager because his visa does not allow it, he liaises with mechanics concerning repair and maintenance to cabs, lodges fixed priced dockets with Taxi HQ in Mackay by the 10^th of each month; and that the ‘boss’ trains all new taxi drivers.

9. Mackay and Whitsunday Taxis confirmed on 21 February 2017 that the applicant had never been an affiliated driver. The Training and Operations Manager of Mackay and Whitsunday Taxis further stated that the applicant “has attended our admin from time to time to submit documents for Guprit Singh [sic] but that is as far as the relationship with [the applicant] goes”.

10. On 12 June 2017, a decision was made by a delegate to cancel the approval of the Trustee as a standard business sponsor under s.140M(1)(a) and bar the Trustee for one year from making future applications for approval under s.140M(1)(d). The delegate considered that the Trustee had failed to ensure the primary sponsored person works or participates in the nominated occupation, program or activity and had thus failed to satisfy a sponsorship obligation. A copy of the decision record was provided by the applicant on review.

11. The applicant was sent a notice of intention to consider cancellation (NOICC) on 7 August 2017, as the delegate considered that the applicant was in breach of condition 8107. This was based on the view that the applicant had not demonstrated during the telephone interview that he was performing some key duties associated with the nominated occupation of Transport Company Manager, and that he holds a Driver’s Authorisation, which suggests that he was working as a taxi driver. The applicant responded stating that the interview was brief and that he had only provided a brief description of the types of tasks he was undertaking, that it was not an exhaustive list. It was further stated that the Driver’s Authorisation was obtained as a precautionary measure, because if he was stopped by police moving a taxi to the repairers without holding the proper licence, the police “could have the right to apprehend him suspend his driving licence and impound the vehicle” which would impact on his work and personal life. It was explained that the applicant was looking for a new sponsor due to the cancellation of the Trustee’s sponsorship and evidence was provided of some job applications. In addition, there was a letter (undated) from Mr Mandeep Singh of Singh Bros Qld Pty Ltd indicating that they were prepared to sponsor the applicant under the RSMS or 457 program but were waiting for the applicant to secure his English language test result.

12. The delegate considered the response and documents provided but was satisfied that the applicant had not complied with a condition of his visa and the visa was cancelled on 1 September 2017. The applicant became unlawful upon the cancellation of his visa. He was granted a Bridging Visa E on 12 September 2017.

13. According to the applicant’s evidence at the hearing, he came to Australia in 2010 as the holder of a student visa. He advised that he had been undertaking casual work since his visa was cancelled and lives with his brother, Guldeep Singh. He advised that his wife is working at BP. He said that he had stopped working on 8 September 2017 when his visa was cancelled.

14. The applicant claimed that he was working full-time as a Transport Company Manager and told the Tribunal his duties. The applicant was also asked about the location of work and to describe the premises.

15. He is currently working as a trolley pusher for Foodworks in Mackay. The Trustee has offered his job back if the cancellations are reversed.

16. Following the hearing, the Tribunal was provided with various documents including a position description for Transport Company Manager listing his claimed duties and the time spent undertaking these duties. It was submitted that the applicant and Mr Gurprit Singh had not been able to cover all the duties in the course of the hearing and what had been said was not an exhaustive list.

    Does the ground for cancellation exist?

17. 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.

18. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. As referred to above, condition 8107 applied to the applicant’s Subclass 457 visa and required that the applicant only work in the occupation for which the nominated was approved. There is no dispute that the most recent nomination in respect of the applicant was for the position of Transport Company Manager.

19. The applicant claims that he did work only as a Transport Company Manager, and not as a taxi driver as suspected. The Tribunal accepts that he did not work as a taxi driver as Mackay and Whitsunday Taxis has confirmed this, and they are the only taxi operators in the Mackay area.

20. As evidence of his employment as a Transport Company Manager with the Trustee, payslips have been provided for the period from July 2016 to 7 September 2017, timesheets and bank account statements of the Trustee and the applicant showing corresponding and weekly wage payments.

21. However, in spite of this, it does not accept that the applicant worked full-time as a Transport Company Manager for the Trustee for the reasons given below.

22. Firstly, the evidence of the owner/director and the applicant given at the hearing were inconsistent in a number of respects. This included the work hours and frequency with which tasks were undertaken.

