Chahal (Migration)

[2018] AATA 4174

Chahal (Migration) [2018] AATA 4174 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kiranjeet Kaur Chahal
Mr Gurjit Singh
Master Kingdeep Singh Uppal

CASE NUMBER:  1706541

HOME AFFAIRS REFERENCE(S):           BCC2016/2486977

MEMBER:Bridget Cullen

DATE:27 August 2018

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.

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

Statement made on 27 August 2018 at 4:11pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visas – Subclass 187 Regional Sponsored Migration Scheme – not commencing the employment – restaurant closed for renovations – applicant presented for work – news report of sponsor’s eviction – applicant’s clear intention to recommence work – sponsor’s advice terminating employment – decision under review set aside

LEGISLATION

Migration Act 1958, ss 137, 348

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 Immigration and Border Protection on 24 March 2017 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 delegate found that applicant did not commence the employment referred to in the relevant nomination and had not made a genuine effort to do so. 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. 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.

4. The applicants appeared before the Tribunal on 6 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gaurav Pabbi, an employee of another business that operated within the same shopping complex as the applicant’s sponsor.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended 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.

9. The Tribunal has before it the Department and Tribunal files relating to the cancellation decision.

   Commencement within prescribed period: s.137Q(1)(a)

10. The applicant was nominated for her Class RN subclass 187 visa by BCK Enterprises Pty Ltd trading as Buffet Corner (“BCK”) as a Restaurant Manager in their restaurant, Buffet Corner, located in the Gladstone Central Shopping Centre.

11. The applicant travelled to Australia in February 2009, as the holder of a student visa, and commenced post-secondary studies.  By January of 2015, she had completed several courses of study, including an Advanced Diploma of Management.  In January of 2015, BCK offered to sponsor the applicant on a Temporary Work (Skilled) visa subclass 457 visa in the role of Restaurant Manager at Buffet Corner.  A contract of employment was signed on 3 February 2015, and the applicant commenced work that same month. 

12. On 23 September 2015, BCK nominated the applicant for a subclass 187 visa. The applicant applied for a subclass 187 visa on 8 March 2016, and the visa (that is the subject of this review), was granted on 8 June 2016.

13. The applicant says that Buffet Corner closed briefly in June and July of 2016, to facilitate some renovations.  She says that she presented for work as agreed with BCK on 11 July 2016, and that her employers were not in attendance.  She says that she tried to follow up with them a week later, by email on 18 July 2016, but to no avail. 

14. The delegate, in deciding to cancel, relied heavily on information sent to the Department by BCK on 25 July 2016, wherein the sponsor claimed that the applicant failed to attend work after the subclass 187 visa was granted, and also failed to return the sponsor’s telephone calls and requests to attend staff meetings to reconcile attendance issues.  The information was not sent to the Department directly by BCK, but rather, via its registered migration agent.  The sponsor also claimed that the applicant’s failure to attend had placed it under significant business pressure.

15. The information before the Tribunal, which was not available to the delegate at the time of decision, paints a very different picture of BCK’s operation.  The Tribunal finds, on the basis of this information, that the advice delivered by BCK to the Department was disingenuous and false.

16. Publically available articles from the Gladstone Observer newspaper reveal the following about Buffet Corner:

    ·18 September 2016 article “Business vanishes as owner desperately launches revamp” – An Indian restaurant owner who planned an exciting new facelift for his restaurant has closed his business after the landlord evicted him from his premises. 

17. The article contains a photo of a “Notice to terminate lease” on McCullough Robertson Lawyers Letterhead, which reveals that:

    ·The Landlord terminated BCK’s lease for the Buffet Corner premises on 24 August 2016.  The termination followed the issuing of a notice to remedy breaches of covenants under the lease, which was served on BCK on 29 July 2016. 

18. The Tribunal notes that the notice to remedy breach was served on BCK just 4-days prior to BCK advising the Department that the applicant had not commenced work.  The material before the Tribunal suggests that BCK was well aware that it was experiencing financial difficulties in relation to its lease at the time that it notified the Department of the asserted noncompliance and non-attendance by the applicant.  The Tribunal considers it possible that BCK strategically engaged its Registered Migration Agent to forward its assertions to the Department, rather than advising the Department directly as it was aware that the statements it was making to the Department were blatantly false.

19. The Tribunal accepts the evidence of the applicant that she attended work at Buffet Corner during the weeks of 13 June 2016 and 20 June 2016, at the sponsor’s request to assist with the renovation and set-up of the restaurant.  Her evidence is consistent in this respect, with the timing of Buffet Corner being renovated as documented in the Gladstone Observer.  The applicant’s evidence is further supported by emails between herself and the sponsor in this time frame, clearly indicating that she intended to return to work on 11 July 2016.  The applicant gave evidence that, with her sponsor’s consent, she went on holidays to visit her husband in late June and early July of 2016, as he was working out of town.  The holidays were taken during the period of Buffet Corner’s renovation.  The period also coincided with the school holiday period, relevant as the applicant has a school aged son.

20. The applicant, in an email to BCK dated 7 July 2016, further indicates that she had limited ability to be contacted during this period.  The applicant tells BCK that she had quit another part time role, and was hoping that she would be paid properly by BCK, according to her contract.  In this respect, as she advised the sponsor she clearly intended to recommence work on 11 July 2016, the Tribunal finds BCK’s assertions to the Department that she was not responding to phone calls to be disingenuous.

21. The Tribunal accepts the evidence of the applicant that she attended work on 11 July 2016, at the sponsor’s direction.  Her evidence was supported by the oral evidence of Mr Pabbi.  Mr Pabbi worked at the Coffee Club restaurant located in the same shopping centre as Buffet Corner. Mr Pabbi gave sworn evidence that he saw the applicant waiting at Buffet Corner on 11 July 2016.  He recalled, as he was surprised that she was there.  Mr Pabbi approached the applicant, and asked her why she was there, as he had been told that Buffet Corner had been sold.  Mr Pabbi told the Tribunal that the applicant was surprised to hear this.  Mr Pabbi has no personal interest in the outcome of this review, and there is no reason for the Tribunal to disregard his evidence.

22. On 18 July 2016, the applicant again emailed her sponsor, querying why they were not in attendance, and asking, “Can you please update me when you guys planing to open the restaurant”.  BCK replied as follows, “there is no point of acting. We’ve being there with our lawyer mr Julian o brien (solicitor) for more than 2 hours. We have already sent your rletter to your postal address, thanks for working with us. Best of luck with your life in Australia.”

23. Ultimately, in order to be paid her wage entitlements, and taxes, owed to her for the weeks of 13 June 2016 and 20 June 2016, the applicant had to seek assistance from the Fair Work Ombudsman.   The Tribunal has been provided with a copy of the complaint filed in the Fair Work Commission on 24 July 2017 by the applicant.  In settlement of those proceedings, BCK provided the applicant with a letter dated 4 August 2017, indicating that:

    “Buffet corner Indian restaurant was closed permanently and handed over to a new business operator on 24.08.2017 due to financial issues and at no fault of kiranjeet chahal.”

24. ASIC records reflect that, as at 3 August 2018, strike-off action was in progress in relation to BCK. 

25. Viewing these matters together, the Tribunal is satisfied that the applicant made a genuine effort to commence her employment referred to in her relevant nomination within the prescribed 6 month period after the visa grant.

26. 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.

    DECISION

27. 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.

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

    Bridget Cullen

    
    

    Member