Chopra (Migration)

[2018] AATA 5186

Chopra (Migration) [2018] AATA 5186 (24 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Manasvi Chopra

CASE NUMBER:  1705348

HOME AFFAIRS REFERENCE(S):           BCC2016/4066007

MEMBER:Sheridan Lee

DATE:24 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 24 September 2018 at 3:54pm

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Temporary Work (Skilled)) visa – non-genuine position – applicant’s nominating employer ceased trading – applicant unaware nominating employer had been deregistered – applicant found a new employer – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, r 2.43

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 20 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g), for a prescribed ground as set out in r.2.43(1)(kb)(iii). The ground in r.2.43(1)(kb)(iii) requires that the position associated with the applicant’s nominated occupation be genuine. The delegate found that the applicant’s nominating employer, Seifeddine Enterprises Pty Ltd, ceased trading in September 2014 and was subsequently liquidated. As the company was not trading at the time the nomination was approved in 2015, the delegate held that the position was not genuine. The delegate found that the factors in favour of cancellation outweighed those against cancellation and cancelled the visa.

3. 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 Tribunal notes that the applicant’s husband and daughter held Subclass 457 visas on the basis that they are members of her family unit. Those visas were automatically cancelled as a consequence of the applicant’s cancellation, not by a decision but by force of the operation of s.140(1) of the Act: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. No application for review has been made in respect of those consequential cancellations.

5. The applicant appeared before the Tribunal via telephone on 1 August 2018 to give evidence and present arguments.

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.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)(g). 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?

8. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(kb)(iii) is relevant.

9. Regulation 2.43(1)(kb) applies in the case of the holder a Subclass 457 visa that was granted on the basis that the applicant met the requirements of sub regulation 457.223(4) – that, despite the grant of the visa, the Minister is satisfied that: (iii) the position associated with the nominated occupation is not genuine.

10. The applicant was nominated for a Subclass 457 visa to work in the occupation of Cook at La Porchetta in Werribee by Seifeddine Enterprises Pty Ltd as trustee for the Seifeddine Family Trust. The nomination was approved and a Subclass 457 visa was granted to the applicant on 30 July 2015.

11. Departmental records indicate that on 16 February 2016 the Department received notification from Mr Peter Vince of Vince and Associates that he had been appointed as the Official Liquidator of Seifeddine Enterprises by an Order of the Supreme Court of Victoria. Mr Vince advised that the company had ceased trading in approximately September 2014. As such, the company was not trading at the time the nomination was approved.

12. On the basis of this information, the Department cancelled the approval of Seifeddine Enterprises as a Standard Business Sponsor on 1 December 2016.

13. Australian Securities and Investments Commission (ASIC) records confirm that Seifeddine Enterprises Pty Ltd was deregistered on 23 April 2016 following a Winding Up Order issued by the Supreme Court of Victoria. The Australian Business Register shows that the Seifeddine Family Trust was cancelled from 19 February 2016.

14. The Department wrote to the applicant to provide a Notice of Intention to Consider Cancellation (NOICC) of her visa on 24 January 2017. The particulars were stated to be that it appeared a prescribed ground under s.116(1)(g) had arisen on the basis that the applicant’s most recently approved sponsor had ceased trading prior to the nomination approval and the position was therefore not genuine: r.2.43(1)(kb)(iii).

15. In response to the NOICC, the applicant outlined that she was unaware that the company had gone into liquidation and had continued to work as a cook at La Porchetta since her visa was granted. She provided a group certificate and payslips to support her submission. The Tribunal accepts the applicant’s account of events as true. The applicant’s employment and the circumstances in which the ground for cancellation arose will be discussed further under the Tribunal’s consideration of its discretion to cancel the visa.

16. Having regard to all the evidence before it, the Tribunal finds that the most recently approved standard business sponsor that nominated the applicant was not trading at the time the applicant’s visa was approved or at any time during the applicant’s time working at La Porchetta. On this basis, the Tribunal finds that despite the grant of the visa, the nominated occupation was not genuine.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

18. 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’.

19. The applicant arrived in Australia on 6 November 2008 on a Vocational Education and Training Sector Visa. She was granted her most recent visa, a Subclass 457 visa, on 30 July 2015, which provided for her to work as a Cook for Seifeddine Enterprises at a La Porchetta restaurant. The applicant’s husband and child were granted Subclass 457 visas on the basis that they are members of her family unit. At the time the visa was cancelled, the applicant was still working at La Porchetta, however as outlined above, she was working for a different employing entity.

20. In submissions dated 23 October 2017, the applicant outlined that she was employed by Mr Ali Seifeddine and commenced working at La Porchetta in Werribee on 24 August 2015 and continued to work without being aware of any issues until she received the NOICC from the Department.

21. At the hearing, the applicant gave oral evidence that she would show up to work each day at the same place, doing the same job, for the same person. She had no participation in the management of the business or knowledge of the Director’s financial circumstances. She was paid regularly and had no reason to question her employment.

22. The applicant provided the Department and Tribunal with bank statements, payslips and a group certificate.

23. The payslips cover 16 pay periods from 24 August 2015 (the date the applicant commenced employment) to 26 September 2016. Each payslip lists ‘Trustee for La Porchetta’ at the top and provides the following ABN: 74 711 301 463.

24. The Commonwealth Bank statements are for an account held by Miss M Chopra and cover the period 2 October 2016 to 1 January 2017. The statements show regular payments made to the applicant by Seif Enterprises, described as ‘wages’, until 6 December 2016. ASIC records show that Seif Enterprises Pty Ltd is an Australian Proprietary Company with the following ACN: 602 935 446, and no listed ABN.

