Bhangu (Migration)

[2018] AATA 3502

Bhangu (Migration) [2018] AATA 3502 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amrinder Singh Bhangu
Mrs Ravinder Kaur
Ms Gunreet Kaur Bhangu

CASE NUMBER:  1803151

HOME AFFAIRS REFERENCE(S):           BCC2017/3790518

MEMBER:Stavros Georgiadis

DATE:6 August 2018

PLACE OF DECISION:  Adelaide

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

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

Statement made on 6 August 2018 at 4:40pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Employment conditions – Excessive hours of work as a taxi driver – Taxi Personal Identification Number used in an unauthorised manner by another driver – Ceased working as a taxi driver – Working full time as a Restaurant Manager – Decision under review set aside

Practice and procedure – Jurisdiction to review first named applicant’s claims

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223 Schedule 8 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 5 February 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. 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 other applicants’ visas were 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 those other visas 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 them.

3. The applicants appeared before the Tribunal on 6 August 2018 to give evidence and present arguments.

4. The applicants were represented in relation to the review by their 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?

   s.116(1)(b) - non-compliance with conditions

7. 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. In this instance condition 8107 is attached to the applicant’s visa. This condition requires that the last substantive visa held by the holder, being a Subclass 457 visa granted on the basis that the holder met the requirements of subclause 457.223(2) or (4), is working for a standard business sponsor at the time of approval as a standard business sponsor, and “must work only in the occupation listed in the most recently approved nomination for the holder, ....” [cl.8107(3)(a)(i)]

8. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8107 of the visa as he was regarded as working in employment as a taxi driver being an occupation other than the nominated occupation of Café or Restaurant Manager (ANZSCO 141111). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

9. The Tribunal finds that the applicant’s last substantive visa held was a Subclass 457 visa granted on 20 June 2015 on the basis that the holder met the requirements of subclause 457.223(2) or (4) for the visa.  The applicant commenced working for his employer sponsor, Surinder Kumar and Janak Dulari ATF Royal Tandoori Trust from 29 June 2015 on a full time basis as a Café or Restaurant Manager.  The employer sponsor’s most recently approved nomination in respect of the applicant was approved on 11 June 2015.  Therefore, the Tribunal finds that the last substantive visa held by the visa holder was a Subclass 457 visa granted on the basis that he met the requirements of subclause 457.223(2) or (4) and was working for a standard business sponsor at the material time of approval.

10. The primary issue for the Tribunal to determine therefore, is whether the applicant has complied or not with condition 8107 of his visa.  The delegate relied on the following information (at page 5 of the decision) raised with the applicant in the Notice of Intention to Consider Cancellation (NOICC) dated 10 January 2018 and also at the hearing:

    ·On 12 August 2017 information from the Department of Planning, Transport and Infrastructure identified that the applicant had been working as a taxi driver for Suburban Taxis;

    ·Taxi Driver log reports for the ‘reporting period’, 21 June 2016 to 2 July 2017, identified that during this period the applicant worked an average of 9.00 hours per day driving taxis.

11. The applicant’s response is that he was not driving taxis at any material time including during the reporting period, 21 June 2016 to 2 July 2017.  He told the Tribunal when asked, that he had been driving taxis from 2009 to 2014 on a part time basis whilst the holder of a student visa but that this was in accordance with the conditions of his student visa.  He explained that taxi drivers openly discuss their Personal Identification Number (PIN) as they would help each other out to continue to be able to log in to a company’s taxi booking system when taxi companies would discontinue non-compliant drivers’ PIN access.  The applicant explained that this would occur for example, as a consequence of ‘rejecting a job’ of because of ‘not picking up a job quickly’.  He explained that without a valid PIN the driver could not continue to receive bookings and therefore get work from the taxi company. The applicant told the Tribunal, when asked, that he had discussed his PIN with 4 or 5 other drivers some time ago, when he was driving prior to 2014. He explained that on this basis, the driving log from Suburban Taxis has his PIN recorded as a driver during the reporting period, whereas, he was not actually driving taxis at the time.

12. The Tribunal expressed concern to the applicant about the notion of sharing his PIN with other drivers given his concession that the taxi companies had discussed with drivers the importance of keeping their PIN confidential.  The applicant has since changed his PIN with the two companies he had previously worked for as a taxi driver being Suburban Taxis and Yellow Cabs.  The applicant explained when asked, that he had not confronted any other driver about the situation of the use of his PIN as it could have been any of a number of other drivers (up to 5) who had discussed their PINs and then accessed the booking system with unauthorised use of his PIN.

13. In support of the application, there is documentary evidence (discussed below) and oral evidence which in all the circumstances, establishes on balance, that during the material time of the reporting period, 21 June 2016 to 2 July 2017, the applicant was in fact working full time as a Café or Restaurant Manager with the sponsor employer and not as a taxi driver.  This evidence includes payslips from the nominating employer which show the applicant was engaged full time in the sponsor’s restaurant trading as Royal Tandoori Restaurant at Parkside, South Australia and being paid $1,041.20 gross per week for 38 hours work each week.  This is consistent with the PAYG Payment Summaries for 2016 and 2017 which show gross earnings of $54,142 for each year and which were included in preparation of the applicant’s income tax returns for those respective years.  A copy of the applicant’s Notice of Assessment from the ATO for each of those years was provided to the Tribunal. The applicant’s statutory declaration and also the statutory declaration from the applicant’s nominating employer are consistent with this evidence of full time work with the sponsor employer and not as a taxi driver.

14. The Tribunal also has considered the nature of the information provided to the Department and in particular, the hours alleged as ‘working an average of 9.00 hours per day when ... driving taxis’.  This information does not stipulate whether the 9.00 hours worked per day on average was for 5 days a week or 7 days a week.  However, the Tribunal accepts that this would equate to between 45 and 63 hours per week.  Given the accepted evidence of the applicant’s full time work as a Café or Restaurant Manager of 38 hours per week from the documentary and oral evidence discussed above, the Tribunal considers it implausible that the applicant was in fact working a total of between 83 and over 100 hours per week (if one includes the alleged work as a taxi driver).  The Tribunal places substantial weight on this and considers the more plausible explanation is that offered by the applicant - that his PIN was used in an unauthorised manner by another driver, rather than the taxi driving being undertaken by the applicant. 

15. Having considered the available evidence discussed, the Tribunal finds on balance, that the relevant condition 8107 has not been breached by the applicant as it accepts the evidence that he has only worked in the nominated occupation of Café or Restaurant Manager at the material times, including the reporting period from 21 June 2016 to 2 July 2017.  He therefore, satisfies paragraph 8107(3)(a)(i) of condition 8107.

16. 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

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

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

    Stavros Georgiadis
    Member