23. For example, their evidence as to how regularly the applicant attended the Mackay and Whitsunday Taxi head offices varied – with the applicant stating that it was usually once a month, sometimes every 2 weeks depending on number of dockets received, while the owner/director said that he attended every week. In response to the invitation to comment, the applicant stated that Mr Gurprit Singh expected him to attend Mackay and Whitsunday Taxi head office weekly, but he attended as required. This does not sufficiently explain why the responses were different. It considers that their responses differed because the applicant did not genuinely carry out the nominated occupation for any length of time.

24. In addition, the owner/director said that as part of the applicant’s duties, he took the vehicles for inspection every 6 months as required by the Transport Department; but the applicant did not mention that he did this at the hearing. He said that he only took the vehicles once a year for inspection by Mackay and Whitsunday Taxis. Following the hearing, the applicant said he “mistakenly overlooked” the annual inspection required by the Transport Department. It is included as one of the duties listed on the new version of the position description provided to the Tribunal. Having regard to all the concerns arising from the material, the Tribunal has formed the view that the applicant did not mention this inspection because he did not carry out this task.

25. Secondly, their evidence on the applicant’s claimed work hours was not the same. Mr Gurprit Singh gave evidence at the hearing that the applicant’s work hours were Monday to Friday 8am to 4pm, whereas the applicant said he worked Monday to Thursday from 8am to 5pm and Fridays from 8am to 3 pm. In response to the 359A letter, the applicant stated that Mr Gurprit Singh worked as a taxi driver and most of the time it was his wife who would check the register. He further states that he would request days off from his wife and referred to the text message shown to Immigration during the monitoring. The Tribunal accepts that the text message was on the wife’s phones and notes that the timesheets are initialled by “B.K” which is Mr Gurprit Singh’s wife’s initials. However, it would have expected Mr Gurprit Singh to have told the Tribunal at the hearing that it was his wife who signed and checked the applicant’s timesheet when asked. Mr Gurprit Singh had clearly stated it was himself who checked and signed the timesheets. The only evidence to corroborate the applicant’s claimed hours of work are handwritten timesheets which could easily have been produced at the time they were requested from the Department, and are not sufficiently probative when there is conflicting evidence on this point. Given this, it is not prepared to accept the applicant’s evidence that he worked full-time Monday to Thursday from 8am to 5pm and Fridays from 8am to 3pm as a Transport Company Manager.

26. Thirdly, the applicant was asked a number of times about the property ‘16 Bradford St’ which was the previous location of the business (being Mr Gurprit Singh’s home address at the time), and the address at which he should have worked for the longest period during the validity of his visa. He told the Tribunal that it was a unit, in a single storey building with 5 or 6 units. Later, when it was put to him that ‘16 Bradford St’ was a house and not a unit, he then realised his mistake. Following the hearing, he said it was because he misinterpreted the question and had thought the Tribunal was referring to the first location of his work. He referred to there being 3 different locations over a short period. While the Tribunal accepts that there has been 3 changes of address of the owner/director from when the sponsorship was approved till when the visa was cancelled based on the information from the real estate agents, the related visa applicant was asked specifically about the ‘16 Bradford St’ address. It considers that he did not associate the address with the second location of the office because he did not work full-time at this address, or any of the others.

27. In terms of the 3 locations, the Tribunal would expect this to be reflected in the payslips provided as evidence of his employment with the Trustee. It has been provided with a full printout of all the payslips from July 2016 to 7 September 2017; however, there are only two different addresses appearing on the payslips for the employer. The payslips do not support their claims that the business had 3 different addresses. As to the weight that can be placed on the payslips as evidence of the applicant’s employment, the Tribunal does not consider that the payslips are reliable evidence of his employment. The payslips are computer generated, with the payslips from payment date 13 January 2017 all printed out on the same date (8 October 2018), and the payslips prior to that date all printed out on 11 January 2017. The earlier print-outs were previously provided in response to the Department’s requests for information around that time so the payslips cannot be said to be contemporaneous evidence.

28. In terms of other supporting material provided as evidence of the applicant’s work, there were some documents which were previously provided in response to the Department’s requests during the monitoring process. The documents include two copies of a brochure “Managing fatigue – A guide for the workplace” published by the Queensland Government which it is claimed that the applicant has co-signed in his capacity as a Transport Company Manager. There is also a ‘Driver Training’ sheet for Mandeep Thaper which is signed by the applicant as the “Trainer” on 8 February 2017. However, during his telephone interview on 30 January 2017, as recorded in the decision record of the delegate, the applicant had said that the “boss” trains all new taxi drivers. The evidence provided to show that he trained a driver is thus inconsistent with his own response during an interview about his duties and responsibilities. The Tribunal has placed limited weight on these documents as evidence that the applicant carried out work as a Transport Company Manager having regard to the nature of the documents provided, being brochures that were published by another organisation and merely initialled or signed and dated by the applicant and another.