25. The PAYG payment summary (Group certificate) covers the period 14 August 2015 to 30 June 2016. The Certificate lists Seifeddine Family Trust as the Payer and provides the following ABN: 79 038 190 308. The Tribunal notes that the ABN printed on the Group Certificate is that of the applicant’s nominating employer and is different to the ABN printed on the applicant’s payslips. Relevantly, the time periods overlap.

26. In written submissions and at hearing, the applicant gave evidence that following receipt of the NOICC she approached Mr Seiffedine for more information. At that time he advised her that he is the Director or both Seif Enterprises and Seifeddine Enterprises and can pay her from either account. He further advised her that he has since been approved as a Standard Business Sponsor for La Porchetta Werribee and did not realise it would affect her visa. The applicant supplied the Tribunal with a letter from Mr Seifeddine (undated), confirming that she was ‘unaware of the ownership changes in the business as Seifeddine family trust and trustee of laporchetta [sic] had the understanding that, this is not a concern for manasvi chopra to know about’.

27. The applicant supplied the Tribunal with a copy of a notification of approval of Seif Enterprises Pty Ltd as the Trustee for La Porchetta Werribee Trust as a Temporary Business Entry Standard Business Sponsor, dated 20 February 2017. The Australian Business Register lists the ABN of the Trustee for La Porchetta Werribee Trust as: 74 711 301 463. This is the same ABN listed on the applicant’s payslips.

28. Correspondence from the Official Liquidator of Seifeddine Enterprises outlines that the company formerly operated a La Porchetta and Serrano restaurant from leased premises in the Werribee Plaza Shopping Centre. The company ceased to trade in approximately September 2014 when the premises closed due to the renovation of the shopping centre. The publically available Pacific Werribee Shopping Centre Redevelopment website outlines that the new dining and entertainment precinct opened in June 2015.

29. The Tribunal accepts that the applicant worked in the La Porchetta located in the new premises. On the available evidence, it appears that the applicant’s employer established a complicated array of similarly named companies and trusts through which to run his businesses. In particular, the Tribunal notes that the employer issued a group certificate to the applicant from an entity that had already been liquidated and deregistered. The Tribunal acknowledges that the applicant worked as a cook and accepted remuneration in good faith.

30. At the hearing, the applicant gave evidence that she has had no previous compliance issues with any of her visas since she arrived in Australia in 2008. Departmental records do not contain any adverse information. The Tribunal accepts that the applicant has been cooperative with the Department.

31. The applicant departed Australia on 21 February 2018. On the day of the hearing she was visiting Canada before returning to India. Prior to her departure the applicant held a Bridging Visa E, as such she cannot return to Australia unless she is approved for another substantive visa. The Tribunal notes that the applicant’s Subclass 457 visa was scheduled to run until 30 July 2019.

32. At the hearing, the applicant gave evidence that her young daughter was born in Australia and had recently commenced primary school before the family departed Australia. She was concerned that the education system is different in India and that the change of environment would adversely affect her learning. The applicant further outlined that she had not yet found employment in India and was dismayed by the cancellation of her visa and felt she had done everything in her power to do the right thing.

33. The Tribunal considers that the above factors weigh in the applicant’s favour.

34. The Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa.

35. The Tribunal accepts that, if the visa cancellation is affirmed, the applicant would have been subject to s.48 of the Act if she had remained in Australia, which significantly limits eligibility for future onshore applications. However, in the Tribunal’s view, it does not affect her ability to apply for a visa offshore.

36. At the hearing, the applicant advised that she has been nominated for a Subclass 187 visa in an application lodged by La Porchetta Shepparton Pty Ltd. The Tribunal notes that the applicant would be eligible to apply for a sponsored visa while offshore.

37. The Tribunal considers that the above factors weigh against the applicant.

38. The applicant did not raise any international obligations that she believed would be breached as the result of the cancellation and there is nothing before the Tribunal to indicate that cancellation would result in Australia breaching any of its international obligations. The Tribunal has considered the UN Convention on the Rights of the Child (CROC) in relation to the applicant’s child, but is not satisfied that any of its principles would be breached by the family’s return to India.

39. The Tribunal considers that the applicant was unaware that her nominating employer had been deregistered and her employment was with a separate company. She was provided with employment records with conflicting and confusing information. The applicant attended work at the same location to perform the same occupation for the duration of her visa prior to cancellation. Compliance with Australian corporations law and record keeping obligations under workplace relations laws is the responsibility of the sponsoring employer.

40. Considering the circumstances as a whole, the Tribunal concludes that the factors in favour of reinstating the applicant’s visa outweigh the factors in favour of cancellation. Setting aside the delegate’s decision to cancel the applicant’s visa would result in the reinstatement of her visa, which would provide for her to return to Australia to work in circumstances where she had an approved nomination. The applicant’s sponsor has been cancelled and barred from sponsoring visa holders, and as a consequence she could not return to her previous employment. This does not prevent the applicant from seeking a new nominating employer under a visa scheme available onshore. The applicant gave evidence that she would like to continue working in Australia as a Cook and has made attempts to find a new employer, resulting in the nomination application for a Subclass 187 visa lodged by La Porchetta Shepparton.

41. Reinstating the applicant’s visa will provide the applicant with an opportunity to return to Australia and seek an alternative nominating employer. She will also have the cancellation removed from her departmental record.

    DECISION

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

    Sheridan Lee
    Member