Datt (Migration)

[2021] AATA 4110

Datt (Migration) [2021] AATA 4110 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parneel Sanjay Datt

CASE NUMBER:  1835588

HOME AFFAIRS REFERENCE(S):          BCC2017/2807832

MEMBER:Namoi Dougall

DATE:20 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl 457.223(4)(a) of Schedule 2 to the Regulations; and

·cl 457.223(4)(f) of Schedule 2 to the Regulations.

Statement made on 20 August 2021 at 2:43pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Operations Manager – subject of an approved nomination – adverse information – working on a cash basis and without ‘work rights’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 7 August 2017.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). One of the criteria to be satisfied at the time of decision is cl 457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl 457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl 457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl 457.223.

4. The delegate refused to grant the visa on 26 November 2018 on the basis that cl 457.223(4)(a) was not met because the nominee was not the subject of an approved nomination by a standard business sponsor. The application that had been made by the primary visa applicant’s prospective employer, Metro Transport Australia Pty Ltd (the sponsoring business), for nomination approval had been refused by the Department.

5. On 28 July 2021 (the first hearing) and on 3 August 2021 (the second hearing), the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence at both hearings from Mr Hussain, the Operations Manager for the nominating business, and at the second hearing from a Director of the sponsoring business, Mr Dardas.

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl 457.223(4)(a).

   Requirement for an approved nomination

9. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

10. The Department refused the nomination application made by the sponsoring business, in a decision made on 26 November 2018.

11. That decision was the subject of merits review before the Tribunal. On 20 August 2021 the Tribunal set aside the Departmental decision.

12. The Tribunal accordingly finds that the applicant is the subject of an approved nomination by a standard business sponsor that has not ceased.

13. For these reasons, the requirements of cl 457.223(4)(a) are met.

14. On the Departmental file is information which was provided to the Department and alleges that that the applicant worked in Australia on a cash basis on visas without work rights. The Department has notified the Tribunal that s 376 of the Act applied to the information and, therefore, the Tribunal has a discretion as to whether it discloses the information. The Tribunal chose to exercise its discretion to provide the relevant details of the information to both the applicant and the sponsoring business in letters dated 14 July 2021 and, in more detail, at the second hearing. The applicant and the sponsoring business were invited, both in the letter and at the second hearing, to give comments on or respond to the information in writing. A submission was provided to the Tribunal responding to the adverse information after the second hearing.

15. The Tribunal’s letter of 14 July 2021 explained that the information is relevant to the review because it is adverse information known to the Department about the applicant’s sponsoring business on which the Tribunal may find that the applicant does not meet cl 457.223(4)(f)(i) and, if the Tribunal also finds that it is not reasonable to disregard the adverse information, then the Tribunal may also find that the applicant does not meet all of the criteria in cl 457.223(4)(f).

16. The information received by the Department was primarily about the applicant working in Australia on a cash basis and without ‘work rights’ but the information was provided at a time between when the applicant was nominated in the business nomination application lodged by the sponsoring business on 2 August 2017 and when the applicant commenced working for the sponsoring business on 21 April 2021. However, the address included in the information provided to the Department where it was claimed that the applicant worked is not the sponsoring business’s address.

17. Provided to the Tribunal were bank statements for the applicant’s ANZ Business Extra account from April 2018 to May 2021. The Tribunal, at the first hearing, referred to the sponsoring business’s ANZ Business Extra account indicating that a number of individuals were being paid whose payments did not match up with the PAYG summaries for that year or who only began to be issued with a PAYG summary the following tax year. The Tribunal commented that this may indicate that these individuals were being paid cash, albeit by bank transfer, and support the adverse information set out in the Tribunal’s letter of 14 July 2021. Mr Hussein stated that some of the business’s employees start as employees and then become subcontractors with their own ABN. He further explained that they promote from within the business, and the employees can change their status, particularly when they became a driver, and they usually become a subcontractor. The Tribunal asked for a list of employees and subcontractors, when they started and, where relevant, finished with the business and their employment status for the past 3 financial years to be provided to the Tribunal prior to the second hearing. The Tribunal explained that the discrepancy between those being paid regularly and the PAYG statements could confirm the adverse information set out in the Tribunal’s letter about the business employing individuals on a cash basis. Subsequently, the Tribunal was provided with the requested information which indicated that there were very limited discrepancies between salary payments in the sponsoring business’s bank account and PAYG summaries and other payroll records.

18. At the second hearing, Mr Dardas said he refutes the allegations set out in the Tribunal’s letter. He stated that the business only deals with tier 1 companies, all transactions and payments go through the sponsoring business’s accounts and there are no cash withdrawals. The sponsoring business’s accounts indicate that the company cannot get cash to pay people. He also stated that the volume of work that the business does for its tier 1 clients is such that there is no room for extra work because, if there was extra work, the business would need additional vehicles. The Tribunal referred to the business nomination and visa applications being lodged in August 2017 but the applicant was only employed in April 2020 and asked why the sponsoring business waited so long to employ the applicant, and Mr Dardas said it was a challenge to find someone as it does come down to how much you are willing to pay and they did try to find someone. The applicant is being paid $60,000 plus superannuation.