29. Additional documents were provided after the hearing of his claimed work, which included a “data sheet” listing July to September 2017 in the first column, and figures under the income, expenses and fuel columns with subtotals and profit. It was described as a “quarterly data sheet – normally prepared by the nominated position”. However, there is nothing on this document to indicate that it was prepared by the applicant. It was also provided with a job description for Transport Company Manager which included notations made by the applicant as to the regularity he carried out the tasks listed on this document. The Tribunal had raised concerns during the hearing, as to whether the claimed work was full-time based on the duties described. The document does not alleviate these concerns. The Tribunal notes that the position description provided to it is not the same as that which was provided when the nomination was approved (the original description is copied in the decision record to cancel and bar the sponsor at page 3, a copy of which was provided to the Tribunal on review). For example, the version provided to the Tribunal does not include “setting overall directions of the transport branch of the company” “organizing the purchase and maintenance of vehicles, equipment and fuel”, and “liaising with clients to determine requirements and providing customer with advice and information regarding vehicle hire relates and handling complaints”. In particular, the latter two tasks were of concern to the Tribunal when questioning the parties about the scope of his duties at the hearing. This is because, on their evidence, the position itself did not require that the applicant carry out duties relating to clients/customers as their evidence was that all bookings were made by customers directly to Mackay and Whitsunday Taxi who then communicated with the driver of the vehicle. Their evidence was that the applicant was not involved in any purchases of any vehicles, as the Trustee only had three taxis throughout the period of his employment there which were purchased or leased by the owner/director as evidenced in the documents provided following the hearing. It thus appears that the specific duties which the Tribunal indicated at hearing that it had concerns regarding, because there was not any evidence of his performance of those duties, have been removed from the position description provided to it after the hearing.

30. In addition, while the position description includes notations as to how often the tasks were carried out by the applicant, to demonstrate that it was a full-time position, the Tribunal is not prepared to accept these assertions without evidence of the applicant’s involvement or the event occurring because of the problems outlined above. For example, one of the duties that the applicant claims to have carried out every 3 months is “organizing training sessions for employees”. However, nothing more has been provided such as training invoices or examples of the type of training session organised. Nor are there any training expenses on the 2017 financial statements of the Singh Family Trust which were provided following the hearing for both matters. The Tribunal does not consider the position description document to be reliable evidence that the applicant carried out these duties, and does not consider that it is evidence of the full-time nature of the position.

1. The Tribunal also has before it copies of receipts and taxi vouchers, and a taxi drivers daily work report and it accepts that the business would need to maintain appropriate records. It does not accept that the sponsored visa holder did that. The Tribunal considers that it is possible that the applicant did carry out some tasks such as taking documents to Mackay and Whitsunday Taxis for the Trustee as reflected in its letter stating that it occurred “from time to time”, and this enabled him to have an understanding of the business if there was an interview or if any investigations were undertaken. It does not consider there is evidence that he attended their offices monthly or more regularly as claimed, or that he arranged the yearly inspections with Mackay and Whitsunday Taxis for the 3 vehicles as claimed. The applicant has signed documents which were submitted to the Department during the monitoring referred to above. However, for the reasons given above, the Tribunal has formed the view that these documents are not reliable. The Tribunal acknowledges that there were regular payments made from the bank account of the Trustee to the applicant’s bank account which would ordinarily be reliable evidence of an employer/employee relationship. It notes that some of the claimed duties are the same as those described in the position description of Transport Company Manager when it was approved. However, given the number of inconsistent responses and the paucity of explanations provided, the Tribunal has formed the view that the applicant did not work full-time in the nominated occupation of Transport Company Manager.

2. It thus concludes that the applicant did not work in the occupation for which the most recent nomination was approved and breached condition 8107.

3. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

4. There are no matters specified in the Act or Regulations that must be considered in 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) ‘General visa cancellation powers’.

5. The focus of the applicant has been on refuting the concerns raised as to whether he was working as a Transport Company Manager. In response to the NOICC, the applicant provided evidence that he was looking for a new sponsor to “take over the 457 visa”. Evidence was provided that he had made two job applications and had found a potential employer/sponsor, being Singh Bros Qld Pty Ltd who own and operate a BP Service Station located at Shakespeare Street in Mackay. At the hearing, the applicant said that he had undertaken some delivery work for an Indian restaurant and was currently working as a “trolley pusher” for Foodworks, a supermarket located in Mackay. He did say his wife was working for BP.

6. In considering whether the visa should remain cancelled, the Tribunal has had regard to the type of visa which was held by the applicant. The applicant initially came to Australia to study but remained in Australia after obtaining sponsorship under the 457 program. The Subclass 457 visa is a temporary visa to address skills shortages in the labour market in Australia and is based on being sponsored and nominated for a particular occupation. The applicant was nominated for the occupation of Transport Company Manager. The sponsor’s approval was cancelled because the sponsor had not ensured that the applicant work in the nominated occupation, as a Transport Company Manager. The Tribunal has affirmed that decision on review. While the applicant is currently working, he is pushing trolleys and not employed in the occupation for which he had been nominated for the Subclass 457 visa. The jobs that the applicant had applied for before his visa was cancelled were for the position of Restaurant Manager and there was also an offer to sponsor him to work at a BP Service Station, although it is unclear for what position/occupation. For the reasons set out above, the Tribunal considers that the applicant did not work in the nominated occupation.

7. It appears to the Tribunal that the purpose of the applicant’s stay in Australia is so that he and his wife could attempt to settle here where his brother lives, and it was not to work for the sponsor and carry out the occupation for which he was nominated. There does not appear to the Tribunal that there is a compelling need for the applicant to remain in Australia on the information before it.

8. The Tribunal has found above that the applicant did not comply with condition 8107. The applicant claims that he worked for the Trustee until 8 September 2017; however his visa was cancelled on 1 September 2017. This was put to the applicant at the hearing, and in response a ‘timeline of business locations and events’ document which was provided following the hearing that the applicant ceased work on 1 September 2017. However, this is not consistent with the information given orally at hearing, that he worked until 8 September 2017. Nor is it consistent with the payslip provided which indicates the sponsored visa holder was paid on 8 September 2017 for working the period from 1 September to 7 September 2017.  In response to the 359A letter, the applicant said he was unsure after his visa was cancelled if he was required to stop working. He further states that he went to Immigration to enquire on 12 September and was informed that he was not permitted to work with the same employer but that he could work elsewhere. The applicant was unlawful until 12 September 2017 when he was granted a Bridging Visa E. While the Tribunal has found he did not work full-time for the Trustee, and thus does not believe he did work there until 8 September 2017, it considers that his claim to have continued working there after his visa was cancelled indicates his disregard of the law and his obligations. He was unlawful for this period, and was informed of this under the heading “Your immigration status” on page 3 of the letter notifying him of that this visa was cancelled (a copy of which was provided with the application for review). 

9. The applicant’s wife was granted a Subclass 457 visa as his dependent. Her visa was cancelled as a consequence of his visa being cancelled under s.140. The impact of this decision is that her substantive visa will not be reinstated and they will have the same visa status. They hold bridging visa Es so they will not be detained as a consequence of a visa cancellation so long as they depart Australia before that visa expires. While they may be required to depart Australia if their visas remain cancelled, this does not warrant setting aside the cancellation.

10. There is nothing before the Tribunal to indicate that Australia would breach any international obligations in relation to the applicant and/or his wife. There is nothing to suggest that the applicant’s behaviour towards the department would impact on the cancellation decision.

11. The Tribunal considers that there may be a degree of hardship as a consequence of the cancellation which will likely mean having to leave Australia and having to re-adjust to life in India. However, no claims of hardship or details were provided in this regard and the Tribunal does not consider that any possible hardship to the applicant and/or his wife is a reason for setting aside the cancellation.

12. The Tribunal has considered all of the evidence and material provided by the applicant in relation to the cancellation. The Tribunal has taken into account that the cancellation of the visa directly affects two individuals; however, it considers that the applicant did not fulfil the purpose of the visa and this outweighs the reasons for not cancelling the visa.

13. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

14. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

15. The Tribunal has no jurisdiction with respect to the second named applicant.

    Wan Shum
    Member