19. Provided to the Tribunal were bank statements for the applicant’s Commonwealth Bank account from 1 July 2017 to 30 December 2020 and Westpac Choice account from 30 September 2020 to 31 March 2021. At the second hearing, the Tribunal referred the applicant to the cash deposits being made at fairly regular intervals into his bank account, particularly in the Commonwealth Bank account. The applicant responded stating that he had brought with him from Fiji FJD6,500. He had intended to use cash, but as cash was not accepted for many things he had to deposit it into his account and use his card. After 8 or 9 months, the applicant’s wife came and visited him and she also brought with her FJD8,000 which he used the same way. Subsequently, the applicant provided a statutory declaration to the Tribunal in which his spouse confirmed that she brought the cash with her to Australia when she visited the applicant in May 2018.

20. At the second hearing, the Tribunal asked the applicant why he did not put all his money into his bank account once he found out that he needed to pay with a card, and the applicant responded by stating that he was not sure he would be remining in Australia so he did not want to exchange all his currency in to Australian dollars. The applicant also stated that his sister also provided help. In his statutory declaration, the applicant stated that his sister gave him a total of $1,200 but now they are not on speaking terms. The Tribunal asked why he put the money into his account in small amounts, and he stated that he had to pay medical insurance and living expenses. He also had friends who helped him out with smaller amounts of $100 or $150. His medical insurance was $112 a month and his living expenses were roughly $300 to $400 a month. However, the amount he needed was not regular and when account dropped down, he would top it up, but he wanted to be sure about what was happening to him.

21. At the second hearing, the Tribunal asked the applicant where he got the money exchange into Australian dollars, and he stated that he did so at shopping malls, but he did not keep receipts. He exchanged at 2 places, firstly at Seven Hills and then at Mount Druitt. He lived in Seven Hills in 2017 for a few months before moving to Mount Druitt where he remained until April 2020. He now lives in his own accommodation. In his statutory declaration, the applicant stated that he lived with a friend, Akila Khan, initially who gave him $2,000 before he lived with his cousin, Shavneel Dutt, who also gave him $2,000. Subsequently, the Tribunal was provided with a statutory declaration from Mr Shavneel which set out in basic terms the same statements as the nominee.

22. At the second hearing, the Tribunal noted that he used his card for fuel and asked why he needed the use of the car, and he said to go to malls as he was bored at home. The Tribunal noted that he was eating out in a number of suburbs and buying petrol in those suburbs which may indicate he was working at a variety of locations. In his statutory declaration, the applicant stated that it was his first cousin who lent him his car and he contributed by paying for petrol and toll expenses.

23. Subsequently, the Tribunal was provided with a statutory declaration from Mr Shavneel which set out in basic terms the same statements as the nominee.

24. Once the sponsoring business clarified who was paid as an employee and who was paid as a subcontractor and from when, the Tribunal is satisfied that the sponsoring business was not employing workers on a cash basis through bank transfer. The Tribunal accepts the sponsoring business’s argument that they work for tier 1 companies who themselves operate in a lawful manner and the business does not have the capacity for other work that may be done on a cash basis. Also, the sponsoring business has provided significant financial, including taxation, information which satisfied the Tribunal that the sponsoring applicant is lawfully operating. The oral evidence provided by the applicant at the hearing was not referrable to the sponsoring business and, as referred to above, the address where it was claimed that the nominee worked on a cash basis was not the sponsoring applicant’s business. Therefore, the Tribunal is satisfied that the adverse information is not adverse information in relation to the sponsoring business.

25. The applicant has provided an explanation about the regular cash deposits in his bank account. The Tribunal still has concerns about the source of the cash for those deposits, however, the Tribunal will not test the subsequent information in the statutory declarations provided after the second hearing as the criteria in cl 457.223(4)(f) is only relevant to adverse information about the person (in this review, the sponsoring business) or a person associated with the person. The meaning of ‘associated with’ for the purposes of the Act and Regulations is set out in reg 1.13B and, although it can include officers of an entity, it does not include employees so the sponsoring business is not associated with the applicant. For similar reasons, and as the Department is better placed to investigate the claim that the applicant worked in breach of his visa, the Tribunal will not make a finding on whether or not the applicant meets the criteria in cl 457.221 which requires an applicant to have complied substantially with the conditions that applied to the last held substantive visa held by the applicant and to any subsequent bridging visa.

26. For the above reasons, the Tribunal found in the review of the delegate’s decision to refuse the business nomination of the sponsoring business that the sponsoring business met the requirements of reg 2.72(9) and, therefore, the Tribunal also finds that the applicant meets the requirements in cl 457.223(4)(f).

    DECISION

27. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.223(4)(a) of Schedule 2 to the Regulations; and

    ·cl 457.223(4)(f) of Schedule 2 to the Regulations.

    Namoi Dougall
    Member

    
    

    ATTACHMENT - CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.